H-1B Visa for Professional Workers

What is an H-1B Visa: Complete Guide

The H-1B work visa allows an employer to hire qualified foreign workers for up to six years. In order to obtain an H-1B, the employer must file a Form I-129 petition for the nonimmigrant worker, demonstrating that the position requires a professional in a “specialty occupation” and that the foreign national (beneficiary) meets the required qualifications.

During each fiscal year, USCIS (US Citizenship & Immigration Services) allows up to 65,000 foreign nationals to receive initial H-1B status, running from October 1 to September 30. These numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6,800 numbers for workers from these two countries each fiscal year. Unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year.

There is an additional quota of 20,000 H-1B visas reserved for foreign nationals holding a Master’s degree or higher awarded by a college or university in the United States.

Procedure & Requirements

• The foreign national must have a U.S. equivalent bachelor’s degree or equivalent work experience;
• The petitioner must obtain a labor condition application (LCA)
• Upon approval of the LCA, the employer should file a Form I-129 petition with the US Citizenship & Immigration Services (USCIS) for the nonimmigrant worker;
• The petitioner can expedite the H-1B process so that the initial determination is made within 10-15 calendar days by requesting premium processing for an additional fee to the US Citizenship & Immigration Services.

Related Issues

• A foreign national who is currently in H-1B status is ‘generally' exempt from the above listed numerical limitation;
• The spouse and unmarried child/ren below the age of 21 are allowed to accompany/join the foreign national in H-4 status, however they are not allowed to work in the United States unless they qualify for a work visa;
• A foreign national may hold H-1B status for a maximum of six years, generally issued in increments of up to three years;
• An extension beyond the six-years is permitted under certain circumstances.

Employer Obligations

Sponsorship and Compliance

Employers who sponsor H-1B visa holders have specific obligations to ensure compliance with the regulations set by the U.S. Citizenship and Immigration Services (USCIS). These obligations include:

• Filing a Labor Condition Application (LCA): Employers must file an LCA with the U.S. Department of Labor to attest to the prevailing wage and working conditions for the foreign worker. This ensures that the foreign worker is compensated fairly and that their employment does not adversely affect the working conditions of U.S. workers.
• Paying the Prevailing Wage: Employers are required to pay the foreign worker the actual wage paid to similarly employed U.S. workers or the prevailing wage for the occupation in the area of intended employment, whichever is higher. This helps to maintain fair wage standards and prevent wage suppression.
• Providing the LCA to the Foreign Worker: Employers must provide the foreign worker with a copy of the LCA and ensure that they understand their rights and obligations under the H-1B program. This transparency helps protect the foreign worker’s rights and ensures they are aware of the terms of their employment.
• Maintaining Accurate Records: Employers must keep detailed records of the foreign worker’s employment, including their wage, hours worked, and any changes to their employment status. Accurate record-keeping is essential for compliance with USCIS regulations and for protecting both the employer and the employee in case of audits or disputes.
• Notifying USCIS of Employment Changes: Employers must notify the USCIS of any changes to the foreign worker’s employment, including their termination or transfer to a different employer. This ensures that the USCIS has up-to-date information on the foreign worker’s status and helps prevent any potential legal issues.

Employers who fail to comply with these obligations may be subject to penalties, fines, and other consequences. It is crucial for employers to understand and adhere to these requirements to ensure a smooth and compliant H-1B sponsorship process.

Benefits of Hiring Qualified Foreign Workers

Hiring qualified foreign workers through the H-1B visa program can bring numerous benefits to U.S. employers. One of the primary advantages is the ability to fill labor gaps in specialty occupations, such as technology, engineering, and healthcare. By hiring foreign workers with highly specialized knowledge and skills, employers can enhance their competitiveness, improve productivity, and drive innovation.

Moreover, the H-1B visa program allows employers to attract top talent from around the world, which can lead to increased diversity and creativity in the workplace. Foreign workers can bring new perspectives, ideas, and approaches to problem-solving, which can be invaluable to U.S. businesses.

Additionally, hiring qualified foreign workers can help employers address labor shortages in specific industries. For instance, the tech industry has faced significant labor shortages in recent years, and the H-1B visa program has provided a vital source of skilled workers to fill these gaps.

