H-1B is an employment-based non-immigrant visa. In a nutshell, it allows US employers to hire foreign workers for so-called ‘specialty occupations’. Given the quicker and lighter application process compared to petitioning for a Green Card, many employers opt for an H-1B visa instead when recruiting abroad.
Legal requirements for the H-1B visa
Not every foreign worker is going to be eligible for an H-1B visa. To make the cut, your future job in the United States needs to qualify as a speciality occupation. This usually means the work you’ll be doing requires highly specialised, theoretical or practical expertise in a particular field. Typical examples include architecture, biotechnology, mathematics, medicine, education, etc. To that end, a bachelor’s or higher degree is often considered the norm.
It is also important to mention that an employee can not apply for the H-1B status by themselves – the application needs to be submitted by the prospective employer.
The H-1B visa is granted for an initial period of three years, although it can be extended for up to 6 years total, with several exceptions to a maximum period of stay. The holder of H-1B visa is also allowed to bring his or her spouse as well as (unmarried) children under 21.
These immediate family members enter the US as ‘dependents’ under the H4 visa, meaning they are ineligible to work or qualify for a Social Security number (although certain precedents have been made recently). They can, however, go to school, drive and open their own personal bank account.
Under current law, there’s an annual limit of 65,000 foreign nationals that can obtain H-1B status. However, there are plenty exceptions to the rule. For one, an additional 20,000 visas are made available each fiscal year to those that carry an advanced degree (masters or higher) from a US university. Furthermore, all individuals working at university or government/non-profit research facilities are exempt from the H-1B cap.
Still, the number of available spots is limited. In 2016, the US received almost 233,000 H-1B applications, well over the designated ceiling. If you want to maximise your chances applying early is paramount!
Planning in advance is key to obtaining an H-1B status. The petition can usually be filed up to 6 months before the beginning of the fiscal year, which starts on October 1st. In other words, you and your employer should make sure to mark April 1st in your application calendar.
How to petition for H-1B
The application process itself is three-fold:
- The employer files the Labor Condition Application (LCA for short) with the U.S. Department of Labor.
- Once the LCA’s been approved, the employer then needs to file an I-129 form, which is a petition for a non-immigrant worker.
- Once the I-129 has been approved, the employee can apply for an H-1B visa. If he’s already in the United States, he can begin working at a prearranged start date.
Unlike most other visas the H-1B classified as dual intent. This means that the holder of an H-1B visa can possess a legal immigration intent while in H-1B status, or in other words, apply for and obtain a Green Card while working as a non-immigrant employee.