H-1B Frequently Asked Questions

The H-1B visa is one of the most common visa types that allows US employers to temporarily hire foreign workers in specialty occupations that require specialized knowledge. It is a great option for people who meet the eligibility requirements to come to the US. Call Kats Immigration Law today and schedule an appointment with our immigration attorney to find out more about H-1B status and if you can come to the US with this visa. Alina Kats answers all your questions and concerns and helps you stay organized to navigate this process. She works closely with the employers and handles all paperwork effectively to improve your chances of a successful H-1B visa application.

The H-1B visa is a crucial program for US companies that need to hire skilled foreign workers and professionals seeking career opportunities in the US. It benefits employers who gain access to a global talent pool, and gives employees a chance to work and even settle in the US if everything works well for them. However, the program’s complexity, especially the annual cap, the lottery system, and the process for transitioning to permanent residency can be challenging and may require professional guidance.

Read on to learn all about the H-1B visa if you are considering applying for it. These frequently asked questions focus on the key points that can help you make the right moves and succeed. With complete knowledge of the visa process, eligibility requirements, potential challenges, and its advantages and disadvantages, you can understand what you are getting into and prepare yourself the best way.

What is an H-1B?

The H-1B is a non-immigrant, employer-sponsored visa classification that allows foreign nationals to work in a specialty occupation for up to six years with limited exceptions. This visa enables employers to hire foreign workers with specialized knowledge and skills in fields like technology, engineering, and finance.

Employer-sponsored means that the employer must apply for the H-1B on behalf of the prospective H-1B employee through the United States Citizenship and Immigration Services. A specialty occupation is a position that requires expert knowledge and skills, and at least a bachelor’s degree in that field. Since the procedures and the documentation required for processing H-1B are complex, seeking help from an immigration attorney to complete the paperwork and guide you in the right direction is essential.

What kinds of occupations qualify for H-1B status?

A wide range of professional occupations qualify for H-1B status. Professional-level occupations in engineering, biology, physics, social sciences, mathematics, business administration, architecture, healthcare, and finances will qualify for H-1B.

A bachelor’s degree is always the minimum requirement for an occupation to qualify for H-1B status, but depending on the position, an advanced degree such as a Master’s or Ph.D. may be necessary.

Who is eligible for H-1B status?

H-1B status is available to an individual who has been offered a temporary professional position by a U.S. employer. A bachelor’s degree, or higher in a related area is the minimum educational level required to qualify for H-1B status, and the H-1B employee must have a bachelor’s or a higher degree.

Can anyone with a bachelor’s degree qualify for H-1B status?

Not necessarily. The job itself must require a bachelor’s degree or higher in a specialized field. An individual must have that specific degree to qualify for H-1B status.

Is it difficult to get H-1B status in certain kinds of jobs?

It is not easy to get H-1B status for certain types of jobs, including positions in sales if they do not require special training. Some positions in the industry, particularly related to computer programming, can be difficult as the minimum requirements for many jobs are now always well defined. An immigration lawyer can guide you regarding the jobs that can be easily secured.

Is there a minimum salary for a job in H-1B status?

Yes. The employer interested in sponsoring an H-1B worker should have documents that certify their ability to pay the prevailing wage or the actual wage, whichever is higher. The U.S. Department of Labor (DOL) wants to check that the H-1B workers get a salary similar to occupations at the location of the intended employment. The employer also needs to declare that they are not displacing any local workers to hire a foreign worker and that there are no strikes or other work stoppages in the occupation for which the H-1B applicant will be employed.

What an employer must do to hire an H-1B worker?

The employer must submit a Labor Condition Application (LCA) to the U.S. Department of Labor (DOL) before filing an H-1B petition. This form ensures the employer meets certain wage and working conditions required for the H-1B worker. It is submitted with supporting documentation to the USCIS.

The LCA must be certified by the DOL, and the employer must attest to the following:

• Wage requirements – The employer must pay the prevailing wage to the H-1B worker for the job in the area where the work will be performed or the actual wage paid to other employees with similar experience and qualifications, whichever is higher.
• Working conditions – It is the employer’s responsibility to ensure that hiring an H-1B worker will not negatively impact the working conditions of the US workers employed in similar positions.
• Notice of filing – Employers must post a notice at the workplace that says they are filing an LCA for an H-1B worker. This notice should be displayed for 10 business days to inform employees of the petition.

