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What is the H-1B Visa?

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February 4, 2022

Key Takeaways

The H-1B visa is a U.S. work visa that allows foreign nationals working in specialty occupation jobs to live and work lawfully in the United States for U.S. employers. The H-1B visa is valid for a maximum of 6 years, and H-1B visa holders are eligible to apply for employment-based green cards. This article is a guide to the H-1B visa. It explains specialty occupation and the eligibility requirements for the H-1B visa. It also explains the H-1B visa application process and what happens after applying. You will also find the answers to some of the most frequently asked questions about the H-1B visa in this article.

Table of Contents

What is the H-1B visa cap?

To apply for H-1B status, you will likely need to register with U.S. Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS). There is an annual cap on the number of H-1B workers USCIS may accept. So, USCIS must select you to apply for this visa. USCIS offers 65,000 new H-1B visas to foreign workers each fiscal year. Those who hold Master’s degrees from U.S. institutions are favored: USCIS issues an additional 20,000 H-1B visas to those with Master’s degrees or higher. In total, the H-1B cap is 85,000 visas annually.

Suppose the U.S.-based employer sponsoring you is a higher education institution, a non-profit organization affiliated with a higher education institution, or a governmental research organization. In that case, the H-1B cap will not apply to you.

What are the H-1B visa eligibility requirements?

The H1-B visa is for those who meet specific criteria based on their employment and educational background.

Who qualifies for an H-1B visa?

You are eligible for the H1-B program if the following apply to you:

  • You have a specialty occupation job offer from a U.S.-based employer.
  • You have a Bachelor’s or higher degree (or your home country’s equivalent degree) in your field.
  • Your employer can prove there’s a shortage of qualified U.S. applicants for this specialty role.

”Specialty occupation”

The H1-B visa program is for those who hold “specialty occupations.” To qualify as a specialty occupation, a job must meet one of the following criteria:

  • The position has a minimum entry requirement of a Bachelor’s degree or higher.
  • The degree requirement for the job is common to the industry. Alternatively, you may only perform the job if you have a specific degree.
  • The employer requires a Bachelor’s degree or the equivalent for this position (for example, an Associate’s degree plus a set number of years of work experience).
  • The job responsibilities are specialized and would require knowledge associated with the receipt of a Bachelor’s degree or higher.

What is the H-1B visa process?

If the H-1B cap applies to you, the first step is for you to register with USCIS online to enter their annual lottery.

You must create a new online account with USCIS to enter the lottery, even if you already have a previous account. You must also pay a registration fee and submit information about yourself and the company sponsoring you. An immigration attorney or other representative may also complete this information on your behalf.

The registration period for the lottery only runs for 14 days every year. If your occupation is subject to the visa cap and you fail to register, you won’t be able to apply for the H-1B visa category.

Once you have completed your registration, you will receive a status update from USCIS on your online account. The status will display as one of the following:

  • Submitted: You submitted a valid registration.
  • Selected: You may apply for an H-1B nonimmigrant visa.
  • Not Selected: You may not apply for an H-1B visa at this time.
  • Denied: If you register for the chance to apply for an H-1B visa with the same employer multiple times, USCIS will reject all of your registrations.
  • Invalidated-Failed Payment: You have registered, but your payment was invalid.

Once the registration period is over, USCIS will notify you whether they have selected you. You may only apply for an H-1B visa if selected, unless you are eligible for an exemption.

If selected to submit an H-1B application, your employer can then start to file an H-1B visa petition on your behalf. If your job is cap-exempt, your H-1B application process begins at this point. Your U.S.-based employer must submit a Labor Condition Application (LCA) to the U.S. Department of Labor (DOL) for certification. The LCA shows your employer will pay you the same prevailing wage and offer the same working conditions as their similarly-qualified U.S. workers in your geographic area or worksite. New employers must recognize these protections for all H-1B temporary workers.

Once the DOL has certified your employer’s LCA, your employer must complete Form I-129 (the “Petition for a Nonimmigrant Worker”). They must file the LCA and Form I-129 to U.S. Citizenship and Immigration Services (USCIS) and pay any required fees. They may also need to provide USCIS with additional documents, such as evidence of your education, training certificates and professional membership documents, foreign labor certification, your résumé, a letter of employment, or a letter of support.