H-1B Visa Amendments and RFEs

Amendments and Requests for Evidence

In some cases, the USCIS may request additional evidence or information to support an H-1B visa petition. This is known as a Request for Evidence (RFE). Employers and foreign workers may also need to file amendments to an H-1B petition to update information or correct errors.

• RFEs: The USCIS may issue an RFE to request additional evidence or information to support an H-1B petition. This may include documentation of the foreign worker’s qualifications or other pertinent information. Responding to an RFE promptly and thoroughly is crucial to avoid delays or denials in the H-1B petition process.
• Amendments: Employers and foreign workers may need to file amendments to an H-1B petition to update information or correct errors. This may include changes to the foreign worker’s employment status, job title, or salary. Filing amendments ensures that the information on record with the USCIS is accurate and up-to-date, which is essential for maintaining compliance with immigration regulations.

It is important to respond promptly and thoroughly to RFEs and to file amendments as needed to ensure that the H-1B petition is processed correctly. Failure to respond to an RFE or to file an amendment may result in the denial of the H-1B petition.

Employers and foreign workers should work with an experienced immigration attorney to ensure that they comply with all requirements and regulations related to H-1B visas. 

This includes understanding the obligations of sponsorship and compliance, responding to RFEs, and filing amendments as needed. An experienced attorney can provide valuable guidance and support throughout the H-1B petition process, helping to navigate the complexities of immigration law and increase the chances of a successful outcome.

H-1B Visas for IT Consultants and Roving Employees

The H-1B visa program is particularly useful for IT consultants and roving employees who work on a project-by-project basis. These individuals often require specialized skills and knowledge to complete complex projects, and the H-1B visa program provides a flexible and efficient way for employers to hire them.

To qualify for an H-1B visa, IT consultants and roving employees must meet the standard requirements for specialty occupations, including a bachelor’s degree or higher in a relevant field.

In addition, employers must provide documentation to support the H-1B petition, including a detailed job description, a copy of the foreign worker’s degree and transcripts, and evidence of the employer’s ability to pay the prevailing wage. This ensures that the foreign worker is compensated fairly and that their employment does not adversely affect the working conditions of U.S. workers.

Alternatives to H-1B Visa

While the H-1B visa program is a popular option for hiring foreign workers, there are alternative visa options available. One such option is the L-1 visa, which allows employers to transfer employees from a foreign office to a U.S. office. The L-1 visa is particularly useful for multinational companies with offices in the U.S. and abroad.

Another alternative is the O-1 visa, which is designed for individuals with extraordinary ability in the arts, sciences, education, business, or athletics. The O-1 visa is a non-immigrant visa that allows individuals to work in the U.S. for up to three years, with the option to extend their stay.

Employers may also consider the TN visa, which is available to Canadian and Mexican citizens who work in specific professions, such as engineering, computer systems analysis, and scientific research. These alternatives provide additional pathways for employers to hire foreign talent and address their specific workforce needs.

H-1B Visa Professional Workers: Questions & Answers

What is an H-1B work visa?

The visa is a nonimmigrant status that enables a nonimmigrant worker to work in the U.S. in a specialized field for a maximum duration of six years.

This visa is employer-sponsored, meaning the hiring company must show that the job role for which the H-1B is sought necessitates a professional with specialized skills. Additionally, the foreign applicant (also known as the beneficiary) must fulfill the qualifications required for this specialty occupation.

What is a “specialty occupation”?

A "specialty occupation" is an occupation that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. Generally, a professional-level occupation in law, computer science, accounting, engineering, medicine, dentistry, etc., requiring at least a bachelor's degree in the field related to the occupation will qualify for H-1B status.

I have a bachelor's degree, am I eligible for H-1B status?

A general bachelor's degree may not qualify for H-1B. It is important for the job to require a bachelor's degree or higher in a specialized field and for you to have at least a bachelor's degree in the field related to the job.

Can I qualify for an H-1B work visa if I don't have a bachelor's degree?

While having a bachelor's degree is a requirement for the H-1B work visa, persons without a 4-year bachelor's degree may be able to get by with job experience instead. 

Three years of specialized work experience is typically equivalent to one year of formal education. Therefore, you may still be eligible for H-1B status despite not having a formal bachelor's degree.

What if my bachelor's degree is in a field of education unrelated to the Specialty Occupation?

