ELITE IMMIGRATION
SOLUTIONS
Helping startup founders, companies, and families meet their immigration needs
Request a Consultation

H-1b work visa

H-1B work visa is available to temporary workers in specialty occupations and distinguished fashion models. Examples of specialty occupations are accountant, computer programmer, software engineer, database administrator, attorney, medical worker, etc. In addition, in certain situations, an H-1B work visa can be an option for startup founders and business owners.

What is H-1B visa?

H-1B visa is a temporary nonimmigrant category that permits U.S. employers to petition highly qualified foreign professionals to work in the U.S. in “specialty occupations” that typically require a U.S. bachelor’s degree or foreign equivalent. H-1B visas are also available to distinguished fashion models.

H-1b visa status

We often get asked – what does h-1b visa status mean? An H-1B status relates to the applicant’s status inside the United States. There is an important distinction between an H-1B visa stamp and an H-1B status. An H-1B visa stamp is a document that allows a foreign national to enter the U.S. However, once the foreign national enters the United States with an H-1B visa stamp, their status will be an H-1B status.

H-1B status is normally granted for three years and may be renewed at one-year to three-year increments with a total maximum of six years. To get an extension after six years, H-1B visa holders must apply for an employment-based green card.

Requirements

To get an H-1B visa, you must meet the following minimum H-1B visa requirements:

  1. You must have a job offer from a U.S. employer;
  2. You are coming to the U.S. to perform services in the specialty occupation;
  3. You have a U.S. Bachelor’s degree or a foreign equvalent. In absence of a relevant degree, you may be able to use relevant work experience in the field instead;
  4. Your education and experience need to match the job requirements;
  5. You have been offered prevailing wages (wages that are typically paid to workers for similar jobs in the same geographical area);
  6. You have been selected in the H-1B visa lottery;
  7. Your employer has to file a Labor Certification Application (LCA) with the Department of Labor;
  8. Your employer must file an I-129 H-1B petition with USCIS.

Application

The H-1B visa application includes multiple steps. If you have already been counted towards the H-1B visa cap, are exempt from the H-1B cap count,  or were recently chosen in the H-1B visa lottery, the employer can begin the H-1B application process by submitting an H-1B petition on your behalf to USCIS.

Typically, with the help of an immigration lawyer, the employer will file a Labor Condition Application (LCA) for certification with the Department of Labor(DOL). After the DOL certifies the LCA, the employer will prepare the H-1B petition containing multiple items such as a Petition for a Nonimmigrant Worker (Form I-129), certified LCA, H-1B supporting paperwork, and applicable government filing fees. The H-1B application supporting paperwork usually includes items such as an H-1B support letter that explains how you qualify for the benefit sought, proof of your relevant education, licensing, and experience, employment offer letter, as well as evidence of the company’s existence, such as corporate documents and financials.

If the H-1B petition is approved, the next steps depend on whether the applicant is in the U. S. or abroad. If the applicant is in the U.S., the applicant’s H-1B status will be fact-specific. It will depend on the applicant’s status in the U.S. and what the employer specifically requested in the H-1B petition. For example, did the employer request a change of H-1B employer and/or an H-1B extension for someone who has been in a lawful H-1B status. Or if the applicant is in some other lawful status, such as an F-1 status.

If you are abroad and do not yet have a valid H-1B visa stamp in your passport, you must apply for an H-1B visa through consular processing. To do so, you must fill out Form DS-160, which will take around 90 minutes to complete. You must also pay a visa application fee and schedule an interview in a U.S. consulate or embassy near you. You will need to appear for the interview and bring the required paperwork, such as a DS-160 confirmation page, I-797 H-1B approval notice, as well as your valid passport. You should also review the consulate’s requirements to ensure you bring all necessary documentation with you.

Extension and Renewal

Suppose the H-1B beneficiary is employed as an H-1B temporary worker. However, their current authorization will expire before the employment is expected to end. In that case, your employer can initiate an H-1B extension process for you. Requesting an H-1B renewal is similar to the initial H-1B application, and your employer must file an H-1B petition on your behalf.