How long does it take to obtain H-1B status?

The length of time required to obtain an H-1B visa varies based on the sponsoring employer’s circumstances, DOL, and USCIS. The total processing time at DOL, including prevailing wage determination/LCA, and USCIS, processing can take as long as six to seven months or longer.

Remember, processing times at the USCIS service centers can vary. It is necessary to check the processing times at the USCIS website to learn more about it.

How many H-1B visas are issued each year?

The regular cap for H-1B visas is 65,000 for every year for the entire country. The cap refers to the limit of the H-1B visas allowed per federal fiscal year which begins on October 1st and ends on September 30th of the following year.

This number varies slightly due to exemptions or changes in regulations. An additional 20,000 visas are available for those holding a master’s degree or higher from a U.S. institution.

Who has an exemption from the H-1B cap?

Universities, non-profit entities, research organizations and government research organizations are exempt from the H-1B cap. The employers can submit an H-1B cap application to the USCIS any time during the year without worrying about the fiscal year limit. However, if an individual working for an H-1B cap exempt employer changes job to an employer that is not exempt, they may become subject to the H-1B cap.

What is the best time to submit the H-1B application to the USCIS?

It is best to apply to the USCIS six months before the selected H-1B start date. The employers subject to the gap should submit the H-1B application in April for the start of the new fiscal year in October when the new batch of 65,000 H-1B visas become available.

Do international students have to use Practical Training (F-1) or Academic Training (J-1) before I can get the H-1B?

While most F-1 or J-1 students will find it advantageous to obtain Practical Training or Academic Training to begin working as soon as they are offered the job, it is not a necessity.

Are individuals with immigration status J-1 Exchange Visitor eligible for H-1B status?

It is possible, but not in all cases. Certain J-1 Exchange Visitors may be subject to a Two-Year Home Country Physical Presence Requirement and are not eligible for the H-1B status until the requirement has been satisfied or waived by the USCIS based on a recommendation from the U.S. Department of State. If this two-year requirement does not apply, they can apply for H-1B status if they meet other eligibility requirements.

Can individuals residing outside of the US obtain an H-1B?

Yes. An employer can apply for the H-1B on behalf of an individual even if they are residing outside of the US. Once the application is removed, they would receive the visa stamp at an US embassy or consulate and enter the country.

Can a foreign worker change jobs after getting H-1B?

H-1B approval is employer-specific and only allows the visa holder to work for the employer who filed the petition. If the foreign worker changes jobs, due to any reason, the new employer must apply for the H-1B for them. Employers who plan to terminate their foreign worker’s employment, change job duties, or other conditions of employment must consult an immigration attorney to submit an amended petition to the USCIS.

Is H-1B status the only way for foreign workers to work in the US?

No. Several other non-immigrant, temporary statuses allow foreign workers to work in the US, such as the treaty/trader investment classifications, the TN status for Canadian or Mexican citizens, the J-1 exchange visitor status, the E-3 status for Australian citizens, or the O-1. An immigration attorney can provide the best guidance regarding the eligibility requirements for these immigration categories.

How can an attorney help in the H-1B petition process?

An immigration attorney can help the employer, as well as the foreign worker, by preparing and presenting the best case for approval of the H-1B status application to the USCIS. However, it is important to remember that even the most experienced and qualified attorney cannot guarantee the success of an H-1B application nor can an attorney obtain an H-1B for an unqualified person.

In most cases, attorneys can determine in advance whether or not the application for the specific position or credentials would qualify for the visa.

What is the visa status of the spouse and children of the H-1B worker?

The legal spouse, children under 21 years, and other dependents can apply for H-4 status. H-4 status holders are not eligible to work except in limited situations.

Knowing how US immigration laws apply to your particular situation makes it easy to navigate the immigration system and enjoy the best outcomes.

The H-1B visa is the most popular and valuable way to come and work in the US, especially for highly skilled professionals in specialized fields. However, the competitive nature of the process, limited number of visas available every year, and the complex paperwork make it a real challenge. Alina Kats offers the best advice when it comes to bringing skilled foreign workers to the US. She has been working as an immigration attorney for years, understands how these visa processes work, and ensures your application complies with current laws to achieve success.