H-1B visas are among the most versatile ways for US employers to hire skilled professional employees, but they are notorious for their complicated application process. This post outlines how the H-1B system works, and key considerations for both employers and workers.
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Key Limitations
- Every H-1B worker must be sponsored by their employer.
- H-1B workers must be engaged in “specialty occupations” that require a bachelor’s degree in a specialty field, or an equivalent professional license or work experience.
- For most employers (other than certain educational and research institutions), H-1B visa applications follow a very rigid timeline:
- The visa can only be requested by the employer (petitioned) at the beginning of April.
- The visa has a high risk of being denied during the month of May, even if it meets all legal requirements.
- Employment must start in October.
- Some employers need considerable “lead time” before submitting an H-1B application in order to complete a labor condition application, described further below.
- Most H-1B visa holders are limited to a stay of six years in the US, after which they must leave the country or find another visa status that allows them to stay.
- Spouses of H-1B visa holders are generally not allowed to work in the US unless they qualify for a different type of visa in their own right.
Qualifying for an H-1B
An H-1B visa is only available for jobs in “specialty occupations,” or those which require a bachelor’s degree in a specific specialty or its equivalent. The “specialty” may be an area of science or technology, an area of liberal arts, or a professional field such as law or accounting.
Some jobs do not qualify as “specialty occupations” despite being white-collar or prestigious in nature. Sales or business management, for example, are not “specialty occupations,” although such positions can qualify as “specialty occupations” if they require bachelor’s-equivalent training in a specialty such as accounting, finance, or engineering.
In considering whether a job qualifies, USCIS reviews the job duties and requirements and considers whether they make sense in the context of the entire business petitioning for the visa. For example, an “engineering specialist” job at an employer with very limited needs for engineering expertise may not be acceptable, as USCIS will assume that the job will actually involve more general job duties that do not qualify as a “specialty occupation.”
The worker may qualify for the job based upon a specialized degree in the field, a professional license in the field, or equivalent work experience. If a job requires a state license, such as law or accounting practice, USCIS will require evidence that the worker possesses the relevant license.
Process Part 1: The LCA
Before an employer can sponsor a worker for an H-1B visa, they must file a “labor condition application” for the offered position and have it certified by the US Department of Labor.
As part of this process, the employer is required to pay no less than the prevailing wage for the position. This is most commonly done by reference to a published survey, but it is also possible to obtain a prevailing wage determination from the government (which takes 3-4 months) or to use other sources. The wages and benefits for the position must also be no less than those offered to other employees in similar positions with the same employer.
Employers with a proportionally high number of H-1B employees, or with past histories of H-1B visa violations, are required to make additional attestations that the job will not displace a US worker, and that they have offered the job to US workers and have been unable to find one.
Private sector employers almost always file labor condition applications in March due to timing limitations on H-1B applications, which are discussed further below.
Process Part 2: The Visa Application
For most private sector employers, H-1B visas are generally subject to an annual cap of 65,000 visas each fiscal year (October through September), plus 20,000 visas reserved for holders of graduate degrees from US universities, and petitions are accepted starting in April of each year for visas to take effect in October.
In recent years, all of the available visas have been exhausted within the first few business days of April, and applicants during that period have been subject to a “lottery” for visa issuance in early May. In 2019, for example, around 200,000 people applied for the 85,000 capped visas available.
However, certain employers are exempt from the H-1B cap, meaning that applications can be accepted year-round and there is a much higher chance of success:
- Higher education institutions
- Non-profit entities related or affiliated with higher education institutions
- Non-profit research organizations
- Governmental research organizations
In addition, applicants from Chile and Singapore who would otherwise be subject to the cap can request an H-1B1 visa, which is subject to country-specific caps that give such applicants higher odds of success.
USCIS announced changes in the process for cap-subject visas on December 6, 2019, to take effect in the 2020 filing season. This article reflects the process that will apply in 2020.
An employer begins the process for a cap-subject visa by submitting an electronic registration request, naming the specific worker they wish to sponsor. In 2020, electronic registration will be available from March 1 through March 20. By the end of March, USCIS randomly selects a certain number of individuals from the electronic registration requests received, and those individuals can then proceed to the next stage.