H-1B Extension Eligibility: Your employer can request an extension of your H-1B status if you remain in a valid H-1B status and remain employed in a specialty occupation (a position requiring specialized knowledge and skills).

The employer should initiate the H-1B extension application at least 3-6 months before your H-1B status expires.

Transfer

Individuals with the current H-1B visa status or prior H-1B status may be able to transfer to a new company. The visa holder does not require authorization from the former employer to transfer the H-1B visa to a new employer.

To transfer an H-1B visa status to a new employer, the new employer must file an H-1B change of employer petition with USCIS.

Sponsorship

H1B sponsorship allows U.S. companies to bring foreign professionals to the United States for temporary work. The U.S. employer is responsible for filing the H-1B visa petition with USCIS. After that, if the H-1B petition is approved, the employer is responsible for providing the H-1B employee with the same job benefits as other employees, including bonuses, benefits, etc.

H-1b visa to green card

While an H-1B visa does not automatically lead to a green card, a U.S. employer may sponsor you for a green card through employment-based categories EB-1, EB-2, and EB-3.

Unlike some other visas, the H-1B visa is a “dual intent visa,” which implies that the applicant can apply for the H-1B visa with the aim to reside in the United States permanently. Dual intent allows the H-1B visa holder to apply for a green card while still holding an H-1B status.

Only two employment-based categories allow self-sponsorship, which are EB-1A Extraordinary Ability and EB-2 National Interest Waiver (NIW). The other categories will require the sponsoring employer to initiate the green card process.

The process of sponsored employment-based green card application will include a PERM Labor Certification application, which the Department of Labor must approve. After obtaining the PERM Labor Certification, the company must file Form I-140, Immigrant Petition for Alien Worker.

Following the approval of the I-140 Immigrant Petition for Alien Worker, the applicant applies to adjust status from an H-1B visa holder to a U.S. permanent resident.

H-1b visa lottery

Each fiscal year, the H-1B classification has a numerical limit of 65,000 new H-1B visas or statuses. Additionally, 20,000 H-1B visas or statuses are available to H-1B applicants with U.S. master’s degrees or above. Because each year there are more H-1B applications than visas available, USCIS conducts an annual H-1B visa lottery. The selected H-1B petitions can proceed to the H-1B visa application stage.

It is important to note that there are some exceptions to the H-1B visa lottery. If you have already been selected in the lottery in the previous year(s) and are holding an H-1B status, you likely do not need to participate in the H-1B visa lottery again. Also, H-1B beneficiaries who are petitioned by or employed at higher education institutions or their associated or related nonprofit entities, nonprofit research organizations, or government research agencies are not subject to H-1B numerical restriction.

To play in the H-1B visa lottery, the employer first must register the H-1B beneficiary with USCIS during the open period. This year, the registration period is opened March 1 to March 18. USCIS conducts the lottery at the end of March and notifies those selected. Typically, the employer has 90 days to prepare and submit an H-1B visa application.

New H 1b visa

U.S. immigration laws presently limit the number of new H 1B visas to 65,000 annually. Another 20,000 visas are available to those with advanced degrees from U.S. colleges. Because there are more applicants than H 1B visas available, companies are required to register with USCIS and play in an annual H 1B visa “lottery.” Foreign nationals who are selected in the H-1B lottery will be counted towards the H-1B visa cap and will be allowed to apply for H-1B visa.

If you have never been counted towards the H-1B visa cap and your employer is a cap-subject employer (i.e. the employer is not exempt from the H-1B visa limitations), you will need to be selected in the lottery in order to apply for the visa.

Petitioners who are not chosen in the lottery cannot proceed with the H-1B visa application.

H-1B visas are not subject to an annual H-1B visa cap: Not all applicants are subject to an annual H-1B visa cap. H-1B applications filed by higher education institutions, non-profit entities affiliated with such educational institutions, and some non-profit research organizations are excluded from the 65,000 visa quota. As a result, cap-exempt petitions can be filed throughout the year and are effective upon approval (as opposed to new cap-subject petitions, which are effective on the start date of the next fiscal year–October 1).

