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What is an H-1B Visa?

An H-1B program allows a U.S. employer that sponsors foreign workers’ H-1B visas to temporarily employ them in specialty occupations. H-1B beneficiaries who receive the visa sponsorship thus may work for the U.S. employer in specialty occupations for the period authorized under the H-B status. In this blog, we will discuss the H-1B visa’s major requirements and specific considerations.

Note on Proposed Rule of the H-1B Program: In October 2023, DHS published a Notice of Proposed Rulemaking that would modernize the H-1B program. If implemented, this proposed rule will modify certain requirements, definitions, and process of the current H-1B program that we will discuss in this blog. For details of the proposed rule, visit our blog “Proposed Rule on the H-1B Program”.

Table of Contents

1. Eligibility for an H-1B Visa
2. H-1B Cap
3. How to File an H-1B Petition
4. How to Request Premium Processing
5. Required Fee for an H-1B Petition
6. Period of Authorized Stay
7. Change of Employers on an H-1B
8. Changes in Employment Conditions
9. Termination of Employment
10. U.S. Employer’s Liability for Transportation Costs
11. Family of H-1B Visa Holders

1. Eligibility for an H-1B Visa

To be eligible to apply for an H-1B visa, the individual sponsored for the visa (beneficiary) and the U.S. employer that sponsors the visa for the beneficiary (petitioner) must satisfy certain requirements including the following:

I. Specialty Occupation Position

To be eligible for an H-1B visa, the position the beneficiary will work for must be in a specialty occupation that requires:

  • Theoretical and practical application of a body of highly specialized knowledge; and
  • Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

In addition, the position the beneficiary intends to work for must satisfy one of the following conditions:

  • Bachelor’s or higher degree or its equivalent is normally required as a minimum for entry in to the particular position;
  • The degree requirement is common to the industry in parallel positions among similar organizations or, alternatively, the job is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the particular position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

II. Beneficiary Qualifications

An H-1B beneficiary must satisfy one of the following criteria to qualify to perform services in a specialty occupation:

  • Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
  • Hold a foreign degree determined to be equivalent to a U.S. bachelor or higher degree required by the specialty occupation from an accredited college or university;
  • Have an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment;1 or
  • Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a U.S. bachelor or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

III. Labor Condition Application

An H-1B petitioner must submit a Labor Condition Application (LCA) certified by the Department of Labor in filing the H-1B petition. The petitioner must attest that it will comply with the certain labor requirements, including offering the H-1B beneficiary the prevailing wage for the beneficiary’s position and giving the notice of the filing of the LCA to the union bargaining representative or posting the notice at the place of employment.

IV. Required Wage

During the period of authorized employment, an H-1B employer must offer to the H-1B beneficiary at least the following wage, whichever is greater:

  • The actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or
  • The prevailing wage level for the occupational classification in the area of employment.

V. U.S. Employer Definition

For the H-1B classification, the current law defines a U.S. Employer as a person, firm, corporation, contractor, or other association or organization in the United States which:

  • Engages a person to work within the United States;
  • Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
  • Has an Internal Revenue Service Tax identification number.

Accordingly, an H-1B petitioner who sponsor’s a beneficiary’s H-1B visa must meet the above criteria as a U.S. employer.

2. H-1B Cap

I. Cap-Subject H-1B Petition

There is a numerical limitation of H-1B statuses/visas that are newly issued to beneficiaries in each fiscal year. The congress mandated a cap of 65,000 H-1B visas (H-1B regular cap) and a cap of 20,000 H-1B visas for beneficiaries who have earned a U.S. master’s degree or higher (H-1B advanced degree exemption). Petitions subject to the H-1B advanced degree exemption are exempt from the regular cap until the number of beneficiaries who are exempt on this basis exceeds 20,000. Due to the numerical limitations (cap), cap-subject H-1B petitions include the petitions with the H-1B regular cap as well as those with the H-1B advanced degree exemption.

