Summary. An H-1B visa is a non-immigrant visa that enables U.S. companies to employ foreign workers in specialty occupations that demand theoretical or technical expertise. The visa is issued for up to three years with the possibility of an extension.
To be eligible for an H-1B visa, a worker must have a bachelor’s degree or higher in a specialty occupation, equivalent work experience and education, and employment on a temporary basis.
To sponsor an H-1B visa worker, an employer must first determine job requirements, check the wage requirements, advertise the job, file a Labor Condition Application (LCA), file the H-1B petition, wait for USCIS processing, obtain an H-1B visa, begin employment, renew the H-1B visa and plan for the worker’s departure.
The H-1B program has a cap of 85,000 visas per year, including a limit of 20,000 visas for individuals with master’s degrees or higher from a US higher education institution.
There is a perception that the program may displace US workers and depress wages; however, the program remains an essential opportunity for foreign talent to work in the US and contribute to the country’s economy and innovation.
Key Takeaways:
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The H-1B visa allows US employers to hire foreign workers in specialty occupations that require theoretical or technical expertise in fields such as STEM.
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Employers must pay H-1B workers the prevailing wage for their occupation in the geographic area where they will work.
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The visa is issued for an initial period of up to three years, with the possibility of extending for another three years, and allows for dual intent (seeking permanent residency while working in the US).
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The H-1B visa program is subject to an annual cap of 85,000 visas, with a cap of 20,000 visas for individuals with a master’s degree or higher from a US institution of higher education.
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To qualify for an H-1B visa, an individual must have a bachelor’s or higher degree in a specialty occupation, equivalent work experience and education in a specialty occupation, or be employed in a job that requires a specialized body of knowledge and skills.
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Employers must follow a ten-step process to sponsor an H-1B visa worker, including determining job requirements, checking wage requirements, advertising the job, filing a Labor Condition Application, and filing the H-1B petition.
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Despite criticism, the H-1B visa program remains an important avenue for foreign talent to work in the US and contribute to the country’s economy and innovation.
What Is an H-1B Visa?
An H-1B visa is a non-immigrant visa that allows US employers to hire foreign workers in specialty occupations that require theoretical or technical expertise in fields such as (but not limited to) science, technology, engineering, or mathematics (STEM).
The visa program is designed to address the shortage of skilled workers in the US labor market and enable US companies to recruit talented professionals from around the world.
The H-1B visa program is subject to a range of laws and regulations that dictate the eligibility criteria, application procedures, and employment conditions of visa holders.
One such law requires employers to pay H-1B workers the prevailing wage for their occupation in the geographic area where they will work. Employers must also attest that the hiring of the H-1B worker will not adversely affect the wages and working conditions of similarly employed US workers.
The H-1B visa is a dual-intent visa, which means that holders can seek permanent residency in the US while working under the visa. The visa is issued for an initial period of up to three years, with the possibility of extending it for another three years.
However, there is a limit on the number of H-1B visas that can be issued each year, currently set at 85,000, which includes a cap of 20,000 visas for individuals who hold a master’s degree or higher from a US institution of higher education.
The H-1B visa program is highly competitive, with more applications received than available visas each year. Applicants are selected through a random lottery system, and those who are selected must go through a rigorous application process, which includes background checks and verification of their qualifications and employment.
Despite criticisms that the program may displace US workers and depress wages, the H-1B visa remains an important avenue for foreign talent to work in the US and contribute to the country’s economy and innovation.
Who Qualifies for H-1B Visas?
An individual who meets the following criteria may qualify for an H-1B visa under current laws:
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A worker with a bachelor’s or higher degree in a specialty occupation or with equivalent work experience and education in a specialty occupation
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Individuals who are employed in a job that requires a specialized body of knowledge and skills
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Individuals who will be working for the given US employer on a temporary basis
The US Citizens and Immigration Services (USCIS) defines a “specialty occupation” as an occupation that requires:
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Theoretical and practical application of a body of highly specialized knowledge
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A bachelor’s or higher degree in the specific specialty (or its equivalent)
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The job offer requires a degree in the specific specialty or its equivalent for entry into the position
Some examples of specialty occupations might include:
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Computer systems analysts
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Software developers
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Mechanical engineers
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Electrical engineers
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Physicians
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Scientists
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Professors
As discussed previously, the USCIS also puts a number of stipulations on the employers who serve as sponsors. These laws regard ensuring that the local economy will not be affected by a preference for foreign workers.
Even workers who meet these qualifications should know that there is an annual cap for the number of H-1B visas issued and that the process is highly competitive.