For over 22 years, we've been tackling intricate issues such as these and are fully prepared to assess your qualifications to navigate you through the process. 

Our team will rigorously analyze your individual case, drawing links between your targeted coursework and professional experience. Utilizing this methodology, we might be able to obtain an experiential evaluation that aligns your educational background and work history—or just your education—with a degree that is closely related to the specialty occupation in question.

Is there an annual limit on the number of ‘new' H-1Bs that are issued each year?

Each fiscal year, the U.S. Citizenship and Immigration Services (USCIS) allocates 65,000 initial H-1B visas, effective from October 1 to September 30; this allocation is commonly referred to as the 'H-1B cap.' This figure is adjusted due to agreements under the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which reserve 6,800 visas annually for nationals from these two countries. 

Any FTA visas not used in one fiscal year can be rolled over into the first six weeks of the subsequent fiscal year. Additionally, there is a separate quota of 20,000 H-1B visas designated for individuals who have earned a master's degree or higher from an accredited U.S. college or university.

Is it possible for me to purchase a house while on an H-1B status?

Purchasing a house is possible on an H-1B status.

Is it possible to be an independent contractor while on an H-1B status?

On an H-1B status, you're not permitted to work as an independent contractor, often referred to as a 1099 worker. A bona fide employer-employee relationship, typically evidenced by a W-2 form, must exist between you and your H-1B sponsoring employer.

Is it possible to be a freelancer while on an H-1B status?

You are not permitted to freelance on an H-1B status. A bona-fide employer-employee relationship, typically evidenced by a W-2 form, must exist between you and your H-1B sponsoring employer.

Is it possible to obtain an H-1B status with a part-time job offer?

Yes, you are eligible to work part-time while on an H-1B status.

Am I subject to the H-1B cap if I leave my current H-1B employer and join a different H-1B employer?

Typically, if you've already been counted against an H-1B cap in the past, you won't be subject to a new cap when switching employers. However, if the current H-1B was granted for a cap-exempt employer, such as a university, it's likely you weren't counted against the cap. 

In such a scenario, if you decide to leave your current cap-exempt employer for a cap-subject employer, you would be subject to the H-1B cap.

I am currently in the U.S. in H-1B status, am I allowed to change my employer?

Yes, if your new job requires at least a bachelor's degree or higher in a specialized field and you have at least a bachelor's degree in the field related to the job, then you are allowed to change your H-1B employer.

I am in the U.S. on L-1/L-2 status and would like to apply for H-1B status. Am I subject to the H-1B cap?

Yes, anyone who is applying for the H-1B for the first time is subject to the numerical limitation of the H-1B cap.

How long can a foreign national work in H-1B status?

A foreign national may hold H-1B status for a maximum of six years, generally issued in increments of up to three years.

If I am currently in the U.S. in H-1B status and am about to complete my three years of initial H-1B, how soon can my employer file an extension to extend my H-1B status?

H-1B extensions may be filed, with the USCIS, up to 6 months before the validity of the current H-1B expires.

Once my H-1B transfer has been filed, how soon can I start working with my new employer?

You are allowed to start working with your new H-1B employer, under the American Competitiveness in the Twenty-First Century Act (AC21), as soon as the USCIS receives your H-1B transfer petition.

I earned two specialized degrees, a bachelor's degree in mechanical engineering and a master's degree in computer science. My initial H-1B was approved to work as a mechanical engineer but I am planning to switch my H-1B to work as a software engineer. Would that be possible?

Certainly, you can change your H-1B employer and work in a different field if the new job mandates at least a bachelor's degree or higher in a specialized area, and you possess a bachelor's degree or higher in a field relevant to the new job. 

There is no obligation to remain in the same field as your original H-1B approval if the requirements for the new job differ.

I am currently outside the U.S. Am I eligible to obtain an H-1B?

Yes, it is possible for you to obtain an H-1B while you reside outside the U.S. An employer can apply for the H-1B visa on your behalf and once approved, you would obtain the H-1B visa stamp at a U.S. Embassy/Consulate.

If I am currently in the U.S. in H-1B status and want to travel outside of the U.S., what will I need to return to the U.S.?

If you currently do not have an H-1B work visa in your passport, then you will need to first obtain an H-1B work visa from the U.S. Embassy/Consulate. 

