The H-1B is the most sought-after nonimmigrant employment-based visa in the United States. It’s not surprising why the available annual slots get filled up sometimes within hours of the application window being open. To avoid missing out on the ever-changing regulations and opportunities that H-1B has got to offer, staying updated is crucial. This article presents you with the answers to the most frequently asked questions (FAQ) for the H-1B.
What is an H-1B Visa?
The H-1B category is a nonimmigrant employment-based visa that applies to foreign nationals eligible to perform specialty services in different occupations and is the most popular nonimmigrant employment visa in the United States. You may apply for and obtain an H-1B visa under any of the available three subcategories: Specialty Occupations; Department of Defense (DOD) Cooperative Research and Development Project; or Fashion Model.
What Does Specialty Occupation Mean?
A specialty occupation is one that the United States Citizenship and Immigration Service (USCIS) deems worthy of an H-1B visa. For a job to meet the “specialty occupation,” it must have one of the following criteria:
- The position requires a bachelor’s or higher degree or its equivalent
- The job is so complex that it cannot be performed by an individual with lesser qualification
- The employer typically requires a degree or its equivalent for the position
What Qualifications Must I Have to Be Eligible for H-1B Visa?
To qualify for an H-1B visa, you must have a job offer from a U.S. employer, and the job must match the specialty occupation requirements listed above. This implies that you have the academic qualifications and experience necessary for the “specialty occupation.”
Who Can File H-1B Petition?
An H-1B petition can only be filed by your prospective employer, as beneficiaries cannot self-sponsor their own petitions. Although there is a very rare exception to this, whereby an H-1B petition is filed using a U.S. organization owned by the visa beneficiary, these types of cases are usually subjected to much more scrutiny by the USCIS.
Does H-1B Have Annual Cap and How Does It Work?
Yes, H-1B has an annual cap. A visa cap is the annual numerical limit indicating the number of visas that can be issued in a year under that particular category. The H-1B classification is one of the visas with this regulation. The cap is decided by Congress and is currently set at 65,000 slots for the regular cap. Out of this number, 6,800 are reserved for Chile and Singapore nationals leaving other applicants with the remaining 58,200.
What is H-1B Masters Cap?
Apart from the above 65,000, there is also an additional 20,000 visas available to applicants with a U.S. master’s degree or higher degree from reputable institutions. This is sometimes referred to as the H-1B master’s cap or advanced or master’s degree exemption. Therefore, in total, 85,000 H-1B visas are issued every year.
Are All Petitions Subject to the Cap?
Some petitions are actually exempt from the cap. Here are some examples of cap-exempt petitions:
- Petitions to transfer H-1B jobs (once the beneficiary has already been counted against the cap)
- Petitions to extend H-1B status
- Petitions for individuals with the following employers:
- Institutes of higher education
- Nonprofit organizations associated with institutes of higher education
- Governmental research centers
When Can I File My H-1B Petition?
Because it is a cap-regulated category, the H-1B application process has a timeframe for employers to submit petitions on behalf of their prospective employees. The H-1B annual window opens on the first business day in April and remains open until either the 85,000 petitions have been collected by the USCIS or seven days have passed. Whichever event comes last out of the two will be the end of submission for that year.
Because it has relatively low requirements compared to some other nonimmigrant work visas, the H-1B is highly sought-after and the limited cap is filled up sometimes within hours after opening the filing window. Therefore, you must get all necessary documents ready, ensure the form is properly completed, and submit as soon as the window opens.
What is the H-1B Labor Condition Application (LCA)?
The H-1B Labor Condition Application (LCA) is one of the requirements for the application process. It helps the Department of Labor (DOL) determine whether or not the employer is eligible to hire an H-1B worker and has the ability to pay the prevailing wage.
The LCA is the first step of the process and must be filed with and certified by the DOL before an H-1B petition can be submitted to the USCIS. An LCA covers the following information about the employee, the employer, and the job position for H-1 beneficiary:
- The job title
- Duration of the job offered
- Location of the job position
- The prevailing wage for the same position in that area
- Full-time or part-time status
- Salary offered for the position
- The number of employees (an employer may file one LCA for multiple H-1B workers as long as they will be working in the same position)
- Employer’s contact information
The LCA is also used to verify four attestations in order to protect current U.S. workers. The attestations are that:
- The prevailing wage will be paid
- There is no strike or lockout in effect at the beneficiary’s proposed place of work
- The current employees have been notified of the intent to hire the beneficiary
- The working conditions of the current employees will not be adversely affected by hiring the beneficiary
Is There a Specified H-1B Salary and How is it Determined?
Yes. U.S. employers hiring H-1B workers are required by the DOL to pay no less than the prevailing wage or actual wage for the position. This is one of the main issues covered by the H-1B LCA, which helps ensure that both the employees and employers get fair treatment in terms of service delivery, salary, and remuneration.
The prevailing wage, according to the DOL, is “the average salary paid to similarly hired workers in a specific occupation in the area of intended employment.” It is specific to a position within the local area where the H-1B will be performed.
The actual wage is the wage paid by an employer to those with experience and qualifications similar to the H-1B employee’s qualifications and experience for the specific job in question at the place of employment.
