The H-1B visa is a temporary nonimmigrant visa for professional workers.
H-1B visa petitions are filed by U.S. employers to sponsor foreign nationals for temporary employment in the U.S. in professional fields.
U.S. employer is called “Petitioner”, and a foreign employee is called “Beneficiary”.
H-1B workers can be employed in:
- “Specialty occupations”, or
- Fashion models of distinguished merit and ability.
The H-1B visas have a number of the following characteristics:
- U.S. Citizenship and Immigration Services (USCIS) closely scrutinizes whether positions are actually specialty occupations. Having a bachelor’s degree alone will not meet the requirements.
- If an occupation requires a professional license, the beneficiary must posses such a license (physicians must meet also meet testing requirements);
- H-1B visas may be used for part-time positions, and multiple employers may employ the H-1B worker concurrently on separately approved H-1B petitions;
- The number of H-1 visas issued each year is limited (also known as a “cap”). The cap is 65,000 for beneficiaries with bachelor’s degrees and an additional 20,000 for advanced degree graduates from U.S. universities. Some organizations including institutions of higher education and non-profit organizations affiliated with colleges and universities are exempt from the H-1B cap.
- Employers must first submit their initial H-1B registration in an electronic lottery and only after their applications are selected, they can file an H-1B petition with USCIS;
- The U.S. Department of Labor (DOL) must approve a Labor Condition Application (LCA) before an H-1B petition is filed with USCIS to comply with wage, posting, and public access file (PAF) requirements;
- Only employers must pay the salary and costs associated with the H-1B petition. Employees cannot pay any H-1B related expenses.
- Depending on the type and size of the employer the H-1B fees can be significant;
- When an H-1B employee is terminated, the employer must pay return-transportation costs and is liable to continue paying wages to the employee until the employer notifies USCIS of the termination;
- USCIS closely scrutinizes whether an H-1B applicant has a true employment relationship with the entity petitioning for the H-1B;
- Employers with a high percentage of H-1B workers may be deemed H-1B dependent and are subject to additional attestation and recruiting requirements;
- USCIS and DOL have strict rules regarding moving employees to a new location and often have additional filing requirements;
- H-1B visas are “portable,” and an H-1B worker can often begin work for a new employer upon the filing of an H-1B petition by a new employer;
- Stays on H-1B visa are limited to six years. Workers with pending permanent residency applications (Form I-140) may be granted additional time on H-1B;
- H-1B visas are considered “dual intent” visas, and H-1B beneficiaries may enter on their H-1B visa while an adjustment of status is pending. Moreover, they are not subject to the 90-Day Rule.
- Spouses of H-1B visa holders are eligible for employment authorization if the H-1B has an approved Form I-140 immigrant visa application.
What is “Specialty Occupations”?
A specialty occupation requires the theoretical and practical application of highly specialized knowledge along with at least a bachelor’s degree or its equivalent.
Some of the H-1B occupational categories include:
- Architecture;
- Engineering;
- Mathematics;
- Physical Sciences;
- Social Sciences;
- Medicine and Health;
- Education;
- Business Specialties;
- Accounting;
- Law;
- Theology;
- Arts.
“Specialty occupation” has the following requirements:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- The degree requirement is common to the industry in parallel positions among similar organizations, or, in the alternative, an employer may show that its 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 is so specialized and complex that the knowledge required to perform the duties is usually associated with obtaining a baccalaureate or higher degree.
USCIS can review the industry-wide standards in a particular occupation.
USCIS officers will refer to the DOL’s Occupational Outlook Handbook to determine the duties, educational and experience requirements for a particular position.
USCIS will also request additional documents if an H-1B petition is relying on a foreign degree.
You will need to submit proof that the foreign degree is equivalent to a U.S. bachelors or higher degree.
This requirement is met by obtaining an advisory evaluation from a private credentials evaluation company who will provide a report that has the following information:
- Consideration of the formal education only;
- Stating whether the H-1B applicant completed the U.S. equivalent of high school before entering college;
- Provide a detailed explanation of the material evaluated; and
- Briefly state the qualifications and experience of the evaluator providing the report.
Work experience can sometimes be used as a substitute for education requirements in an H-1B petition:
- For a bachelor’s degree, 3 years of progressive work experience in a field will be considered as one year of full-time study in a bachelor’s program.
- 12 years of progressive work experience in a specialty occupation would be equivalent to a bachelor’s degree.
For an equivalent of a master’s degree, a combination of a bachelor’s degree and 5 years of experience in the field will be sufficient.
If an occupation requires a professional license, the H-1B petition must include evidence that the beneficiary has a full state license to practice in the occupation (for example, medical license or license to practice law).
H-1B status can be approved for 1 year where the beneficiary is in possession of a temporary professional license.
H-1B Requirements for Physicians
Physicians engaged in patient care will need to provide additional documents with their H-1B petitions:
- An approved LCA (Labor Condition Application);
- A professional license or other authorization required by the state of intended employment to practice medicine;
- A full and unrestricted license to practice medicine in a foreign state or evidence that the physician has graduated from a medical school in the U.S. or in a foreign country;
- Proof that the physician has passed the FLEX (Federation Licensing Examination) or an equivalent examination as determined by the U.S. Department of Health and Human Services unless the physician received their medical education in the U.S.
- Proof that the physician has passed the English test unless the doctor has received their medical education in the U.S. or Canada;
The H-1B Cap
Only 65,000 applicants can obtain H-1B visas each fiscal year as well as additional 20,000 beneficiaries holding U.S. master’s degrees.
Since USCIS usually receives far more applications each year than the allotted maximum, USCIS conducts a lottery and returns the applications that were not selected.
In 2020, USCIS established a new lottery process where employers file a short online application, and those selected will be invited to file further applications.
H-1B Start Dates
When considering an H-1B application, it is important that even if approved, the earliest date an employee can start employment is October 1.
The exception to this rule are F-1 students who are employed in Optional Practical Training (OPT) at the time their H-1B petitions are filed for change of status.
If the H-1B petition is successful, the F-1 status and work authorization will be extended to October 1 in what is known as the “cap gap”.
It is important to note that if an employee is selected in the H-1B lottery where the petition was filed by Company A, the employee can later be petitioned by Company B without participating in a lottery again simply by transferring the H-1B.
H-1B Cap Exemptions
Some U.S. employers are exempt from the H-1B caps.
To be exempt from H-1B caps, the organization must fit in the following categories:
- Institutions of higher education;
- Nonprofit entities related to or affiliated with an institution of higher education if one of the following is true:
- The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;
- The nonprofit entity is operated by an institution of higher education;
- The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
- The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.
Cap-exempt institutions may file H-1B petitions anytime of the year with any start dates.
This is a significant advantage compared to cap-subject employers.
Working on a cap-exempt H-1B does not allow the employee transfer to a cap-subject employer later.
However, a foreign employee may have more than one concurrent H-1B.
- For example, if a foreign employee has another H-1B visa with a cap-subject employer, he or she can be transferred to another H-1B cap-subject company without participating in a lottery.
Cap exemption can be based on:
- Direct employment by a cap-exempt employer, or
- If the beneficiary is “employed at” a qualified cap-exempt entity.
The petitioner doesn’t need to be a cap-exempt entity in such a circumstance.
