H-1B Visa

The H-1B visa allows foreign workers to enter the US and work in a variety of fields ranging from architecture and engineering to health and medicine. In addition, H-1B is also an option for foreign nationals entering the U.S. to offer exceptional services relating to cooperative research and development projects administered by the U.S. Department of Defense; Professional Nurses; and Distinguished fashion models.

The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration. H-1B status is granted in increments of up to three years at a time and a person may hold H-1B status for a maximum of six years. An employee may receive extensions of H-1B status beyond six years in certain circumstances, if s/he is in the process of applying for employment-based permanent residence (commonly referred to as the “green card”).

Generally, in order to qualify for H-1B classification, the applicant must have at least a U.S. bachelor’s degree or its equivalent AND the job sought must require at least a bachelor’s degree or its equivalent in a specific specialty field. These two requirements in combination are referred to as “specialty occupation” requirement. It must be noted that this is not a self-petitioning category, and the applicant must have a sponsoring employer in the U.S.

The spouse and unmarried children below the age of 21 are allowed to accompany or join the H-1B worker as H-4 dependents. However, they cannot work unless they qualify for a work visa. H-4 dependents can enroll and attend schools in the U.S. without obtaining a student visa.

Requirements to be eligible for H-1B visa:

  • Employer and Job Offer Requirements:
    • Must be a U.S. employer as defined under the immigration regulation;
    • The position offered requires knowledge, both theoretical and applied, obtained through studies at an institution of higher learning;
    • The position requires a specific course of study which relates directly to the position;
    • Must have bona-fide need for the position. Speculative needs may not be fulfilled by H-1B visas and US Citizenship and Immigration Services (USCIS) exercises heavy scrutiny to ensure the legitimate need of the employer.
  • Employee requirements:
    • Must have at least bachelor’s level education or its equivalent (through experience) in the field directly related to the position (job offer);
      • Must have requisite license, if the position requires licensure. Ex: Certified Accountant; Orthodontist, Attorney (Lawyer) etc.

Procedure for Applying for an H-1B status:

  1. Job Offer from U.S. Employer- It is imperative to have an employment offer from a U.S. Employer.
  2. Petition with U.S. CIS:
    • U.S. Employer (“petitioner”) files a petition with the USCIS to grant H1B classification for the position; and
    • Requests for Change of Status to H-1B for the candidate (“beneficiary”) (OR) requests to notify a U.S. Consulate abroad to issue an H-1B visa to the beneficiary.
  3. If the beneficiary is in the U.S. on any other status, an approval of change of status request would grant him/ her H-1B status. On the contrary, if the beneficiary is outside the U.S. and/ or if the request is for issuance of an H-1B visa at a U.S. Consulate abroad, the beneficiary could apply for H-1B visa upon approval of the petition by USCIS.
  4. Procedure to apply for H-1B visa is illustrated below:
  • Obtain Approval Notice (Form I-797) from USCIS for the H-1B petition filed by a U.S. Employer
  • Complete Form DS-160, Online Nonimmigrant Visa Application at https://ceac.state.gov/genniv/, upload photos while completing the online Form I-160, and print the confirmation page for interview
  • Pay the non-refundable visa application fee
  • Make an appointment for an interview at the U.S. Embassy or Consualte

Documents required for applying for an H-1B visa:

  1. Valid Passport: Applicant’s passport must be valid for at least six months at the time of applying for H-1B visa.
  2. Form DS-160 Confirmation Page.
  3. Application fee payment receipt.
  4. Photographs and Biometrics – Applicant will be required upload photo while completing the online Form DS-160. Alternatively, few U.S. Embassies/ Consulates have arrangements to setup a separate appointment for biometrics and photographs requirement. Applicants are required to follow the procedures of respective consulate they intend to apply at pertaining to completion of photographs and biometric requirement.
  5. Documents in support of the Job Offer, which include but not limited to H-1B Approval Notice, Labor Condition Application (LCA), and other specific documents pertaining to the position.

Few other things to note about H-1B classification:

  1. Most first-time H-1B petitions are subject to the annual visa lottery, what is called as “CAP”. Annual lottery generally takes place in months of March and April every year, as per the procedures put in place by the government each year.
  2. Documentation and standard of proof for all kinds of H-1B petitions – be it a first time filing, change of employer, or a renewal, is more or less the same.