If you currently do have a valid H-1B work visa stamp in your passport, then you would be able to use the existing stamp along with a copy of your current H-1B approval notice (I-797) to enter the U.S. 

It is also advisable to carry with you a copy of your most recent pay stubs and/or an employment verification letter issued by your current employer.

I have changed my H-1B employer to Company B, and I have a valid H-1B visa sticker in my passport that lists my previous H-1B employer (Company A). Can I use this H-1B visa sticker with Company A on it for re-entry into the U.S. or will I need to get a new visa based on my approval with Company B?

When you change your H-1B employer from Company A to Company B, your previous H-1B visa stamp associated with Company A doesn't automatically become invalid for re-entry into the United States. 

At the time of re-entry into the U.S., you will need to show the CBP the following: the H-1B approval notice from Company B, your current H-1B visa with Company A information on it, recent pay stubs, and/or an employment verification letter.

What is the 10-day rule for an H-1B work visa?

The 10-day rule allows the Customs and Border Patrol (CBP) to admit you into the U.S. for up to 10 days before the validity period of your H-1B begins and allow you to remain for up to 10 days after the validity period of your H-1B ends. However, you are not employment authorized during these 10-day (before and after) periods.

What is the 30-day rule for an H-1Bwork visa?

The 30-day rule allows your H-1B employers to make short-term appointments to locations not specified in the LCA, without submitting an amendment petition or a new LCA, if the H-1B worker does not exceed 30 work days at the non-permanent work location. 

Offsite work appointments must be for the specified job description on the LCA and may not be an assignment to a worksite area of strike or lockout. 

For the workdays that are offsite, H-1B employers must continue to pay required wages, provide the actual cost of out-of-town lodging, and supplement the H-1B worker's incidental expenses.

What is the 60-day rule for H-1B work visas?

If an H-1B employee’s job is terminated or they resign they will enter a grace period. This period is either 60 days or the remaining time left on their H-1B status as indicated in their I-94, whichever is shorter.

During this grace period, the H-1B employee must take one of the following actions.

• Find a new H-1B employer to submit a H-1B transfer petition,
• Apply for change of status (COS) with the USCIS, or
• Leave the United States.

What role does an immigration lawyer play in the H-1b process

An immigration lawyer can assist the prospective H-1B beneficiary and employer in preparing the strongest case possible for H-1B petition approval. In the majority of instances, an experienced immigration attorney may be able to determine beforehand whether the position and/or credentials qualify for an H-1B.

When I am granted H-1B status, I plan to bring my spouse and minor children with me to the U.S. What status will they qualify for?

Your spouse and/or unmarried children under 21 can apply for H-4 status to join you in the U.S. While your spouse may be eligible to obtain work permit (H-4 EAD) once certain conditions are met, your children will not be eligible to work.

Can my H-4 dependents attend school?

H-4 dependent spouses and children may attend school in the United States. It is essential to note, however, that while they hold H-4 status, they will not be eligible for employment benefits typically associated with F-1 student status, such as post-completion Optional Practical Training. In addition, H-4 minors enrolled in U.S. universities who reach the age of 21 must switch to an F-1 visa to continue their studies.

Can I attend school while on H-1B status?

Yes, you can attend school while on an H-1B visa, as long as the primary purpose of your stay in the U.S. on an H-1B visa is to remain employed with the sponsoring company.

Is it possible to work for more than one employer while on H-1B status?

Yes, it is possible to work for multiple employers while on H-1B status provided each additional employer has applied for a concurrent H-1B petition on your behalf.

Is the H-1B work visa an immigrant or nonimmigrant visa?

H-1B status permits a “dual intent” (immigrant and nonimmigrant intent). Doctrine of dual intent permits a H-1B holder to continue to remain in nonimmigrant status even if the H-1B holder has initiated steps towards lawful permanent residency.

What is a Labor Condition Application (LCA) requirement to obtain an H-1B visa and how do I get it?

During the H-1B application process, your employer is required to file LCA with the Department of Labor. As part of our service offering, we will collaborate with you and your employer to pinpoint the optimal mix of educational background and work experience for your role, identify the appropriate occupational code, determine the prevailing wage, and submit the LCA electronically. Upon LCA approval, we'll compile the supporting documentation and file the H-1B petition with the USCIS.