10 Steps for Sponsoring an H-1B Visa Worker
If you’re an employer interested in sponsoring an H-1B visa worker, here are the steps you need to follow:
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Determine the job requirements. The first step is to determine the job requirements and identify whether the position qualifies for an H-1B visa. The position must be a specialty occupation that requires a higher degree of education or specialized knowledge.
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Check the wage requirements. The employer must offer the H-1B visa worker a prevailing wage that is comparable to the wages paid to similarly employed workers in the area of intended employment.
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Advertise the job. The employer must advertise the job in the U.S. to ensure that no qualified U.S. worker is available to fill the position. This includes posting the job on the employer’s website and at a minimum of three other sources, such as job boards, newspapers, or trade publications.
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File a Labor Condition Application (LCA). The employer must file an LCA with the U.S. Department of Labor (DOL). The LCA outlines the terms and conditions of employment, including the job duties, wages, and working conditions.
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File the H-1B petition. Once the LCA is approved, the employer can file the H-1B petition with the U.S. Citizenship and Immigration Services (USCIS). The petition must include all required documents, such as a job offer letter, proof of the worker’s qualifications, and evidence of the employer’s ability to pay the prevailing wage.
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Wait for USCIS processing. USCIS will review the petition and may request additional information or documentation. The processing time can vary, and premium processing is available for an additional fee.
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Obtain an H-1B visa. If the petition is approved, the H-1B visa worker can apply for an H-1B visa at a U.S. embassy or consulate. The worker must provide proof of the job offer, qualifications, and ties to their home country.
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Begin employment. Once the H-1B visa is granted, the worker can begin employment with the employer. The employer must comply with all H-1B regulations and requirements throughout the worker’s employment.
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Renew the H-1B visa. The H-1B visa is valid for up to three years and can be renewed for an additional three years. The employer must file a new LCA and H-1B petition for each renewal.
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Plan for the worker’s departure. The H-1B visa is a temporary visa, and the worker must leave the U.S. when their employment ends or their visa expires. Employers should plan for the worker’s departure and ensure that the worker’s transition is smooth and compliant with all applicable regulations.
Sponsoring an H-1B visa worker requires careful planning, adherence to all regulations, and thorough documentation. Employers should seek guidance from an immigration attorney or an experienced HR professional to ensure compliance and avoid any potential legal issues.
H-1B Sponsorship FAQ
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How long does it take to sponsor an H-1B visa?
The processing time for sponsoring an H-1B visa:
This can vary depending on several factors, including the volume of petitions received by USCIS, whether the petition is subject to the annual cap, and whether premium processing is requested. Generally, the process can take several months to complete, but premium processing can expedite the process to as little as 15 days.
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How much does it cost employers to sponsor H-1B visas?
The cost of sponsoring an H-1B visa:
This includes several separate fees, such as the filing fee for the H-1B petition, the fee for the Labor Condition Application, and an optional fee for premium processing.
The employer is also responsible for paying the prevailing wage to the H-1B worker. The total cost can vary depending on the size of the company, the number of H-1B workers sponsored, and the optional premium processing fee.
As of 2021 (according to the most recent data), the filing fee for an H-1B petition is $555, and the fee for premium processing is $2,500.
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What are the chances of H-1B approval?
The chances of H-1B approval can vary depending on several factors, including the job requirements, the qualifications of the H-1B worker, and the number of petitions submitted to USCIS.
Each year, USCIS sets a cap on the number of H-1B visas that can be granted, and the number of petitions received often exceeds this limit.
Additionally, USCIS may request additional documentation or evidence to support the H-1B petition, which can delay or even result in denial. However, employers who carefully follow all H-1B regulations and provide thorough documentation can increase their chances of approval.
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Do family members of H-1B visa holders qualify for a visa as well?
Yes, family members of H-1B visa holders may be eligible for visas as well.
H-1B visa holders can apply for H-4 visas for their spouses and children under the age of 21. H-4 visa holders can reside in the U.S. but are not authorized to work unless they obtain their own work authorization.
H-4 visa holders may also attend school in the U.S. Family members of H-1B visa holders must meet the eligibility criteria for an H-4 visa, and the H-1B visa holder must maintain their status for their family members to remain eligible for H-4 visas.
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What happens if an H-1B visa holder is fired from the employer that sponsors them?
If an H-1B visa holder is terminated or laid off by their employer, they may have a limited amount of time to find a new job and a new employer to sponsor their H-1B visa or risk being out of status.
Generally, H-1B visa holders have a 60-day grace period after their employment ends to find new sponsorship or to leave the country. During this time, they are not authorized to work unless they find a new employer to sponsor their visa.
If H-1B visa holders are unable to find a new employer or leave the country before the grace period ends, they risk being subject to deportation.
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Author
Lilly Chesser
