H-1B Visa | Specialty Occupation Work Visa

The H-1B Visa is a specialty occupation work visa that allows non-immigrant, foreign workers to be temporarily employed in the United States. H-1B visas are available to individuals who are employed in specialty occupations; engaged in research and development projects sponsored by the U.S. Department of Defense (DOD); or recognized as fashion models of distinguished ability or merit.

H-1B Visa applicants must demonstrate that they have extensive technical expertise in specialized fields that require a bachelor’s degree such as finance, engineering, computer programming, science, mathematics, etc. Unlike some other non-immigrant visas, H-1B’s are submitted by employers not employees.

The H-1B1 Visa: Employment-based visa for Specialty Occupations

The H-1B1 visa is an employment-based visa for foreign nationals that hold at least a Bachelor’s degree or higher in a specialty occupation. Individuals are eligible to apply for an H-1B1 temporary work visa if they meet the following criteria:

• Their job must be in a specialty occupation within or related to their field of study
• They already have a working relationship with the petitioning U.S. employer
• Their employer must submit all evidence and file all forms correctly
• The employer must pay the non-immigrant worker equal to or more than the prevailing wage for their occupation
• They have licensure, certification, or registration to perform their specialty occupation in their intended state of employment
• The job is so specialized that it can only be performed by someone with a degree
• Applicants must have at least one of the following:
1. A bachelor’s degree or higher from an accredited college or university
2. An equivalent degree from a respected foreign educational institution
3. Recognition of expertise through experience

The H-1B2 Visa: Employment-based visa for Department of Defense R&D

The H-1B2 visa is an employment-based visa available to those involved in research and development projects sponsored by the U.S. Department of Defense (DOD). Individuals are eligible to apply for an H-1B2 temporary work visa if they meet the following criteria:

• The cooperative research and development project is provided under a government-to-government agreement implemented by the U.S. Department of Defense
• They have licensure, certification, or registration to work in their intended state of employment
• Applicants must have at least one of the following:
  1. A bachelor’s degree or higher from an accredited college or university
  2. Equivalent degree from a respected foreign educational institution
  3. Recognition of expertise through experience

The H-1B3 Visa: Employment-based visa for Fashion Models

The H-1B3 Visa is an employment-based visa available to fashion models of distinguished ability or merit. Individuals are eligible to apply for an H-1B3 temporary work visa if they meet the following criteria:

• They are a prominent fashion model
• They are a fashion model of distinguished merit and ability

Applying for an H-1B Employment-Based Visa

If an applicant meets all of the H-1B visa requirements related to their specific classification, they may begin the application process. The H-1B employment-based visa application process is largely the same across the three visa types, and is mostly completed by the employer’s immigration counsel:

1. Employer submits Form I-129 (Petition for a Non-Immigrant Worker) to USCIS
2. (H-1B and H-1B3 ONLY) employer submits Form ETA-9035 LCA (Labor Condition Application) to U.S. Department of Labor
3. Employer pays filing fees associated with Form I-129
4. Employer submits any relevant employment evidence and supporting documents
5. I-129 is approved by the USCIS
6. Employee applies for their H-1B visa at a U.S. embassy or consulate
7. Employee applies to U.S. Customs and Border Protection (CBP) for admission

Labor Condition Application (LCA) Requirements

An employer of an H-1B1 Visa or H-1B3 Visa applicant must file a Labor Condition Application (LCA) with the U.S. Department of Labor. The application requires the employer to certify that it will comply with the following labor regulations:

• The employer will pay the beneficiary a wage no less than that paid to employees holding a similar position in the same geographic location
• The employer will guarantee access to acceptable and safe working conditions
• Notice of the filing will be given to Union representatives or posted in the place of business

Chances of H-1B Visa Application Success

The law sets an annual cap on H-1B visas at 65,000, which makes the H-1B visa very competitive to obtain. There is an additional 20,000 H-1B visa cap for those with advanced degrees (Master’s or higher).  Compared to filing for permanent residence, however, applying for non-immigrant visas—like the H-1B—is faster and easier, making them a first choice for employers. The annual cap forces employers to also consider other non-immigrant visas, often deferring to L-1B (specialized workers), L-1A (managers and executives), E-2 (treaty investor), E-1 (treaty trader), or E-3 (Australians) visas to bypass the quota.

Not everyone is subject to the cap—the quota does not apply to renewals and certain other applicants. For example, up to 20,000 master’s degree-holding foreign nationals are exempt from the cap allowing them to work at U.S. universities, non-profit research facilities, and government research organizations without competing with other H-1B applicants. There are Free Trade Agreements that reserve an additional 1,400 H-1B1 visas for Chilean nationals and 5,400 H-1B1 visas for Singapore nationals. Any of these special, additional H-1B1 visas that are not used are made available to anyone during the following year.

Family H-1B Visa Applications

An H-1B’s spouse and children (under 21) may accompany the applicant to the U.S. with an H-4 non-immigrant status. H-4’s can remain in the U.S. as long as their H-1B remains a non-immigrant worker. H-4 spouses and children are not eligible for work, but they are permitted to attend school, obtain a driver’s license, and open a bank account. Some spouses can file Form I-765 (Application for Employment Authorization), but only if their H-1B holder has begun the process of becoming a permanent resident.

H-1B Visa Extensions

Initially, an H-1B visa is valid for 3 years, but it can be extended up to a total of 6 years. H-1B workers can petition for a longer stay, beyond 6 years, if:

• The beneficiary submits a Form I-140 immigrant petition or PERM labor certification before their 5th year—they can renew in increments of 1 year until a decision is made
• The beneficiary has an approved Form I-140, but cannot begin their green card process yet due to per capital country limitations—they may obtain a 3-year extension

Transferring your H-1B Visa Between Employers

H-1B visa beneficiaries are only permitted to work for the employer that filed their initial paperwork. If their employer terminates their contract before the end of their stay, the employer is responsible for the non-immigrant worker’s return transportation, but they are not responsible if the worker resigns voluntarily. If an H-1B worker quits or is terminated, they must apply and be granted a change of status to obtain another visa in order to change employers. If their H-1B amendment is denied, they must leave the U.S. within a short period of time.

Path to Permanency

An H-1B visa is one of the most desirable non-immigrant visas because it is one of the few work visas that can lead directly to a green card. An H-1B worker can continue towards becoming a permanent resident without needing to change visas.

Ready to Apply?

At The Batrakova Law Office, our H-1B attorney is ready to help you make your next career move to the U.S. Our H-1B visa lawyer is highly-skilled and trained in the complexities of employer-employee visa relations. Call us when you’re ready to take the next step or fill out the contact form below.