Are H-1B Holders Required to Pay Taxes in the U.S.?
You are required to pay both state and federal taxes as an H-1B worker. Also, because you are eligible for social security benefits, you must pay social security taxes and medicare as well.
What is H-1B Visa Processing Time?
The LCA is usually processed by the DOL within seven working days after submission. After that, your employer will need to file the I-129, Petition for Nonimmigrant Worker to the USCIS. Depending on the workload at the service center in charge of your petition, the I-129 takes between three and six months. If your petition is not properly filed, or there is missing evidence or any issue along the process, the processing time may take much longer.
Can I Expedite the H-1B Petition Process?
Yes. You can cut the processing time down to just 15 calendar days. The USCIS allows petitioners to take advantage of their premium processing service for H-1B visas, which means your petition will be processed and you will receive a decision within the 15-day period. The service will require the submission of an I-907 form and will cost you an additional $1,440.
However, the USCIS has suspended the premium processing service for H-1B visas in the past, so be sure that a suspension is not in place before submitting the I-907, as you will not receive a refund if the premium processing petition is not accepted due to a suspension.
Additionally, premium processing can only be used for the I-129 form’s processing time. It cannot be used to expedite any other part of the process. It also does not increase your chances of approval and does not change the employment start date of October 1 for all cap-subject petitions.
What are the H-1B Processing Fees?
The H-1B processing fees may vary depending on a number of factors. The costs are as follows:
- H-1B basic filing fee – $460
- H-1B registration fee – $10 (for cap-subject petitions)
- Fraud prevention and detection fee – $500
- Public Law 114 – 113 fee: $4,000 for organizations that have up to 50 employees with over half of them being H-1B or L-1 holders.
- Consular visa processing charges – approximately $100
If you are going to use the premium processing service, you will need to add $1,440 to whatever fees are applicable to you. The attorney fee is another voluntary fee you will need to consider.
How Long Can I Stay In the United States on an H-1B Visa?
The H-1B total duration is six years. The initial period of stay for a newly admitted H-1B nonimmigrant is three years. After the first three years, you may get an extension of stay for up to another three years. If you wish to apply for an H-1B visa again, you must first leave the U.S. and allow at least one year to pass before reapplying. However, you may be entitled to stay beyond six years if you have a pending green card application with the USCIS.
How Does Transferring My H-1B Work?
An H-1B transfer means moving from one H-1B employer to another. To be eligible for a transfer, you are required to be physically present in the U.S. and your new employer will need to submit an H-1B transfer petition to the USCIS. Once the new employer has submitted the petition and received a favorable Notice of Action receipt (I-797C), you can start working in your new petition.
Can I Transfer From a Cap-Exempt Employer to a Cap-Subject Employer?
You can, but this is not a way for you to circumvent the cap. If you have a cap-exempt job and you would like to transfer to one that is subject to the cap, you will need to have the new employer file a cap-subject petition when the lottery window opens in April.
Can I Bring My Family With Me?
Yes. H-1B workers are allowed to bring their spouses, children (under 21 years of age), and other dependents to the U.S. There is a separate visa for this known as the H-4 nonimmigrant classification. Just like you did, they will also need to go through the required immigration process. If approved, they can live and study in the U.S., though they are not allowed to work on H-4 status without employment authorization. Before they can be eligible to work, they must file an I-765 form for an employment authorization document (EAD), which can only be done after the principal H-1B holder has commenced your green card process.
What Will Happen If My H-1B Employment Is Terminated By My Employer?
It is possible for your employer to terminate your H-1B job before the end of your authorized period of stay. If that happens, there is a grace period of 60 days after a loss of employment. After that, you will be out of status because you are required to have a job to maintain your status. In such a scenario, the employer will be liable for the cost of your return transportation to your home country. However, if you voluntarily resign, your employer will not be held liable for the cost.
What Does Dual Intent Mean?
A dual intent visa means you can pursue a green card while you are under a nonimmigrant status. This provision is available to H-1 holders, meaning you can continue living and working on a permanent basis. The process is known as adjustment of status and has its own series of immigration and labor steps. To start with, if you are pursuing an employment-based green card, you will need a U.S. employer who is willing and eligible to sponsor your green card.
The employer will need to file a PERM Labor Certification as well as an I-140 Immigration Petition for Alien Worker on your behalf. However, it must be noted that your current H-1B job position may not meet the employment eligibility criteria for a green card application. Therefore, the employer will need to offer you a position that qualifies under an employment-based green card category.
How Our Immigration Attorneys Can Help?
The H-1B nonimmigrant category has a lot of ever-changing regulations that applicants and employers must be aware of. Knowing the details of your status will help you make the most of it and guard against job termination, visa denial, and violation of immigration and labor laws. This is why it is important to work with an immigration attorney throughout the process.
Here at Immi-USA, we have a team of highly experienced H-1B attorneys who have helped thousands of qualified individuals obtain their visas. For any questions regarding the visa application process, H-1B jobs, and H-1B the green card application process, our attorneys will help you through every step of the process. Get in touch and schedule a consultation with our H-1B lawyers today by filling this contact form.