What are H-1B visas

Foreign professional workers who wish to work in the United States in specialized jobs need to know what the H-1B visas are and if they may be eligible for one.

Applying for a visa can be a complex process if you do not have the necessary advice for it. Our Immigration lawyers in New Jersey have extensive experience of more than 10 years advising aliens in any immigration matter.

What You Should Know About US H-1B Visas In 2023

Throughout this article you will find detailed information regarding the United States H-1B visa. This type of American visa belongs to the category of temporary workers. Therefore, any foreigner with a university degree or years of experience in a specific field of work may become eligible for this visa.

What Is The H-1B Visa?

The H-1B nonimmigrant visa is available to aliens who wish to serve in a specialized area, offer their services of exceptional merit, or have distinguished aptitude for cooperative research or development projects for the Department of Defense (DOD). 

Aliens who are high fashion models or provide their services for advertising with great merit or distinguished ability may also be eligible to apply for an H-1B visa.

What Are The H-1B Visas For The United States?

This visa has 3 subcategories:

• H-1B visa for specialty occupations.
• H-1B2 visa for DOD researchers and development project workers.
• H-1B3 visa for fashion models.

H-1B Visa Registration Process

In 2020, USCIS implemented an electronic registration process for the selection of H-1B visas that remains in force in the current 2023:

1. This process is subject to the maximum regulatory amount for this visa.
2. A petition for a visa subject to the maximum amount by regulation is not considered properly filed, unless it is based on a valid and selected registration for the same beneficiary and the respective fiscal year. 

For more information about this electronic process, check the USCIS H-1B visa electronic registration page .

How Much Does It Cost To Apply For The H-1B Visa?

The cost to apply for the H-1B visa can be around $5,720 or so. This is due to the following:

• Electronic registration system fee: $10.
• Basic filing fee for Form I-129: $460.
• Public Law 114-113 fee: $4,000.
• USCIS Anti-Fraud Fee: $500.
• American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee:
  • $750 if the employer has fewer than 25 employees.
  • $1,500 if the employer has more than 25 employees.
• Fee for filing Form I-907, premium processing application (optional): $2,500.

Although these costs can be high, the alien worker usually doesn’t have to pay them, since their employer will be responsible for paying all or most of them.

Read on to learn about H-1B visa eligibility options and many other things to consider.

Who Is Eligible For The H-1B Visa?

The H-1B visa has 3 subcategories, which depend on the type of specialty of the worker. Aliens are generally eligible for an H-1B visa if they have a bachelor or higher degree or its equivalent in work experience and specialized skills. 

To apply for the H-1B visa, the alien must meet the requirements of having a:

• Job offer from a US company willing to sponsor them.
• Job offer for a professional position. Said position must require at least a 4-year bachelor’s or higher degree.
• Salary and working conditions that match the majority of workers employed in the same field and the same geographic area where you will work.
• University degree or a combination of education and/or work experience equivalent to a university degree or field of study directly related to the position to be held in the company.

These are the general requirements for the H-1B visa. However, below we will detail the specific requirements for each of the subcategories of this visa.

H-1B Visa Requirements: Specialty Occupations

The job position requires the following from the foreigner:

• Bachelor’s or higher degree in a specific field (or its equivalent) as a minimum entry requirement.
• Possess extensive specialized theoretical and practical knowledge.

Additionally, the job must meet the following requirements to qualify as a specialty occupation:

• Bachelor’s or higher degree or its equivalent as a mnimum entry requirement.
• The need for a college degree is common in the industry, or the job is so complex that it can only be performed by a worker with a degree.
• The employer requires a degree or its equivalent from the worker to perform the job.
• Specific job duties are so complex or specialized that the knowledge required to perform them is related to a bachelor’s or higher degree.

Eligibility To Accept A Specialty Occupation Offer

In order for the alien to be eligible to accept an offer of an specialty occupation, they must meet the following:

• You have a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university.
• You have a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the same specialty occupation.
• You have a full, unrestricted state-issued license, registration, or certification that authorizes you to practice the specialty occupation and may engage in the specialty.
• Having the educational preparation, training, or experience of progressive responsibility in the specialized field and being recognized for their skills in that specialty.