Stamp

If you obtained your H-1B visa status while present in the U.S., you do not need to apply for a visa stamp unless you travel abroad. H-1B visa stamping refers to the process in which you apply for an H-1B visa at a consulate abroad. If approved, the H-1B visa stamp will be placed in your passport. An H-1B visa stamp is required to enter the United States.

H-1B visa stamping process:

  • Prepare and submit a DS-160 application.
  • Complete application payment and schedule the appointment.
  • Appear for the interview and submit supporting documents.

Cost

The cost to apply for an H-1B visa will include attorney’s fees and government filing fees.

Attorne’s Fees:

The attorney’s fee to prepare an H-1B petition from start to finish can typically range between $3,500 and $4,000, depending on complexity. However, if USCIS issues a Request of Evidence (RFE), the employer should anticipate additional attorney’s fees to cover the time to respond to the RFE.

Required H-1B Fees:

  • The government H-1B filing fees will include a $460 fee for an I-129 petition.
  • A $500 Fraud Prevention and Detection Fee applies to new H-1B petitioners or those transferring employment.
  • ACWIA (Training) Fee: The ACWIA fee is $750 for companies with 1 to 25 full-time employees and goes up to $1,500 for companies with more than 26 full-time employees. Some organizations, such as non-profits affiliated with educational institutions, governmental research organizations, primary/secondary educational institutions, and so on, are exempt from the ACWIA fee.
  • Public Law 114-113 Fee: This H-1B visa fee applies to businesses with more than 50 employees, more than half of whom are in H-1B or L1 status. These businesses must pay an extra fee of $4,000.

Optional H-1B Fees:

  • Those interested in speeding up the H-1B petition adjudication process may request premium processing from USCIS. The premium processing fee is an additional $2,500 but will ensure the USCIS reviews the H-1B petition within 15 calendar days.
  • Another possible cost is when the H-1B principal applicant and family members apply for H-1B visa stamps at a consulate abroad.

Alternatives

There are numerous alternatives to the H-1B visa. Some of the H-1B visa alternatives include O1 extraordinary ability visa, L-1 intracompany transferee visa, E-2 treaty investor or E-1 treaty trader visas, J1 visas, TN visas, and E-3 visas for Australian Specialty Occupation Workers.

O-1 Visa

The O-1A visa is a nonimmigrant work visa established for those with extraordinary abilities and achievements in the fields of science, education, business, or athletics. Other categories are available within the  O-1B category for persons who have demonstrated remarkable performance and achievements in the arts, motion picture, or television industries. The petitioning employer in the United States would be required to submit evidence that the employee fits the O-1 visa standards.

For experienced experts in their area, the O-1A visa might be a good option because it is not cap-subject. Therefore, there are no limitations on visa numbers available annually. Also, the O-1 visa has no restriction on the number of maximum extensions.

L-1 Intracompany Transferee Visa

The L-1A or L-1B visa choices are appropriate for foreign organizations with offices in the United States that want to temporarily relocate personnel to the US.

The petitioning company must demonstrate that the beneficiary has worked for its overseas office/branch or subsidiary for at least one full year in the last three years as a manager, executive, or employee with specialized knowledge. While there is a maximum number of extensions allowed for L1 visas, there are no numerical limitations and no H1B lottery.

E-3 Visa: Australian Specialty Occupation Workers

The E-3 visa category is reserved for Australian citizens coming to the United States primarily to engage in specialty employment, which must meet similar minimum requirements as the H1-B visa. However, E-3 visa is a lot more flexible because it does not require a lottery, it is typically less competitive compared to the H-1B visa process, and no limit on the number of extensions.

E-2 Treaty Investor Visa

The E-2 treaty investor visa allows people from countries with which the United States has the treaty to come to the United States to build or buy a business that will benefit the US economy.

