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H1B Visa Requirements

What is the H1B Visa?

The H1B visa allows U.S. employers to hire foreign workers temporarily in specialty occupations. H1B visas fit into the category of employment “H” visas because they are for non-immigrant workers. H1B visas are specifically for workers in certain specialty occupations who wish to be employed in the U.S. temporarily. A worker using a H1B visa cannot stay in the U.S. permanently.

What are the Requirements to Receive an H1B Visa? 

To receive an H1B visa, applicants must be able to prove that they work in a specified professional or academic field that requires special expertise, a college (bachelor’s) degree or higher, or equivalent work experience in their field of expertise.. For example, an individual with a college degree in engineering must be employed as an engineer in order to qualify for the H1B visa.

What is a Specialty Occupation? 

Generally, a specialty occupation is one that minimally requires a bachelor’s degree or higher or its equivalent, or requires specialized knowledge obtainable usually through earning a bachelor’s degree or higher. Occupations such as engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts qualify as specialty occupations under the H-1B visa. 

In order to qualify as a specialty occupation, the position must meet at least one of the following: 

  • The position normally and minimally require a bachelor’s degree or higher for entry into the position; 
  • The industry the position is in must commonly require a degree in positions among similar organizations, or alternatively, the job must be performed only by an individual with a degree due to it uniqueness or complexity; 
  • The employer normally requires a degree or its equivalent for the position; 
  • The specified duties of the position are so specialized and complex that the knowledge required to perform the duties is typically associated with the attainment of a bachelor’s degree or higher

Educational Requirement

The H1B visa is available for workers who have a degree from a foreign, non-U.S. college that is equivalent to a U.S. bachelor’s degree or higher, and/or a state license, certification, or registration that authorizes them to practice a specialty occupation in the U.S. state where they desire to work.

For example, a cardiologist is a type of doctor that would require a bachelor’s degree as well as a doctorate degree in order to practice in the United States, but would also require appropriate licensing or certification in the U.S. state in which they intend to practice cardiology. 

Job Offer

Generally, an H1B visa applicant will need a job offer from a U.S. employer that they intend to work for in the United States if issued an H1B visa. The H1B application and lottery process is primarily employer-driven. 

What are the H1B Application Requirements? 

The H1B application process involves two broad components: (1) Registration for the H1B lottery; and (2) If selected in the lottery, petition for the H1B visa. 

Because the process for obtaining a H1B visa is employer-driven, the applicant’s employer or potential employer must initiate the visa process by filing a petition on their employee’s behalf.

Step One: Register for the H1B Lottery

The United States government limits the number of H1B visas issued each year to 65,000. H1B applicants who have earned an advanced degree equivalent to a U.S. master’s degree or higher are exempted from this cap. However, those with advanced degrees are subject to their own annual cap of 20,000. Thus, obtaining a H1B visa ultimately depends on successful selection through the H1B “lottery.” 

Employers or their attorneys can register for the H1B lottery on behalf of the employee-applicant by creating an account with the USCIS or can log in to an existing account, if one has already been created in the past.

The initial registration period is generally around 14 days long in the month of March each year. For example, the initial registration period for 2022 begins on March 1st; however, accounts can begin to be created on February 21st, before registration officially opens. The initial registration period ends March 18th, 2022, and selected registrants will be notified March 31st, 2022 and then may file their petitions on April 1st, 2022.

Step Two: Begin Petitioning Process if Selected in Lottery 

Employers or their attorney can file the H1B petition only IF their applicant is selected in the lottery. The earliest an employer or their attorney can initiate the visa process is 6 months prior to the employment date stated on the petition or 6 months prior to the expiration date of the applicant’s current H1B status.

File Labor Condition Application (LCA)

At the start of the petitioning process, the employer or potential employer must first file a Labor Condition Application with the U.S. Department of Labor on the applicant’s behalf. This application requires the employer or potential employer to show that it will treat the H1B visa holder the same as other qualified workers in its same geographic area with regard to wage, and that other employees will be unaffected by the H1B visa holder’s working conditions.

File Form I-129, Petition for Nonimmigrant Worker

After the Labor Condition Application is certified by the Department of Labor, the employer or potential employer must then complete a Form I-129, Petition for a Nonimmigrant Worker

The employer or potential employer must submit Form I-129 and the certified Labor Condition Application to the United States Citizenship and Immigration Services (USCIS) as well as any fees and additional documentation that confirms your education level, certification, licensure, professional qualifications, employment or potential employment, and support from the employer or potential employer. 

File Form DS-160 if Outside the United States

H1B visa applicants who are not in the United States at the time Form I-129 is approved must take necessary steps to lawfully enter the United States and begin working.

Form DS-160, Online Nonimmigrant Visa Application is required to be filed online over the internet, where applicants must also pay an associated fee. Filing DS-160 involves uploading a photo of the applicant that conforms to the U.S. Department of State photograph requirements. Once Form DS-160 is submitted, the applicant must download and print the confirmation page showing Form DS-160 was completed and the filing fee paid. The confirmation page will need to be brought to the applicant’s visa interview at a U.S. Consulate or Embassy.

Attend U.S. Embassy or Consulate Interview if Outside the United States

H1B visa applicants who are outside the United States must next schedule an interview at a U.S. consulate or embassy nearest to you. 

At the interview, the applicant must have certain documents with them, including:

  • valid passport
  • a printed copy of the confirmation page from your completion of Form DS-160
  • a copy of your approved form I-129 and I-797 approval (issued to you previously when your form I-129 application was approved) 
  • receipts proving you paid your application fees and a passport-sized photo of you that conforms with U.S. Department of State guidelines;
  • Degree and certification documents; 
  • Resume and curriculum vitae (CV)

Enter the United States 

Approval for the H1B visa does not guarantee entry into the United States. Applicants who receive the H1B visa stamp on their passport must attempt entry at a U.S. port of entry and have with them all the documentation that they brought with them to the U.S. Embassy or Consulate interview. The U.S. Customs and Border Protection (CBP) makes the final decision whether an applicant has the appropriate documentation to be granted entry to the U.S. on a H1B visa. 

Required Fees 

The cost of a H-1B is in the thousands of dollars. Most if not all of this cost is generally paid by the employer, not the employee or potential employee. 

Registration fee:  It costs only $10 to register, and this is all that must be paid if the potential employee is not selected in the lottery. 

Basic filing fee (form I-129): Any time the form I-129 is filed, it must be accompanied with a $460 filing fee. Thus, this fee applies to H-1B transfer costs, refiling, amendments, and renewals. 

American Competitiveness and Workforce Improvement Act Training Fee: Employers with 1-25 full time employees must pay $750 under this act, while employers with 26 or more full time employees must pay $1,500. Nonprofits affiliated with educational institutions, government research organizations, and primary or secondary educational institutions are exempt from this fee. 

Fraud Prevention and Detection Fee: New H-1B applicants or those changing to a new employer are charged $500 so that USCIS can better detect fraudulent use of the H-1B visa. This fee is not charged if an employee is extending his or her work with the same sponsoring employer. 

Public Law 114-113 Fee: This is a $4,000 fee charged to companies that employ more than 50 workers where over half of the employees are on H-1B or L1 status. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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