H-1B Visa, An Overview
The H-1B is a nonimmigrant visa that allows foreign nationals to work in a specialty occupation for up to six years. Under certain circumstances an H-1B visa may be extended beyond six years, but foreign nationals are customarily required to live outside of the United States for one year to regain H-1B eligibility. To qualify for an H-1B, a foreign national must meet the educational requirements for, and be employed in, a specialty occupation by a United States employer.
Specialty occupations are statutorily defined as those that require theoretical and practical application of a body of highly specialized knowledge and the 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. Accordingly, an H-1B worker must possess at least a Bachelor's degree, or the equivalent education and work experience, and be employed in an occupation that requires a Bachelor's or higher degree.
Employers have specific obligations related to the employment of H-1B workers, many of which the employer consents to through the mandatory filing of a Labor Condition Application (Form ETA 9035) with the U.S. Department of Labor. Among other commitments assumed in the Labor Condition Application, the employer agrees to:
- Pay the H-1B employee the required wage, calculated as the greater of the actual wage or the prevailing wage, for the full period of authorized employment;
- Offer the H-1B employee benefits on the same terms as offered to U.S. employees;
- Ensure the working conditions of U.S. employees will not be adversely affected; and
- Provide the H-1B employee the same working conditions as U.S. employees.
The obligation to pay an H-1B worker their full, required wage only ceases if the employee's H 1B status expires or the employee is terminated. The Employer remains obligated to pay the required wage if the employee is placed in a non-productive status by the employer (i.e., furlough, benching or temporary layoff). If an H-1B worker is terminated prior to the expiration of their H-1B status, the employer is required to provide the employee transportation to their last residence abroad.
U.S. Employers can petition for H-1B status on behalf of eligible foreign nationals. If the foreign national is in the U.S. in H-1B visa status, a new employer my file an H-1B transfer. The FN may begin working for the new employer while the H-1B petition is pending under the H-1B portability rule. If the foreign national is in the United States in another status, they may be eligible to change status without leaving the country. In this case they must wait for approval prior to joining the employer.
The United States Citizenship and Immigration Services (USCIS) requires petitions for H-1B status to minimally include:
- Form I-129, Petition for a Nonimmigrant Worker and applicable H-1B supplements;
- A signed, certified Labor Condition Application (Form ETA 9035);
- Evidence and/or documentation supporting the assertions made in the petition, including evidence of the foreign national's education, the terms of employment and how the position offered qualifies as a specialty occupation; and
- The required government filing fee, ranging from $320 to $2,320.
The processing times for H-1B petitions vary, but petitions are usually adjudicated in three to six months. To expedite the process, an additional premium processing fee of $1,000 can be paid to guarantee adjudication within 15 calendar days. Once the employer receives an approval notice, the foreign national may apply for a visa at a U.S. consulate abroad.
Numerical Limitation (H-1B Cap)
The number of H-1B visas available each fiscal year is capped at 65,000, with an additional 20,000 visas available for foreign nationals with a Master's degree or higher from a U.S. institution. Foreign nationals working in the H-1B status for institutions of higher learning, affiliated research organizations, non-profit research organizations and governmental research organizations are exempt from the annual cap. The USCIS begins accepting petitions for H-1B visas each year on April 1st and continues to accept petitions until the fiscal year cap has been exhausted. In the event more petitions are received on the first filing day than available H-1B visas, the USCIS conducts a lottery to determine which petitions will be processed.