FAQ

How long is an h-1b visa good for?
Generally, the initial H-1B visa duration is for 3 years, which can be extended to a total of 6 years. However, when the six years are up, the applicant will be required to spend a year abroad before applying for the H-1B visa again. However, there are certain exceptions to the 6-year-maximum H-1B visa rule. To be able to extend your H-1B visa beyond the maxium six years, you must qualify for one of the few exceptions. Recapture Rule: The H-1B 6-year maximum time is counted only while the H-1B beneficiary is present in the United States. Therefore, the time the H-1B beneficiary spends abroad during those six years can be "recaptured." For example, suppose you spent three months abroad during those six years. In that case, you could request additional three months for your H-1B extension beyond the maximum six years. Pending PERM: Another way to qualify for an H-1B extension beyond six years is if you are a Beneficiary of a PERM application, which has been pending for over 365 days. In this situation, the Beneficiary can extend their H-1B status at 1-year increments until the final decision on the PERM application is issued. Backlogged priority date: Another reason why an H-1B applicant may be able to extend their H-1B status beyond six years is if they are a beneficiary of an approved employment-based I-140 petition, but they are unable to apply for adjustment of status ("green card") because their priority date is backlogged. This scenario will typically allow H-1B applicants to extend their H-1B status in 3-year increments.
How to apply for an H-1B visa?
The process of applying for an H-1B visa includes multiple steps. First, you need to obtain a job offer from a U.S. employer willing to sponsor you for an H-1B visa. Second, your employer must complete certain steps in order to apply for an H-1B visa. For those who are not already subject to the H-1B cap, the employer will need to register the beneficiary in the H-1B visa lottery and be selected by USCIS. If you are selected in the lottery, the employer will need to fill out Form I-129, Petition for a Nonimmigrant Worker, pay the government filing fees, and provide the supporting documents to USCIS to evidence that the position and the foreign worker meet the H-1B visa requirements. Part of the H-1B application process also requires filing an LCA with the Department of Labor, which attests that the employer met certain labor conditions. Once the employer files the I-129 H-1B petition with USCIS, the employer will receive a receipt with a case number, followed by a decision within the applicable processing time. If the foreign worker is present in the United States, then the employer can request a change of status to H-1B status or an extension of an H-1B status through Form I-129. If the foreign worker is located abroad at the time of the H-1B petition adjudication, then the foreign worker will have to apply for an H-1B visa at a consulate abroad.
Will you now or in the future require sponsorship for an employment visa (for example, h-1b visa)?
H-1B is a temporary work visa that requires a US job offer. Furthermore, the sponsoring US employer must initiate the process by filing the H-1B visa petition with USCIS. Unfortunately, the foreign national employee cannot petition for an H-1B visa on their own. Therefore, you will require sponsorship for an H-1B employment visa.
After a worker’s h-1b visa expires, the foreigner must _____.
The H-1B visa is nonimmigrant in nature. This means that it does not allow its holder to remain in the United States permanently. Therefore, once the H-1B visa status expires, the H-1B Beneficiary must either depart the United States, ask for an H-1B extension, or change status to a different type of visa category. If the H-1B worker remains in the United States after the H-1B status expires and does not take proper action, the person likely loses lawful status and could be eventually deported.
Have you ever been refused a h-1b?
H-1B visa denial can happen at any stage of the application process. The most common stage of the process where a denial could occur is the I-129 petition. The H-1B I-129 petition aims to establish that both the employer and employee satisfy the H-1B eligibility requirements. Therefore, errors in the I-129 application or ineligibility can lead to an H-1B denial. Some of the common H-1B visa denials are: • H-1B visa petitioner could not establish that the position meets the specialty occupation criterion. • H-1B visa petitioner failed to establish an employer-employee relationship necessary for the successful approval of the visa. • H-1B visa beneficiary does not possess the necessary academic qualifications. For example, if the beneficiary doesn't hold a degree relevant to the specialty occupation. • H-1B beneficiary will work off-site where the H-1B petitioner will not have control over their day-to-day duties. • H-1B beneficiary failed to maintain their lawful status.

H 1b visa lawyer

Our experienced and dedicated H 1B visa lawyer can assist US employers with the timely preparation and filing of H 1B visa petitions. Our comprehensive H-1B visa attorney services include:

Assistance with the LCA filing.

Preparation of Form I-129.

Drafting of the H-1B visa petition support letter.

Response to RFEs.

Furthermore, our H-1B visa attorney offers certain qualified H-1B visa clients free intro consultation, allowing them to learn more about our firm and our services. Feel free to contact our H-1B visa attorney to learn how we can assist you with the H-1B petition approval.

Go to Top