If the visa is cap-exempt, or is cap-subject and has passed the electronic registration process, the employer proceeds by filing a Form I-129 (Petition for a Nonimmigrant Worker) with USCIS together with other documentation. Most employers opt to pay extra for “premium processing” so that the application is reviewed and either approved or rejected within 15 days.
Although many H-1B petitions are promptly approved, a majority of petitions result in a Request for Evidence (RFE) which can delay the issuance of the visa by several months. An RFE can be issued because USCIS is uncertain about whether the job constitutes a “specialty occupation,” the worker’s credentials as a specialist in that field, or due to mismatches between application information and publicly available information.
Process Part 3: Consular Processing vs. Adjustment of Status
Once the petition is approved, an H-1B applicant who is already in the United States can elect to either leave the US and apply for an H-1B visa at a US embassy or consulate overseas (“consular processing,” also colloquially known as “stamping“), or stay in the US and conduct an adjustment of status through USCIS.
Consular processing is more costly for workers who are already in the US, since they have to pay travel expenses, but is usually faster and less risky. A visa can be issued in days, while adjustment of status takes several months to process. The worker can usually obtain temporary employment authorization while waiting for their adjustment of status, but if the adjustment is ultimately denied for some reason, the worker may be retroactively deemed “unlawfully present” in the United States, and subject to deportation as well as a ban on re-entry for up to ten years. The consequences of unlawful presence are described further in this article.
If a worker uses consular processing, the embassy or consulate overseas may issue a visa as early as 90 days before the employment start date, and will conduct an interview of the worker immediately before issuing the visa. The consular officer will not typically re-examine the merits of the H-1B petition, but may still refuse to issue a visa if there are obvious grounds to do so. Once the worker has their visa, they may enter the US no earlier than 10 days before their start date.
H-1B visa holders will receive a Form I-94 upon entry to the United States. This is a critical document as it contains their “Admit Until Date,” their deadline to either extend their status or leave the United States.
Transitioning from Student Status
One common route for obtaining an H-1B visa is to begin working in “Other Practical Training” (OPT) on an F-1 student visa after graduating from college, apply for an H-1B visa as early as possible, and change status if and when an H-1B visa becomes available. OPT is typically limited to 12 months, but can be extended by up to 24 months for holders of STEM degrees (for a total of up to 36 months).
If an OPT worker’s H-1B application is approved, there is a special “cap gap” rule that allows OPT to be extended up to the start date of the H-1B visa even if it would otherwise expire during that time. However, if the OPT worker’s H-1B application is rejected, the worker will need to leave the US within 60 days of the end of the OPT period, or find another status by which they can remain in the US (such as postgraduate study or E-1/E-2 status with an employer from their home country).
Changing Jobs
H-1B visas are generally “portable.” A visa holder can change jobs so long as their new employer has an approved labor condition application for the new position, and files a Form I-129 petition with USCIS. The worker can start their new job while the Form I-129 petition is pending approval, but must stop working if the petition is denied.
One important exception to this rule: if a cap-exempt H-1B holder wishes to take a position with a cap-subject employer, they are treated like an applicant for a new cap-subject H-1B visa. Their petition must be submitted at the beginning of April and approved subject to the cap, and then the holder cannot start their new job until October 1.
Easier Alternatives
There are other types of visas available to skilled professional workers that may be significantly easier to obtain. Popular alternatives include:
- E-1/E-2 visas for executive, supervisory, or essential employees of foreign-owned businesses. Eligibility for these visas depends on where the employer’s owners are based. These visas are not available to US-owned employers, but are available to employers owned by citizens of a number of countries.
- L-1 visas for executives, managers, or specialized knowledge employees transferring from foreign offices. These are available to both US and foreign-owned employers, but require the worker to have been employed by an affiliate outside the US for at least one year.
- O-1 visas for individuals of extraordinary ability. Personnel with peer recognition in their field may qualify for this visa status.
- TN visas for Canadian and Mexican professionals. These are permitted for nationals of the two countries who engage in certain professional occupations.
- J-1 visas for trainees and interns. Relatively short stints in the US for training purposes may be covered by this visa category.