II. Cap-Exempt H-1B Petition

An H-1B beneficiary is not subject to the H-1B cap if the beneficiary qualifies the certain criteria, which include the following:

  • Employment at Qualifying Institution, Organization, or Entity: The beneficiary is employed by an institution of higher education or its affiliated or related nonprofit entities,2 a nonprofit research organization, or a government research organization (“qualifying institution, organization, or entity”), such petitions are not subject to the numerical cap of the H1-B visas.
  • Indirect Employment at Qualifying Institution, Organization, or Entity: The beneficiary who is not directly employed by a qualifying institution, organization or entity will spend the majority of his or her work time performing job duties at the qualifying institution, organization or entity and those job duties directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity.
  • Concurrent Employment at Cap-Subject Employer and Cap-Exempt Employer: The beneficiary is concurrently employed by a cap-subject employer and a cap-exempt employer.
  • H-1B Advanced Degree Exemption: The beneficiary possesses a U.S.-earned master’s or higher degree (*once 20,000 H-1B visas are reached, they will be counted against the overall H-1B cap).
  • H-1Bs in CNMI and Guam: The beneficiary is in CNMI and Guam (*until Dec. 31, 2029, under the Northern Mariana Islands U.S. Workforce Act of 2018).
  • Certain Cases where the Beneficiary was Already Counted against the H-1B Cap: The beneficiary has already been counted against the H-1B cap within the past 6 years, unless the H-1B would be eligible for a new 6 years of H-1B status at the time the petition is filed.3 
  • Extension of H-1B Status: The beneficiary extends his/her H-1B status.
  • J-1 Physician: The beneficiary is a J-1 physician who has obtained a waiver pursuant to the State 30 program or federal program.

3. How to File an H-1B Petition

I. Cap-Subject H-1B Petition

A. Electronic Registration Process

A prospective petitioner who files a cap-subject H-1B petition must first electronically register the prospective beneficiary. The petitioner or its representative may submit the registration using a myUSCIS online account. The annual initial registration period will last a minimum of 14 calendar days and will start at least 14 calendar days before the earliest date on which H–1B cap-subject petitions may be filed for a particular fiscal year. USCIS will announce the registration period for each fiscal year in advance (usually, the initial registration period is in March).

USCIS usually conducts a random selection (lottery) from the registrations via a computer-generated selection as there are more than sufficient registrations to meet the H-1B cap each year. An additional lottery may occur if USCIS determines that not enough numbers of legitimate registrations are selected from the initial registration.

A petitioner may only submit one registration per beneficiary in any fiscal year. If the petitioner does not follow this rule, USCIS will consider all registrations filed by that petitioner relating to the beneficiary invalid.

B. H-1B Petition Filing Process

If a beneficiary is selected by a lottery, a prospective petitioner may file an H-1B petition for the beneficiary. The petitioner may file the petition no more than 6 months before the employment start date requested for the beneficiary. The employment start date must be Oct. 1 or later of the applicable fiscal year, and 6 months or less from the receipt date of the H-1B petition. Usually, the petitioner may file the H-1B petition for at least 90 days. For the beneficiary selected by an initial lottery that is usually held in March, the petitioner may file the H-1B petition starting April 1.

The petition must be accompanied with required documentations. To ensure fair and orderly distribution of H-1B visas, current laws prohibit a petitioner from filing multiple or duplicative H-1B petitions for the same beneficiary. USCIS will deny or revoke such petitions and will not refund the filing fees.

II. Cap-Exempt H-1B Petition

A prospective petitioner may file an H-1B petition without undergoing the lottery mentioned above. The petitioner may file the H-1B petition no more than 6 months before the employment start date requested for the beneficiary. The petition must be accompanied with required documentations.

As mentioned, current laws prohibit a petitioner from filing multiple or duplicative H-1B petitions for the same beneficiary. USCIS will deny or revoke such petitions and will not refund the filing fees.

