H-1B: Professional Worker Visas

What Is the H-1B Visa?

The H-1B visa is a nonimmigrant work visa for specialty occupations. These occupations include the Department of Defense (DOD) Cooperative Research and Development workers, fashion models, or other specialty employees with eligibility under H-1B visa guidelines. Individuals who wish to enter the United States for corresponding occupations may apply for an H-1B visa.

An important factor to the H-1B visa application is that the H-1B petition must be done on your behalf by your employer. Thus, your employer must apply for the visa. They have their own set of requirements in order to apply, as well.

Am I Eligible for A Visa: H-1B Visa Requirements?

In order to apply for entry into the United States with an H-1B visa, you and your employer (your petitioner) must meet certain H-1B requirements. The United States Citizenship and Immigration Service (USCIS) requires a bachelor’s degree in most H-1B cases, yet may accept criteria that they credit as equivalent. There are different requirements for each of the three H-1B classifications:

H-1B Specialty Occupations Requirements

• You must have a bachelor’s degree, advanced degree, or bachelor’s degree equivalent from an accredited university or college if your education was completed outside the U.S.
• Your job position must be complex and advanced enough to require a bachelor’s degree or higher for the entry position (for your position and for all others like it in and outside of the company)
• Your position must allow you to practice and apply theories of your specialized knowledge
• Your duties must be specialized in your knowledge base — your job duties and education are usually correlated

Specialty occupations may include jobs such as medical personnel, researchers, engineers, attorneys, and others similar to these levels of prestige, academically or otherwise.

H-1B2: DOD Researcher and Development Project Worker Requirements

• The job position requires you to have a bachelor’s degree or an equivalent
• The DOD project manager must send a verification letter stating that you will be working on a research and development project
• A description of your job duties for the particular project including start and end dates
• A statement about the project that includes the current and recent immigrants employed on the project

H-1B3 Fashion Model Requirements:

• The applicant must be a prestigious fashion model
• You must have distinguished merit and capability

H-1B Visa Employer Requirements

• Your employer/petitioner must prove they have the funds to pay you in your professional position equal to that of others in similar positions
• Provide an official job offer
• Must adhere to Department of Labor (DOL) standards

H-1B Visa Process

Before petitioning for the H-1B application, you and your employer need to register online first. The online registration has representatives (your employer) and registrants (the prospective petitioners) input basic information. There is a $10 fee to register. The registration is for employment for the upcoming fiscal year to apply for the H-1B cap petition. Registration begins March 9th, 2021 and closes on March 25, 2021. Your account will also tell you your submitted status and eventually the USCIS’s decision.

How to Apply for H-1B Visa: Petition Filing Process

1. Your employer must apply for DOL certification of a labor condition application (LCA). An LCA is needed if you are applying for the specialty occupation or fashion model classification of the H-1B visa.
2. Your employer must fill out, complete, and send in Form I-129, Petition for a Nonimmigrant Worker, to the correct direct filing address. There is a $460 filing fee. You must submit the requested supplementary documentation and, if necessary, the approved LCA with your Form-129.
3. Once your Form-129 is approved, you can apply for your official H-1B visa at the U.S. Department of State or U.S. embassy or consulate.

Labor Condition Application

A business needs a Labor Condition Application so the employer can prove their company follows the Department of Labor’s work standards for H-1B rules. To be approved for an LCA, your employer must prove:

• They will pay you a wage equal to or greater than the typical wage for employees in your field/position located in the region around the company
• There are not any strikes or lockouts happening during the application process
• The union bargaining representative is aware of the labor condition application, or an LCA application notice has been publicly posted
• The working conditions are safe and will not harm employees

H-1B Period of Stay and Cap

Applying for an H-1B visa right when the online registration opens is crucial to your H-1B visa attainment. Every fiscal year, there is a cap of 65,000 H-1B visas. Other visas do not have a cap — rather, the visa numbers are dependent on the country of origin and the number of people from the country applying for a particular visa.

There are exceptions to the cap, which is where online registration comes into play. The online process lets the USCIS know if you are eligible for an exemption. The USCIS has an allotted 20,000 visas for those with advanced degrees (U.S. Master’s degree or higher). The advanced degree exemption is only available until the number of visas reaches 20,000. You can get H-1B program updates through USCIS.

The H-1B period of stay is up to three (3) years. You can also apply for extensions which can be permitted up to 6 years with the H-1B visa. There are exceptions to this rule under the American Competitiveness in the Twenty-First Century Act (CA21).

If it so happens that your employment is terminated, your employer who petitioned for you is liable for any costs for your return to your country of origin. They are not liable for costs, however, if you choose to resign from your position.

Family Members of H-1B Holders

Spouses or unmarried children (under 21 years old) of H-1B visa holders may apply for H-4 nonimmigrant classification. You may also file Form I-765, Application for Employment Authorization, if the H-1B holder has started the process for permanent residency.

H-1B Visa Lawyer

Obtaining an H-1B visa card can be a complicated process. Working with an experienced attorney who is seasoned in employment and family-based immigration can help you navigate the H-1B application process. With keen attention to detail and knowledge about timelines and necessary documents, immigration H-1B lawyers are here to help you.

Contact an Immigration Attorney Today

The lawyers at Scott D. Pollock & Associates P.C. have over 70 combined years of experience in immigration and nationality law. Our H-1B lawyers are here to help and guide you every step of the way through the H-1B visa process. Contact us online or through the phone at (312) 444-1940.