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H1B Visa

H1B visas allow U.S. employers to hire foreign workers temporarily in specialty occupations. H1B visas fit into the category of employment “H” visas because it is 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.

Practice Areas Corporate
Who drives the filing process Employer
Purpose (Work in US, Invest in the US, Reunite with Family in US, Study in US, Visit US) Work
Parties involved: For Work Visas only) Employee, Employer, Investor, Employer; Employee
Type Temporary
Description Visas for specialty occupation; professions that require at least a Bachelor’s Degree in a specific field. Process is driven by Employer
Nationality** All
Checklist for filing Optional checklist for H1B Filings
Overview Eligibility & How to File
Forms , eligibility and filing guidelines (look at the USCIS website for details) More details
Government fee (USCIS website for more details)
  • Registration Fee: $10
  • Premium Processing (optional): $2,500
  • Public Law 114-113 Fee (if applicable): $4000
  • Basic Filing Fee: $460
  • USCIS Anti-Fraud Fee (if applicable): $500
  • ACWIA Education and Training Fee: $750 (less than 25 employees); $1500 (more than 25 employees)

Who needs a H1B Visa to work in the U.S.?

Employees or potential employees who wish to work in the U.S. seasonally or temporarily in a specified professional or academic field that requires special expertise, a college (bachelor’s) degree or higher, or equivalent work experience will need a H1B visa.
A H1B visa may be appropriate for you if you have a degree from a foreign, non-U.S. college that is equivalent to a U.S. bachelor’s degree or higher, or if you hold a state licence, certification, or registration that authorizes you to practice a specialty occupation in the U.S. state where you desire to work.
Not all types of employment qualify under the H1B visa, even if you have a college degree or higher. A college degree alone is not sufficient if you are not working in a specialty occupation for which that college degree applies. For example, an individual with a college degree in engineering does not qualify for a H1B visa if he or she will not be employed as an engineer, and instead seeks employment as an architect. However, such an individual may qualify for a H1B visa to be employed as an architect if he or she has several years of professional experience working as an architect or also has a college degree or higher in architecture.

What positions qualify as specialty occupations under a H1B Visa?

A H1B visa is necessary for employment 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 under the H1B 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

What is the process for obtaining a H1B Visa?

The process for obtaining a H1B visa is an employer-driven process, which means your employer or potential employer must initiate the visa process by filing a petition on your behalf. Because there is a cap to the amount of H1B visas the government issues each year, there is a selection process conducted by the USCIS. Obtaining a H1B visa ultimately depends on successful selection through this process, often referred to as a “lottery.”
Creating an account through the USCIS’electronic registration processis the first, required step necessary to be eligible for selection for a H1B visa under the lottery. Employers or their attorneys may create an account with USCIS, which allows them to submit basic information about the employer and any potential employees.
The registration period begins on March 2nd at 12pm EST, when registrants can create an account. On March 9th, H1B registration period opens at 12pm EST and ends on March 25th at 12pm EST. The USCIS will notify selected registrants on March 31st. Selected registrants may begin filing on April 1st.

What if you are selected in the H1B visa lottery?

Employers can file the H1B petition only IF their applicant is selected in the lottery. While selected applicants can begin filing the necessary forms on April 1st, the earliest an employer or potential employer 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 your current H1B status.
The usual processing time for a H1B visa to become active is 60-90 days, though this can be expedited to at most 15 days if a $2,500 premium processing fee is paid. The premium processing fee is refunded if the processing time lasts longer than 15 days.
At the start of the filing process, the employer or potential employer must first file aLabor Condition Applicationwith the U.S. Department of Labor on your behalf. This application requires your employer or potential employer to show that it will treat you the same as other qualified workers in its same geographic area with regard to wage, and that other employees will be unaffected by your working conditions.
After the Labor Condition Application is certified by the Department of Labor, your employer or potential employer must then complete a Petition for a Nonimmigrant Worker viaform I-129. Your 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 your employer or potential employer.
If you are already in the United States, after your form I-129 is approved, you can only begin working once your H1B visa status becomes active.
If you are not in the United States at the time you form I-129 is approved, you must take necessary steps to lawfully enter the United States so you may begin working. To do so, you must first completeForm DS-160online, pay the application fee, and schedule an interview at a U.S. consulate or embassy nearest to you.
At your interview, you must have certain documents with you, including:

  • your 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 withU.S. Department of State guidelines.

What is the cap on H1B visas?

The U.S. government sets a cap on the amount of H1B visas it will issue in its “fiscal year,” which begins every October. Applicants for the H1B visa are selected through a lottery-style process due to limitations on the amount of H1B visas the government issues.
The USCIS limits the number of new H1B visa workers with required skills and qualifications to 65,000 per year, though an additional 20,000 H1B visas are allotted per year for those who hold advanced degrees at a master’s level or higher.

Who is exempt from the H1B visa cap?

The USCIS exempts certain employers from the cap, as well as certain employees.
Employers exempted from the cap include:

  • higher education institutions
  • non-profit organizations associated with higher education institutions
  • non-profit research organizations or government research organizations
  • any for-profit company that seeks to hire a specialty employee to provide services to an institution or organization mentioned above.

Employees exempted from the cap include:

  • individuals who have previously been granted exemption to the cap.

An employer may also file a cap-exempt H1B petition for an employee if the employee previously held H1B status in the United States and the employee has not used his or her six years of status. The petition would cover the remaining time the employee is allowed in the U.S. An individual must file a petition subject to the cap if he or she has been out of the U.S. for 1 year.
Employees who gain different employment by transferring from one employer to another may be exempt from the cap, depending on the cap-exempt status of the employee, the employer, and the new employer.

How much does it cost to get a H1B Visa?

The cost of a H1B 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 H1B 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 H1B applicants or those changing to a new employer are charged $500 so that USCIS can better detect fraudulent use of the H1B 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 H1B or L1 status.
Premium Processing Fee:This is an optional $2,500 fee charged to those who wish to expedite the H1B visa process. It may be paid by either the employee or the employer. Payment of this fee and completion of form I-907 guarantees a 15-day processing time.

Can H1B visa holders change employers?

An individual working in the U.S. under a H1B visa may transfer to a different employer. It is not necessary that the visa holder receive permission from their employer to transfer; however, the new employer must submit a H1B visa transfer petition with the USCIS. The visa holder cannot file the transfer themselves.
H1B visa holders may begin working with a new employer once that employer has submitted the H1B petition to the USCIS and received anI-797C Notice of Action receiptin response.
It is nonetheless recommended that the visa holder wait to begin working for the new employer until he or she has received approval from the USCIS regarding the transfer. If the transfer petition is denied, the visa holder must stop working for the new employer.

How long is a H1B visa valid?

A H1B visa is valid for three years and, under typical circumstances, can be extended after the first three years for an additional three years, totalling up to six years.
A petition to extend may be submitted at most 6 months prior to the end of the first three period.

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.