4. How to Request Premium Processing

An H-1B petitioner may request a premium processing for the petition by filing a proper Form and filing fee of $2,500 ($2,805 for filings postmarked on or after Feb 26, 2024) with USCIS. A beneficiary may not file the request but may pay the premium processing service fee instead of the petitioner. If the petitioner files the request properly, USCIS will take one of the following adjudicative actions within 15 calendar days:

  • Issue an approval notice, a denial notice, a notice of intent to deny, or a request for evidence; or
  • Open an investigation for fraud or misrepresentation

If the H-1B petition requires the submission of additional evidence or a response, the 15-day premium processing time will reset. Once USCIS receives additional evidence or response, a new premium processing time will begin.

5. Required Fee for an H-1B Petition

For the cost required for filing an H-1B petition, please visit our blog “What Is The Company’s Cost To Sponsor H-1B Visa?

6. Period of Authorized Stay

In principle, an H-1B specialty occupation beneficiary may stay and work in the United States for up to 3 years on an H-1B visa. The beneficiary may extend the period for up to another 3 years, thus the maximum authorized period of stay on an H-1B visa is 6 years.

However, an H-1B beneficiary may be subject to a shorter period of stay or may be eligible for an H-1B extension beyond the 6-year period in the following situations:4

Limitation on the H-1B Maximum 6-year Period

The period of stay of an H-1B beneficiary is subject to a limitation as follows:

  • An H-1B beneficiary who has spent 6 years in the United States in H and/or L status (except H-4 and L-2) may not seek extension, change status, or be readmitted to the United States in H or L status (except H-4 and L-2) unless the beneficiary has been outside the United States for at least 1 year.5

Extension of the H-1B Maximum 6-year Period

An H-1B beneficiary may be eligible for an H-1B extension beyond the 6-year period in the following situations:

  • Labor Certification or Employment-Based Immigrant Visa Petition is Pending for more than 365 Days: An H-1B beneficiary may be eligible for an H-1B extension beyond the 6-year period when at least 365 days have passed since a labor certification was filed with the Department of Labor or an immigrant visa petition was filed with USCIS on the beneficiary’s behalf.6
  • Form I-140 Petition was Approved but Immigrant Visas are Unavailable: An H-1B beneficiary may be eligible for an H-1B extension beyond the 6-year period when the H-1B beneficiary currently holds or previously held H-1B status; is the beneficiary of an approved immigrant visa petition under EB-1, EB-2, or EB-3; and an immigrant visa is unavailable for the beneficiary due to the per country or worldwide limitations on immigrant visas.
  • Recapture of Time Spent Outside the U.S.: An H-1B beneficiary who spent more than 24 hours physically outside the United States during the validity period of the H-1B may recapture the time spent for the H-1B status or in a subsequent H-1B petition.

Grace Period

10-Day Grace Period

In addition to the validity period of the H-1B status, an H-1B beneficiary may be admitted to the United States an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends.

Maximum 60-Day Grace Period

If an H-1B beneficiary loses the H-1B status due to solely the cessation of the H-1B employment, such a beneficiary may be considered to maintain the status for up to 60 days or until the end of the original authorized period of stay on H-1B status, whichever is shorter.

Within the 10-day and maximum 60-day grace period, the H-1B beneficiary may continue a job search and apply for an extension of stay or change of status. However, such a beneficiary may not work during the grace period unless otherwise authorized. USCIS will determine whether the maximum 60-day grace period applies to each beneficiary’s case.

7. Change of Employers

For an H-1B beneficiary to change employers, a new employer must properly file a new, non-frivolous petition before the beneficiary’s H-1B period of authorized stay expires.7 In addition, such a beneficiary must not have worked in the United States without work authorization.

The beneficiary may begin working for the new employer once the new employer file an H-1B petition, or as of the requested start date, whichever is later. If the new petition is denied, the beneficiary may continue working for his/her previous H-1B employer if the previous H-1B’s period of authorized stay is still valid.

