H-1B: Specialized Temporary Worker

March 28, 2024

H-1B visas are temporary worker visas used by U.S. companies to employ foreign college graduates, or higher, who have degrees in a specialized field, also referred to as a specialty occupation. The employer’s position must require specialized knowledge gained from a bachelor’s degree or higher in a specific specialty, or its equivalent, to qualify. There are very specific requirements to be eligible for an H-1B visa, and government frequently questions whether a position meets them, and we work with our clients to submit fully complete applications.

What are the requirements for an H-1B visa?

First, the position itself must meet the criteria to qualify as a specialty occupation. Second, the foreign individual must be qualified to perform the duties of the position, and documentation establishing both are required.

The position must meet one of the following criteria to qualify as a specialty occupation:

The position normally requires a bachelor’s degree or higher in a specific field.
A degree is required by similar companies in the industry, or the position is so complex that a degree is required to perform the tasks of the job.
The employer normally requires a degree for the position.
The duties of the position are so specialized and complex that the knowledge gained from a bachelor’s degree or higher would be required to perform the duties.

The individual seeking the H-1B visa will be qualified to perform the duties associated with the position. To be qualified, the individual must meet one of the following:

Have a U.S. bachelor’s degree or higher by an accredited university.
Have a foreign degree that is the equivalent to a U.S. bachelor’s degree or higher by an accredited university.
Have a license, registration, or certification that allows you to practice the specialty occupation in the state of intended employment.
Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation.

What types of positions are typically specialty occupations?

Licensed professions, such as architects, engineers, medical doctors, lawyers, accountants, etc., qualify for an H-1B visa. Additionally, professions requiring STEM degrees, such as scientific research and positions in technology, engineering, mathematics, software development, or other highly technical fields also qualify.

If you or your employer have questions regarding whether your position will qualify for an H-1B visa, please schedule a consultation so we can evaluate whether the position meets the requirements above.

How many foreign nationals qualify for an H-1B visa?

Each year, U.S. employers can file a maximum of 65,000 first-time applications for foreign nationals holding bachelor’s degrees and 20,000 first-time applications for foreign nationals holding U.S. master’s degrees. The applicants are determined by a lottery system. This is known as the “H-1B Cap Season.”

A second avenue to obtain an H-1B visa is when an employer is cap-exempt, meaning applicant does not have to go through the numerical lottery and can apply at any time. Cap-exempt employers include institutions of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization.

When can I apply for an H-1B visa?

First, if the employer is subject to the numerical cap, then both the employer and foreign national must register with the United States Citizenship and Immigration Services (“USCIS”) to enter the lottery system because there are always more applicants than visas available. The registration is $10. The registration window is March 1st-20th. USCIS will inform registrants who are selected in the lottery by March 31st. If you are not selected in the lottery, you cannot continue with the application process.

If you are selected in the lottery, then the earliest you can apply is April 1st for an October 1st start date with your employer.

If you have a cap-exempt employer, then you can apply at any time.

What is the process of applying for an H-1B: Specialized Worker visa?

Whether you are outside or inside the U.S., the process of applying for an H-1B visa is the same.

First, the employer must obtain a certified Labor Condition Application (“LCA”) from the Department of Labor. The LCA sets the “prevailing wage” for the position, which is the minimum wage rate the employer can offer to the foreign national.

Next, you will fill out Form I-129, Petition for a Nonimmigrant Worker, plus its supplements, and obtain the required supporting documentation. You can also file Form I-907 for premium processing, for an additional fee, so USCIS guarantees communication with you within 15 days of filing your application. Note: “communication” does not mean approval. It could mean approval, but it could also mean a request for additional information or a denial.

The supporting documentation needed for the application includes, but is not limited to, the following:

Copy of the Registration Selection Notice
Certified LCA
Letter from the US employer
Evidence of the employer’s business and ability to pay the prevailing wage
Detailed job description
Documents showing the terms and conditions of employment
Copy of the beneficiary’s degree(s), with translations, if applicable
If the degree is foreign, an evaluation stating that it is equivalent to a U.S. bachelor’s degree or higher
Copy of the beneficiary’s resume
Copy of the beneficiary’s passport
Arrival-Departure Record (Form I-94) if the beneficiary is in the United States
If already in the U.S., evidence of lawful status

What are the fees for filing an H-1B petition?

