What are the H1B visa requirements?

The H1B visa is specifically open only to graduate-level workers in specialty occupations requiring theoretical or technical expertise in specialized fields.

To qualify as a specialty occupation, the position must meet one of the following criteria:

• A bachelor’s or higher degree, or its equivalent, is normally the minimum requirement for entry into the particular position;
• The degree requirement for the position is common to the industry, or the particular position 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 position; or
• The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

To qualify to perform services in a specialty occupation, the worker must meet one of the following criteria:

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

What is the H1B visa cap?

The H1B visa category has an annual numerical cap which limits the total number of foreign nationals provided H1B status to 65,000 per fiscal year, with an additional allocation of H1B status to 20,000 foreign nationals per fiscal year with a US master’s degree or higher.

What is the H1-B electronic registration process?

In 2020, a new electronic system was introduced for cap-subject H1-B petitions.

This requires the H1B employer to register with USCIS and pay a $10 registration fee for each H1B applicant (‘beneficiary’) it intends to sponsor.

The registration window is open for a period of at least 14 days each year, usually during March.

Registrations can be made at any time during this specified period, and once the window is closed, registrations will be selected at random.

Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

Accepted H1B petitions which are subsequently approved will allow the foreign national to begin work for the petitioning employer no sooner than October 1 of the same year, in line with requested petition validity dates.

What are the H1B visa cap exemptions?

Certain individuals are exempt from the H1B annual cap and an H1B petition may be filed on their behalf at any time, regardless of whether the annual cap has been met. Such individuals include:

• Foreign nationals who have been counted toward the cap within the last six years (for example, a foreign national already working for a US company in H1B status with time remaining in H1B status).
• Foreign nationals who will be employed in the US at an institution of higher education or an affiliated non-profit entity, a non-profit research organization, or a government research organization.

Can the H1B visa be renewed?

Workers can spend up to six years in the US with H1B status before they must return abroad for at least one year before being granted H1B status again.

To remain in the US longer than six years, H1B visa holders can become eligible for a Green Card and file for an adjustment of status to permanent residency.

Can dependents apply under the H1B visa?

H1B spouses and dependant children under the age of 21 may apply for the H-4 visa, which will allow them to reside with the primary visa holder in the US. With an H-4 visa, family members can work, study, obtain a driver’s license, open a bank account while in the US. 

What is the H1B application process?

Applying for an H1B visa involves the following:

• Employer (sponsor) registers electronically for each H-1B visa applicant.
• Employer (sponsor) files a Labor Condition Application (LCA) with the US Department of Labor (DOL).
• If the registration is selected, the H-1B cap-subject petition is filed.
• H-1B applicant attends a visa interview at a US consular post abroad.

What is the LCA?

Before filing an H1B visa petition, the employer must first file an LCA for certification by the DOL which attests:

• It will pay the worker at least the same wage paid to similarly qualified workers in the geographic area where they will be working.
• The working conditions of similarly employed workers will not be adversely affected by the worker’s employment and they will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to US workers.
• There is no strike, lockout, or work stoppage in the occupation at the prospective place of employment, and if one occurs after the LCA is submitted, the Employment & Training Administration (ETA) will be notified and the LCA will not be used until the strike, lockout, or work stoppage has ceased. And,
• Notice of the LCA has been or will be provided to workers employed in the same occupation, and the worker will be provided a copy of the LCA.

LCAs are typically submitted to the DOL electronically and are reviewed within seven working days. Once the LCA has been certified, the employer may proceed with filing the H1B petition.

What supporting documents are needed for the H1B visa application?

The H1B petition must include the following documentation to demonstrate eligibility for the H1B visa:

• Documentation which establishes the worker is qualified to perform services in a specialty occupation including, as applicable:
• Copies of the qualifying degree certificate(s) and transcripts;
• Educational and/or experiential evaluations;
• Letters from present and/or former employers certifying as to the worker’s recognition and expertise in the specialty occupation; and
• Applicable licenses required to fully perform the duties of the application. AND
• Documentation which establishes that the services to be performed in the US are in a specialty occupation, including copies of any written contracts between the worker and employer, or a summary of the terms of the oral agreement under which they will be employed.
• A copy of the certified LCA, discussed above, must also be included with the petition.

Once the H1B petition is complete, it will be submitted to USCIS for adjudication. Processing times may vary depending on USCIS caseload and service status.

What is an H-1B RFE (Request for further evidence)?

If during the adjudication process a USCIS adjudicating officer determines that additional information and/or documentation is needed to render a decision on the case, a request for additional information will be issued. Such requests vary in length depending on the extent of information and documentation requested.

Upon receipt of the requested information and documentation, USCIS will resume processing of the petition.

Is H1B premium processing available?

For an additional fee, premium processing of the H1B petition can be requested for a fast-tracked decision.

Under this service, USCIS will adjudicate the case within 15 calendar days of receipt, subject to any cap-imposed adjustments. If a request for additional evidence is issued on a petition filed using the premium processing service, USCIS will have an additional 15 calendar days from receipt of the response to adjudicate the case.

Note that use of the premium service does not afford any special cap benefits.

What happens at the H1B visa interview?

If the H1B petition is approved, the applicant must arrange a visa interview at a US consular post abroad. Interview procedures vary widely among consular posts so it is important the instructions provided are followed.

During the interview, a consular officer will ask the applicant questions to confirm the information provided in the H1B petition about the worker and their US employment.

The applicant will be notified of the decision at the interview. Provided the application is approved the consular officer will retain the worker’s passport for visa stamping.

The worker’s passport with embossed H1B visa stamp will be returned to them within approximately one week of the interview. Once received, the worker is permitted to travel to the US to work in H1B status in line with the employment conditions provided in the H1B petition.