8. Changes in Employment Conditions

An H-1B employer must file an amended petition when there are materials changes in employment. The employer must also file a new LCA when there are certain material changes to the employment. For example, a change in the beneficiary’s place of employment within a geographical area covered in the original LCA requires filings of a new LCA and an amended H-1B petition if such a change affects the H-1B eligibility (i.e., prevailing wage, posting requirements).

9. Termination of Employment

If an H-1B employer no longer employs the beneficiary, the employer shall send a letter explaining the change(s) to the USCIS director who approved the petition. The employer must pay a wage to the beneficiary until there is a bona fide termination of the employment relationship. This bona fide termination requires the employer’s notice of employment termination to the beneficiary and USCIS and payment for transportation costs as mentioned below. Still, if the beneficiary obtained approval for a new H-1B position, this is considered an express employment termination that would end the employer’s wage liability.

10. U.S. Employer’s Liability for Transportation Costs

An H-1B employer will be liable for the reasonable costs of return transportation of the H-1B beneficiary abroad if the employer dismisses the beneficiary from employment before the end of the period of authorized stay. If the beneficiary voluntarily terminates his/her employment before the H-1B status expires, the beneficiary has not been dismissed. “Abroad” means the beneficiary’s last place of foreign residence.

11. Family of H-1B Visa Holders

H-1B beneficiary’s spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. An H-4 spouse may be eligible for work authorization by filing Form I-765, Application for Employment Authorization if his/her H-1B spouse:8

  • Has had the H-1B status extended due to the situation where at least 365 days have passed since a labor certification was filed with the Department of Labor or an immigrant visa petition was filed with USCIS on the beneficiary’s behalf, or
  • Already has an approved Form I-140 petition.

Related Blog: “Proposed Rule on the H-1B Program.”

Disclaimer

  1. If an occupation in the state of intended employment requires such a license, an H-1B beneficiary seeking classification in that occupation generally must have that license before the petition is approved. ↩︎
  2. Whether a nonprofit entity is considered to be related to or affiliated with an institution of higher education are determined based on shared ownership or control; operation by the institution; attachment to the institution as a member, branch, cooperative, or subsidiary; or formal written affiliation agreement with the institution. ↩︎
  3. A person could be eligible for a new 6 years if he or she was out of the country for one year or if the work was seasonal, intermittent, or less than 6 months per year. A person who has already been counted against the cap within the past 6 years and applies for an H-1B with a new employer (including portability) is not subject to the cap. ↩︎
  4. This limitation and extension does not apply to H–1B (and H–2B, H-3) beneficiaries (a) who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year or (b) who reside abroad and regularly commute to the United States to engage in part-time employment. ↩︎
  5. A beneficiary who has been outside the United States for at least 1 year may be eligible for a new 6-year period of admission in H-1B status or a new 5-year or 7-year period in L-1 status. USCIS clarified that the time spent as an H-4 and L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B and L-1 status. ↩︎
  6. AC 21 sections 106(a) and (b). Such a beneficiary must file an adjustment of status application or apply for an immigrant visa within 1 year of an immigrant visa is authorized for issuance. USCIS may excuse the beneficiary’s failure to file the adjustment of status application or an immigrant visa within 1 year in its discretion if the beneficiary establishes that the failure to apply was due to circumstances beyond his/her control. ↩︎
  7. If a beneficiary is moving from cap-exempt to cap-subject employment, the new employer’s H‑1B petition will be subject to the H-1B cap and the new employer must first submit an electronic registration. If the registration is selected, the new employer may file a petition with a start date of Oct. 1 (or later). ↩︎
  8. Spouses in H classification may also be eligible for work authorization if they demonstrate that during the marriage the spouses or their child have been battered or have been the subject of extreme cruelty perpetrated by their spouses. ↩︎

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