Is there a minimum salary that is required to be paid to the H-1B worker?

The employer who intends to hire an H-1B worker is required to certify with the U.S. Department of Labor (DOL) that they will compensate the H-1B employee either the prevailing wage or the actual wage, whichever amount is greater. The prevailing wage is defined as the average wage paid to individuals in similar roles within the same geographic region where the job is located. On the other hand, the actual wage refers to the salary the employer typically pays to employees in similar positions at the work location.

I am currently in the U.S. as an international student. Do I have to first use my Optional Practical Training (OPT) before I can obtain H-1B status?

It's not mandatory to utilize your Optional Practical Training (OPT) before transitioning to H-1B status. However, opting for OPT could be beneficial, especially because cap-subject H-1Bs don't become effective until October 1st. OPT allows you to work and maintain legal status in the U.S. between your graduation date and the commencement of your H-1B status.

How long does it take for the USCIS to approve an H-1B petition? 

The time it takes for USCIS to approve an H-1B petition can vary significantly depending on several factors. One crucial factor is the specific USCIS service center where the H-1B petition is filed, as different centers may have different processing times. Additionally, the current overall processing times at USCIS can also impact how long it will take for your petition to be approved.

Generally speaking, the approval process for an H-1B petition can take anywhere from 4 to 8 months. However, employers do have the option to expedite the adjudication by requesting premium processing, which generally results in a decision within 15 calendar days, although this comes with an additional USCIS fee of $2,805.

What is the government fee for H-1B?

The overall government fees for an H-1B visa vary based on the specific type and desired processing speeds. The base filing charge from USCIS for an H-1B application is $460 for a small employer or a non-profit and $780 for others. Asylum Program fee of $300 for a small employer and $600 for regular employers. On top of that, there's a Fraud Detection and Prevention Fee of $500. Furthermore, employers with 25 or fewer full-time employees in the U.S. must pay an additional $750 under the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). For those with more than 25 full-time employees, the ACWIA fee is $1,500. Lastly, if an employer has 50 or more employees in the U.S. and over 50% of them hold H-1B, L-1A, or L-1B status, an additional fee of $4,000 is required.

If I am unsuccessful in securing an H-1B visa through the annual cap, are there alternative routes to gain employment in the U.S.?

Yes you may be eligible to work in the U.S. in other types of nonimmigrant visa category like TN status which is available to citizens of Canada and Mexico, E-3 which is available to citizens of Australia, L-1 which is available to multinational corporation, or the O-1 for individual who possesses extraordinary ability in science, arts, education, business, or athletics.

My H-1B petition has been approved with an effective start date of October 1st. How soon can I apply for an H-1B visa at the US Embassy/Consulate?

You are eligible to apply for the H-1B visa 90 days before the effective start date appearing on your H-1B approval notice.

Would it be OK if I take an international trip while my H-1B is still pending?

It is not advisable to travel internationally while your H-1B application is pending, as it could lead to delays or complications in the processing of your application. If you leave the U.S. and your pending petition receives "consular approval" from USCIS, you'll need to exit the U.S. again to secure an H-1B visa stamp in your passport (unless you already have one) before you can return to U.S. in H-1B status.

My driver’s license will expire when my current H-1B approval notice expires. If my pending H-1B extension is not approved by then, what options would I have to renew my driver’s license. 

Most state Department of Motor Vehicles (DMV) may issue you a limited duration driver’s license once you show them the receipt notice for the pending H-1B petition.

Why Choose Our Immigration Lawyers

At Sharma Law Offices, LLC, our Atlanta, GA and Cumming, GA based immigration lawyers have extensive experience in handling H-1B visa cases and other business and employment immigration matters. We understand the complexities of the H-1B visa program and can provide expert guidance and representation to employers and foreign workers.

Our immigration lawyers are dedicated to providing personalized service and attention to detail, ensuring that each case is handled efficiently and effectively. We also offer competitive legal fees and a premium processing service to ensure that our clients receive the best possible outcome.

Whether you are an employer seeking to hire qualified foreign workers or a foreign worker seeking to work in the U.S., our immigration lawyers can help. Contact us today to schedule a consultation and learn more about our immigration law services.