You can expect different fees while filing your H-1B petition. The fees will vary depending on the U.S. employer. The visa fees are as follows:

The basic fee for filing Form I-129 is $460.
American Competitiveness and Workforce Improvement Act (ACWIA) fees: either $750 (when the number of employees is 25 or less) or $1500 (when the number of employees is 26 or more).
Anti-fraud fee to prevent or detect H-1B fraud is $500 (if applicable)
Public Law 114-113 fee of $4,000 (if applicable)
Optional: Form I-907 for premium processing is $2,500.

How long will my H-1B visa be valid?

Your visa will be valid anywhere from one to three years at first, depending on the evidence provided about the position. For example, a software developer could receive a three-year visa, while a physician during residency would only receive a one-year visa.

You can extend your H-1B visa up to six years. There are certain exceptions to the six-year H-1B limit. The most common scenarios are when the foreign national is on the path to permanent residency and has an approved Form I-140 or if the I-140 application was filed at least 365 days before the end of the sixth year or the requested H-1B start date. In these scenarios, the beneficiary’s H-1B status can be extended in one- to three-year increments, indefinitely.

How long will it take USCIS to approve my H-1B visa?

The processing times for an H-1B visa vary depending on a range of factors, including the volume of visa application, the specific office in which the petition was filed, the strength of your application, whether USCIS requests additional evidence, and whether you apply for premium processing.

How do I get my H-1B visa stamp?

Once your H-1B petition is approved, you can get the visa stamped in your passport. If you are already in the United States, it is not required to get the stamp before working on your H-1B visa. However, if you are outside the U.S. or are planning to travel outside the U.S., then you’ll need a visa stamp.

The first step is scheduling an appointment for a visa interview with the U.S. consulate or embassy. This can be in your home country or a third country, if their rules allow it. You’ll need to visit the official website of the U.S. Department of State to complete the online DS-160 visa application form and pay the associated visa fee.

The documents required for the interview are different than the supporting documents for the H-1B petition. You should bring the following documents to the interview:

A valid passport with a validity date at least six months beyond your entry in the U.S.
A copy of the H-1B approval notice (Form I-797)
A copy of Form I-129 and its supplements submitted with your petition
A copy of the certified LCA
Employer letter
Offer letter
The DS-160 confirmation receipt
Passport-sized photos meeting specific requirements
A copy of your resume
Educational and professional certificates
If you’ve been working in the U.S., then your last three paystubs

At the visa interview, a consular officer will ask you questions about your intended job, employer, and other relevant details about your position such as job duties. It’s crucial to answer truthfully. Depending on the consulate, you may be required to provide biometric data, including fingerprints and a photograph.

Sometimes the consular officer will give you a decision at the interview. Or you may be requested to provide additional information. Or your case may go into administrative processing. Or you may get a denial and the reason for it.

If approved, your passport will be stamped with the H-1B visa, which can take a few days to a couple of weeks. This allows you to come to or re-enter the United States.

Can my spouse and children come to the U.S. with me?

Yes! Your spouse and unmarried children under the age of 21 can apply for H-4 status, which can be submitted with the initial H-1B petition or anytime thereafter. However, if it is not submitted with the initial H-1B petition, it would not be eligible for premium processing.

Can I change employers once I have an H-1B visa?

Yes! Your new employer must file a new H-1B petition on your behalf. This petition is referred to as a transfer. Once USCIS receives the transfer petition, you may begin working for your new employer. You do not have to wait until the petition is approved.

What happens if I lose my job on an H-1B visa?

USCIS allows a 60-day grace period (or until the end of your authorized stay, whichever is shorter) during which you can either find new employment or change your immigration status. This grace period provides some flexibility and allows you to explore your options without immediately departing the U.S. If you cannot secure new employment or change your status within the grace period, you must prepare for departure from the U.S. to avoid violating your visa status.

Navigating the H-1B visa process can be challenging. If you need legal assistance or guidance, please don’t hesitate to contact us. We’re here to help you understand your options and work towards the best possible outcome for your immigration situation.