If USCIS approves your Form I-129 and you are already in the United States on a different visa that doesn’t make you eligible for work authorization, you must wait until your H-1B employment status activates before beginning to work. You won’t have employment authorization in the United States until after your H-1B status starts. If USCIS approves your Form I-129 and you are not in the United States, you will have to continue your application using consular processing. You must complete Form DS-160 (the “Online Nonimmigrant Visa Application”) on the Consular Electronic Application Center website. The form takes 90 minutes to complete, and you’ll need to pay an application fee. After submitting the form, you’ll need to schedule an interview at your local U.S. embassy or consulate.

Be sure to bring the following documents to your interview:

  • Your passport (that must be valid for at least six months after your intended date of entry to the United States).
  • A printout of the confirmation page from your Form DS-160.
  • A copy of your approved Form I-129 H-1B petition and your Form I-797 (the “Notice of Action”) approval.
  • The receipts proving you have paid the appropriate application fees.
  • A passport-sized photo of yourself that meets the U.S. Department of State requirements.

You should expect to answer questions about yourself, your job, your experience, your employer, and your travel history at your interview.

What happens after applying for the H-1B visa?

After applying for the H-1B visa, U.S. Citizenship and Immigration Services (USCIS) will update your account’s case status online. Your U.S.-based employer will send you a petition receipt notice containing your petition receipt number. You must enter this receipt number on the USCIS website to check the status of your case. If approved, you will see an approval message on the USCIS website. USCIS will then mail your employer or your employer’s immigration attorney the approval notice. Your employer or their representative will then send you a copy of the approval notice.

Frequently asked questions

Read on if you’d like answers to some of the most frequently asked questions (FAQs) about the H-1B visa application process and the benefits of this particular visa.

Who can sponsor the H-1B visa?

Any U.S.-based employer can sponsor an individual for an H-1B visa, as long as they can prove that the position is a specialty occupation lacking qualified U.S. applicants. Your prospective U.S.-based employer may register to file a petition on your behalf.

Can I get a green card if I have the H-1B visa?

The H-1B visa is a “dual-intent” visa. Dual-intent visas permit you to later apply for a green card. You may apply for and obtain permanent residence while in the United States on an H-1B visa. If you are in the United States on an H-1B visa and want to remain in the country for over six years, you may apply for a green card. If you do not receive a green card before your H-1B visa expires, you must live outside of the United States for at least one year and reapply for another H or L visa to return. Alternatively, if you are an H-1B visa holder married to a U.S. citizen or green cardholder, you may be able to pursue a marriage-based green card.

Does my family get status too if I have the H-1B visa?

Yes, your immediate family members may be able to get status too if you hold an H-1B visa. Your spouse and any of your unmarried children under 21 can apply for H-4 visas. To learn more about H-4 visas, visit the U.S. Citizenship and Immigration Services (USCIS) website.

Can I expedite my H-1B visa processing?

Yes, you may expedite your H-1B visa processing. You can request premium processing by submitting Form I-907 (the “Request for Premium Processing Service”). You must pay a $2,500 filing fee with this form. You may submit Form I-907 with your original Form I-129, or you may submit it later to the same service center processing your Form I-129.

When does the H-1B visa lottery begin?

The exact start date of the H-1B visa lottery varies from year to year. In 2022, the visa lottery’s initial H-1B registration period opens at noon Eastern Time on March 9. The lottery closes at noon Eastern Time on March 25. You and your employer must wait until March 9 to begin your registration. 

How do I check my H-1B visa lottery results?

You may check the results of the H-1B lottery by logging into your U.S. Citizenship and Immigration Services (USCIS) online account. Your account will reveal your application status. In previous years, USCIS has released status updates by the end of March.

Conclusion

With an H-1B visa, you’re permitted to explore pathways to permanent residency. Some H-1B visa holders may be eligible to apply for marriage-based green cards if they meet and marry a U.S. citizen or green card holder during their time here. Applying for a green card can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your green card case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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