H-1B allows US employers to hire foreign workers in specialty occupations.
Want to work in the United States as a skilled worker? You can live and work in the US for up to a maximum of six years on an H-1B visa. An H-1B visa status can also pave the way for you to apply for permanent residence (Green Card) later on.
Here, we will be discussing the 10 facts of an H-1B visa for working overseas in the US.
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10 Essential Facts of H-1B Work Visa for the US |
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Fact 1 |
What is an H-1B visa? |
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Fact 2 |
How long is the H-1B visa valid for? |
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Fact 3 |
What are the H-1B visa requirements? |
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Fact 4 |
What is the H-1B visa process? |
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Fact 5 |
Who is eligible for the H-1B visa category? |
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Fact 6 |
What is a “specialty occupation”? |
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Fact 7 |
What jobs come under specialty occupations for the H-1B? |
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Fact 8 |
What is the H-1B lottery? |
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Fact 9 |
What happens after the H-1B lottery? |
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Fact 10 |
Can I get US Green Card through H-1B? |
A temporary or non-immigrant visa, the H-1B allows foreign nationals temporary entry into the country to take up employment in any of the specialty occupations. A lottery selection is made, subject to a cap or annual limit on the H-1B visas to be granted in a financial year.
It is through the H-1B visa pathway that US companies get to hire foreign nationals that possess the required knowledge - technical or theoretical - in a specialty occupation.
Getting US tech companies the global talent that they need, the H-1B is widely used to hire overseas-born individuals in various fields, especially STEM (Science, Technology, Engineering, and Mathematics).
In the H-1B visa application process, there will be a petitioner, and a beneficiary. The petitioner will be the US employer who will be filing the H-1B petition on behalf of the foreign employee that they want to bring to the US to work for them. The beneficiary will be that employee.
To be eligible for a H-1B visa for the US, the beneficiary will have to meet at least one of the following requirements -
To begin with, a petition will have to be filed by the US employer on behalf of the foreign worker. From 2020, USCIS has an electronic registration process for the H-1B cap-subject visas. To be considered by USCIS, a cap-subject H-1B petition must be based on a valid, selected registration, for the same beneficiary, and for the relevant financial year.
The employer will have to get a Labor Condition Application (LCA) certificate from the Department of Labor (DOL) of the US government. A completed Form I-129, Petition for a Nonimmigrant Worker, will have to be filed by the employer with the appropriate USCIS service center.
The DOL-certified LCA will have to be submitted along with Form I-129 (only applicable for specialty occupations and fashion models). After the approval of the Form I-129 petition, the prospective H-1B worker will be required to apply for an H-1B visa at a US Embassy or Consulate.
Following this, the foreign worker will have to apply to the US Customs and Border Protection (CBP) for being admitted into the US with H-1B status.
While better known for offering a route to work overseas in the US for skilled foreign workers, the H-1B is not just for specialty workers.
The US nonimmigrant classification of H-1B is applicable to individuals that intend to perform services -
The H-1B3 category is for fashion models. To be eligible for the H-1B3 visa for the US, you must be a fashion model of distinguished merit and ability. In short, a fashion model of prominence. The H-1B2, on the other hand, is for DOD Researchers and Development Project Workers. To be eligible, a Bachelor’s or higher degree or the equivalent of the same - in the occupational field that you will be performing services in - will be required.
To be considered as a specialty occupation, the occupation must require theoretical as well as practical application of a body of highly-specialized knowledge. Generally, a minimum educational qualification of Bachelor’s degree or above will be needed for entry into that occupation in the US.
Moreover, the degree specifically required to take up that specialty occupation in the US must be the same in the industry, that is, in parallel positions among similar organizations.
The job to be done by the H-1B worker must be complex and unique so that it can be done only by a university degree holder. The foreign degree held by the individual should be equivalent to a US bachelor’s or higher degree needed for the specialty occupation from an accredited college or university.
Additionally, the individual must hold the required registration or certification authorizing them to fully practice the specialty occupation and be working in that specialty as intended by their US employer. The recognition of the expertise of the individual can be assessed by their having held progressively responsible positions directed related to that very specialty occupation.
H-1B specialty occupations might include - the arts, business specialties, accounting, physical sciences, education, engineering, mathematics, social sciences, theology, law, medicine and health, and architecture. H-1B visas are available for different types of specialty occupations that need expertise - theoretical or technical - in specialized fields.
Simply put, any job available in the American labor market might come under the H-1B requirement, provided it requires a minimum of a Bachelor’s degree. To be eligible for the H-1B visa, the nature of the specific duties must be so specialized and complex that they could only be done by someone with a bachelor’s or higher degree.
For the H-1B, specialty occupations might be, among others -
The above-mentioned are only some of the US jobs that come under specialty occupations. Any position, as long as it meets the qualifications requiring specialization, can come under the classification.
A random selection, using a lottery system, is done from the registrants. Those selected are then asked to submit their complete H-1 visa petition.
Every year, a total of 85,000 H-1B visas are to be issued by US Citizenship and Immigration Services (USCIS). While 65,000 H-1B visas in a year are as per the “regular cap”, another 20,000 visa spaces are set aside for individuals with advanced degrees.