For this classification, a labor condition application is required. To do this, the employer must include Form ETA-9035/9035E, Labor Condition Application (LCA) with Form I-129, Petition for Nonimmigrant Worker. 

H-1B2 Visa Requirements: Researcher And DOD Development Project Workers

The alien worker must hold a U.S. bachelor’s or higher degree or its equivalent to perform the tasks. The petition may be accompanied by:

1. A verification letter. This must be submitted by the DOD project manager indicating that the recipient will work on a cooperative research and development project or a government-to-government reciprocal agreement project under DOD administration.
2. An overview of the activities. Said tasks will be those carried out by the beneficiary in the particular project. In addition, the beneficiary’s dates of employment in said project must be submitted.
3. A declaration with the names of the non-citizens. This statement must list the names of non-citizens currently employed on the project in the US, their dates of employment, and the names of non-citizens whose employment on the project ended in the previous year.

Eligibility To Accept A DOD Job Offer

To be eligible for this classification, the alien must meet the following:

• Hold a U.S. bachelor’s or higher degree from an accredited university or college, as required by duties. 
• Hold a foreign degree that is the equivalent to a US bachelor’s or higher degree from an accredited university or college.
• Have a full and unrestricted license, registration or certificate authorizing the profession. In addition, you must be hired to perform said profession.
• Have the educational background, training, or experience required for the specialty and have the equivalent of having completed a bachelor in the US or a higher degree. Additionally, you must possess sufficient skill in the specialty through positions of progressive responsibility related to the specialty.

This classification does not require a labor condition application.

H-1B3 Visa Requirements: Fashion Model

For this classification, the position or service requires a fashion model of prominence.. Therefore, to be eligible for this category, the model must have distinguished merits and ability.

The prospective employer must include Form ETA-9035/9035E with the I-129 petition.

How Do You Apply For An H-1B Visa?

The application process for an H-1B visa consists of 3 steps:

1. The employer submits the LCA to the United States Department of Labor (DOL) for certification. The employer must apply for and receive DOL certification of an LCA. (Only available for specialty occupations and fashion models)
2. The employer completes and submits Form I-129 to USCIS. Specialty jobs and fashion models require the DOL certified LCA to be submitted with this form.
3. Workers outside of the US must apply for admission once the I-129 has been approved. The H-1B worker can apply for the H-1B visa through the Department of State (DOS) at a US embassy or consulate abroad. 

Regardless of whether the worker is required to have a visa, the worker must apply for admission to the US under the H-1B classification through Customs and Border Protection (CBP).

What Is The Labor Condition Application (LCA) Process?

Employers or agents of professionals with specialty jobs or fashion models must obtain an LCA certificate from the DOL. Included in this application are several statements, violations of which may result in fines, sponsorship bans, and other penalties. The application requires the employer to:

• Pay the H-1B worker a wage that is not less than the wage paid to similarly qualified workers. 
• Provide the worker with necessary working conditions that will not adversely affect other workers in similar jobs.
• At the time of the labor conditional application, you must not be in any strike or lockout in the workplace.
• To have given a notice of conditional employment processing to a DOL representative for union bargaining or displayed at the place of business. 

What Documents Do I Need To Apply For The H-1B Visa?

Both the employee and their employer need to have the following documents to apply for the H-1B visa:

Documentation Required By The Alien Worker

• Copy of passport, valid visa and Form I-94, arrival/departure record (if you received an I-94).
• Birth Certificate.
• Copies of university academic records. 
• List of classes received with grades.
• Copy of the “curriculum vitae”.
• Copy of any educational certificate or diploma.
• Copy of any application for the H-1B visa previously made before USCIS.
• Letters of recommendations. These can be from:
  • The current employer.
  • A previous employer.
  • Previous instructors or teachers.

