The H-1B visa is a work permit that allows a foreign worker to go to the United States and work for an American company. The foreign worker must specifically work in a field which requires specialised knowledge for which the employer cannot find a US-based worker.
When applying for an H-1B visa, the applicant is sponsored by the American company that has hired them. The employer pays the visa fees and submits the required paperwork on behalf of the applicant.
The visa, which is initially valid for three years, can be extended up to six years. Some exceptions also allow applicants to further extend their visas, depending on the type of work being done.
In case an H-1B employee quits her job, or is dismissed, she has three options:
- Find a new job and complete new paperwork
- Apply for a change of status (including application for green card or PR)
- Return to your her country, or be deported
The grace period to find a new employer is 60 days.
You can apply for fresh H-1B visas even after you return to your home country, but will have to face the same process as a fresh applicant.
H-1B is one of the few visas offered by the United States that allow family members to join the visa holder during their length of stay in the US. To do so, the dependent family members (spouse and unmarried children under 21 years of age) will have to apply for the H4 visa.
H4 visa holders can go to school, open bank accounts, get a driver’s license and even receive a social security number. They can also legally work in the US after applying for an Employment Authorisation Document.
However, the H4 visas are valid only for as long as the supporting H-1B visa is valid.
What you need
To be eligible for the visa, you must meet the following requirements:
- A bachelor’s degree or master’s degree (or a foreign equivalent)*
- Degree requirements for the job ( ex: M.D. for a surgeon)
- Work must be one that requires a professional in a specialty occupation
- Deep knowledge in the required field
- Employer must show the lack of qualified US applicants for the position
*The applicant can bypass this if they have at least 12 years of specialised work experience
The United States Citizenship and Immigration Services (USCIS), which administers the country’s immigration laws, defines a speciality occupation as one where “the nature of the specific duties is so specialised and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.”
Some of these specialisations are: engineering, journalism, medicine, business, research and law.
The Application process
1. Finding a sponsor: The H-1B visa requires the applicant to be sponsored by an American company who will also apply on their behalf. Therefore, if you want to enter the US with the help of an H-1B visa, you will need to find a job where the company is willing to sponsor you into the country.
2. Labour Conditions Approval (LCA): Once you’ve got the job, the employer will then begin the application process. The first step is submitting the LCA to the Department of Labor (DOL) online using the iCERT Portal System.
In the LCA, the employer will attest to the government that the employee will receive a wage that is either equal, or greater than the prevailing standards for the position in the geographical area where the work will be conducted. The company will also have to attest that the working conditions will not be harmful for any employee.
3. Form I-129: Once the LCA is approved, the employer will have to file the Petition for a Nonimmigrant Worker, Form I-129. For this, the employer must include:
- Education and experience evaluation documents
- Training certificates
- Professional membership documents, if any
- Applicant’s resume
- Confirmation letter
- Letter of support
Processing for this can take up to 3 or 4 months.
4. Completing the application: Once the petition is approved, the applicant must visit their home country’s US embassy or consulate to complete the process. This usually takes 2-3 days, depending on the location.
An H-1B visa doesn’t come cheap, but fortunately, most of the cost is paid for by the employer who sponsors the applicant. Typically, the processing fees includes:
· Registration fee: $10
· Standard (Basic Filing) Fee: The standard (basic) H-1B filing fee is $460 for the I-129 petition. This H-1B visa fee is also applicable to transfers, re-filings, amendments, and renewals. Essentially, this fee is due any time that an I-129 is filed.
· ACWIA (Training) Fee: For employers who have between 1-25 full-time workers, the American Competitiveness and Workforce Improvement Act fee is $750. For employers with 26 or more full-time employees, the fee is $1,500. Some organizations are exempt from this training fee including non-profits with affiliations to educational institutions, governmental research organizations, primary/secondary educational institutions, etc.
· Fraud Prevention & Detection Fee: This $500 fee is applicable to new H-1B petitioners or those changing employers. It exists to help the USCIS ferret out those who plan to use this visa fraudulently. This H-1B visa fee is not required for extensions with the same sponsoring employer.
· Public Law 114-113 Fee: This H-1B visa fee is applicable to companies that have upwards of 50 employees with over half on H-1B or L1 status. The additional fee for these companies is $4,000.
· Optional Fees: Premium processing is an option available to those who want to expedite the H-1B visa process. This service is offered by the Department of Homeland Security and guarantees a 15-day processing time frame. In order to use this feature, you must complete form I-907 along with the $1,440 fee. Again, this is one of the optional visa fees. Another optional expense is if family members apply to be H4 dependents of the applicant by filling out form DS-160.
When the number of visa applications exceeds the annual visa cap, the USCIS uses a lottery system to randomly pick the required number of petitions allotted.
The lottery is a computer-generated random selection process and was put in place in response to the high number of H-1B applications that were annually received that way surpassed the visa quotas.
Having an edge
For people who have a master’s degree, the application is first entered in a lottery pool along with those of other master’s applicants. After the cap on visas is met through that lottery pool, the remaining applications that weren’t selected enter the general pool and go through that selection process again.
So, if you have a master’s degree, you will have two chances of being selected for a visa whereas those with only a bachelor’s degree will only enter the regular lottery pool.
Visa Cap for 2020
In 2020, the cap on the H-1B regular pool was 65,000, and the cap for Master’s candidates was 20,000.
What happens if you aren’t selected?
If you do not get selected in the H-1B lottery, then the USCIS will return your petition as well as the filing fee. You can submit your application again next year; however, you will have the same chance of being selected as everyone else.
H-1B to a green card
When the H1B visa expires, the holder can choose to either return to their home country or apply for a green card to permanently reside in the US.
Unlike most other visas, the H-1B visa is a ‘dual intent visa’, which means that the applicant can also apply for the visa with the intention of wanting to reside in the US permanently. This allows the H-1B holder to apply for their green card while still being a holder of an H1.
The process of applying for a green card starts with the sponsoring employer who petitions for their employee to change from a visa to green card status.
They must fill out PERM Labor Certification which needs to be approved by the Department of Labor. After the PERM Labor Certification is approved, the employer then needs to file the Immigrant Petition for an Alien Worker, Form I-140.
After completing the I-140 form, the applicant files Form I-485 to adjust their status from an H-1B visa holder to a green card holder.