Some exemptions to the H-1B cap include those entering the US for working in higher education of an affiliated research/non-profit organization.
Based on a random selection done through a lottery process, USCIS selects the beneficiaries that can proceed to the next stage of filing and processing of an H-1B visa.
Within the next 90 days, the US employers for the selected registrations will have to file the H-1B petition with USCIS. To be processed along with the supporting documentation and the applicable filing fees.
An H-1B cap-subject petition, including those eligible for the advanced degree exemption, might only be filed by a petitioner whose registration - for the beneficiary named in the H-1B petition - was selected in the H-1B online registration process.
The H-1B cap-subject petition will have to be properly filed at the correct service center and within the given filing period. As online filing is not available, a petitioner filing an H-1B petition will have to do the same by paper.
Form I-797 will be issued by USCIS to the individual, denoting the approval of their application. An H-1B US visa will be issued by USCIS if the petition is approved.
If you are in the US on an H-1B visa and wish to transition onto a US Green Card - officially referred to as the Permanent Resident Card - you might be able to perpetually extend your H-1B status in the US. For this, you will have to file for an EB-1, EB-2, or EB-3 (employment-based) visa before the end of your fifth year in the US on H-1B status.
You may be eligible to apply for a US Green Card (permanent residency) while holding an H-1B visa. However, you must apply for the Green Card by the end of the second year of your H-1B extension.
Do note that only the time actually spent by the worker in the US with H-1B status will be counted towards the six years. Any time spent by the individual outside the US will not be counted, even if exit and subsequent entry into the United States has been made while on H-1B status.
The immediate family - spouse and unmarried children under the age of 21 years - might accompany H-1B visa holders to the US. Such family members will have to apply for H4 visa status.
Certain H-4 dependents of H-1B visa holders might file Form I-765, Application for Employment Authorization, provided the H-1B visa holder is the main beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker. Form I-765 allows them to request employment authorization and secure an Employment Authorization Document (EAD).
Generally, a Bachelor’s degree or above will be needed to be eligible for the H-1B visa. However, it might still be possible to qualify for H-1B without a degree.
Even if you don't have a degree, you may still be able to qualify for an H-1B visa if you have the education, specialized training, and/or experience and recognition of expertise in the specific specialty education.
Relevant work experience in your specialty field can make you eligible for H-1B based on your experience. Generally, you will be required to be able to demonstrate three years’ work experience per year of degree study.
Basic step-wise process for getting an H-1B visa in the US from India -
STEP 1: Give documents to your US employer for registering an H-1B petition on your behalf. This is to be done in January.
STEP 2: Your US employer does the online registration for you in March.
STEP 3: H-1B lottery is held and the selected petitioners are notified by March 31.
STEP 4: Approval of the H-1B petition filed by paper.
STEP 5: Your US Employer to file Form I-129, Petition for a Nonimmigrant Worker.
STEP 6: You will have to complete DS-160, Online Nonimmigrant Visa Application. This will take around 90 minutes. You will be asked to choose the consulate location which will also be your US visa interview location.
STEP 7: Give your biometrics.
STEP 8: Schedule and appear for your US visa interview.
STEP 9: H-1B visa stamping.
An individual in the US on H-1B status can remain in the country only as long as they are employed with their H-1B petitioner or ‘sponsor’. If the employee loses their employment in the US, for any reason, both the H-1B worker as well as their H-4 dependents will lose their status.
In such a situation, an H-1B visa holder might file for a change in their status to that of a US visitor, allowing them to remain in the country while they make arrangements for leaving. An individual remains in status for up to 120 days while their application for a change of status is pending.
A new non-immigrant application will have to be filed if they stay in the US and secure a new position with another employer.
A foreign national can work for their US employer from outside the country. The time spent outside the US working on a H-1B status will not count towards the six year stay limit on the H-1B as the individual is not physically present in the US.
When opting to work outside the US while on H-1B, the individual must be aware of the possible repercussions upon re-entry into the US on H-1B status. Always maintain proper documentation explaining the time spent working abroad while on H-1B.
Working outside the US for your H-1B sponsor is legal. Working outside the US for a short duration - such as a few weeks to a few months - need not create any issues when attempting to re-enter the US as a H-1B visa holder.
USCIS opens the H-1B initial registration in March of the financial year. During a specified period mentioned beforehand by USCIS, the prospective petitioners and their representatives will be able to complete the H-1B initial registration through the online H-1B registration system.
An associated USD10 H-1B registration fee will have to be paid for each of the registrations submitted to USCIS on behalf of each beneficiary.
Each of the petitioning companies will have to create an account at my.uscis.gov. The person registering the account must be the same individual that will sign Form I-129, Petition for a Nonimmigrant Worker, and Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. Form G-28 is used to provide information to USCIS about a person’s eligibility to act on behalf of another.
There are three separate kinds of USCIS online accounts that can be created -
Selecting the right USCIS online account is a very critical part of the H-1B application process.
Each of the prospective H-1B petitioners or sponsors must submit only one registration per beneficiary. However, a single sponsor might submit multiple registrations, each for a different beneficiary. Also, a single beneficiary might have more than one registration for them submitted by multiple beneficiaries.
The winners of the lottery are notified by March 31. The petitions might be filed beginning April 1.
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