Documentation Required By The Sponsoring Employer

• Sponsorship letter with job offer. You must include the position and salary offered.
• A job description listing activities and responsibilities with the minimum experience and education required for the job.
• Copies of tax returns or financial statements showing the ability to pay the employee the salary offered for the position.
• Address, telephone, fax numbers and emails of each of the company officials who were involved in the H-1B visa petition.
• Name and position of the direct supervisor.
• Tax identification number of the sponsoring employer.
• Description of the sponsoring company and the start date of its commercial activities.
• Number of current employees in the sponsoring company.
• Number of current employees at the sponsoring company with H-1B visas.
• Copy of articles of incorporation of the registered company.
• Marketing material describing the employer and their business. 

How Long Can I Remain In The United States On An H-1B Visa?

Specialty occupations or fashion models on an H-1B visa may be admitted to the US for a period of up to 3 years. This term can be extended, but generally cannot be extended beyond 6 years. However, certain exceptions may apply under sections 104(c) and 106(a) of the US Competition Act.

Can I Change Employers Under The H-1B Visa?

It is possible to change employers with the H-1B visa and there is no numerical limitation on transfers from an H-1B visa for individuals who can apply. However, there are validity periods for it. 

Can I Start Working With My New Employer Before My H-1B Visa Transfer Is Complete?

The law allows the holder of an H-1B visa to start working with his new employer immediately, provided that they have submitted the application for the transfer of the H-1B visa. This legislation allows to work without having to wait until the application is approved.

How Much Time Do I Have To Leave The US When My H-1B Visa Expires?

Unlike other visas, such as the F-1 student visa that allows a period of several days to leave the country, H-1B visas do not have these periods. Therefore, H-1B workers must depart the United States immediately upon expiration of their visa or termination of employment. 

What Is The Maximum Number Of H-1B Visas Issued Per Year?

The maximum number of H-1B visas issued per fiscal year is 65,000 visas. However, there is an additional 20,000 visas exempt from this limit for those foreign nationals with a bachelor’s degree or higher who studied at a US institution.

Additionally, H-1B workers who have been solicited or employed by a higher educational institution or its affiliates, or related to nonprofit entities, or nonprofit or government scientific research organizations, are exempt from this limit. 

You can obtain more information regarding the limits of this visa on the USCIS website.

Can Family Members Of H-1B Visa Holders Accompany Them?

Spouses and unmarried children under the age of 21 may apply for admission to the US under H-4 nonimmigrant classification. 

As of 2015, certain H-4 spouses who are dependents of the H-1B holder may file a Form I-765, Application for Employment Authorization, as long as the H-1B visa holders have initiated the adjustment of status process to obtain the Green Card based on employment. 

Are you a relative of an American? You may be eligible for a US family based immigration relative petition and be able to get that much-coveted Green Card.

How To Switch From An H-1B Visa To A Green Card?

The process to obtain the Green Card is as follows:

1. The employer requests the PERM labor certification from the alien worker.
2. The employer files with USCIS Form I-140, Immigrant Petition for Immigrant Worker.
3. The foreign worker files with USCIS Form I-485, Application to Register Permanent Residence or Adjust Status.

Did you become a permanent resident? Over the years you may be eligible for US citizenship. But beware, there are certain mistakes to avoid when completing the N-400 naturalization application. In our respective blogs you will find extensive information on these topics.

Frequently Asked Questions About The H-1B Visa

Do You Need Help Applying For The H-1B Visa? Curbelo Law Can Help You

Due to the highly competitive nature of the H-1B visa and its limited annual quota, it is important to get the professional assistance of an immigration attorney to help you increase your chances of being successful in obtaining this visa.

The Curbelo Law firm has the prestige of having attorney Carolina T. Curbelo at the head of this firm. With more than 10 years of experience, the firm has been able to help hundreds of foreign workers understand what the United States H-1B visas are and obtain one. 

Now that you know what the H-1B visas are, we invite you to contact the firm to start your process for this visa. You can call us, send us an e-mail or book a private consultation at our office in Ridgewood, NJ, United States.