The H-1B visa as popularly known falls under the visa category of “H- 1B Specialty Occupations”. This is a temporary visa that enables foreign workers to work in the United States in a specialty occupation or as a fashion model of exceptional merit and ability. Most international students who work beyond their 1 year (Non-STEM degrees) or 3 years (STEM degrees) Optional Practical Training period change to this visa category if sponsored by the companies they are hired at.
What are the general requirements?
USCIS requires that the following be met before an organization petitions for an H-1B on behalf of its beneficiary.
For the job to qualify as a specialty occupation, it must meet one of the following criteria:
- Bachelor’s or higher degree or its equivalent is usually a minimum requirement.
- The degree requirement for the job is common to the industry or the job can only be performed by a degree holder due to its complexity.
- The employer normally requires a degree or its equivalent for the position.
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
For an individual to qualify to accept a job offer in a specialty occupation they must meet one of the following criteria:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university.
- Hold a foreign degree that is the equivalent of a U.S. bachelor’s or higher degree in the specialty occupation.
- Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
How long can I work on an H-1B in the US?
An H-1B nonimmigrant may be admitted to stay in the US for up to three years. This can be extended after it expires but cannot exceed a total of six years even though there may be some exceptions under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).
What is the H- 1B cap and which category of beneficiaries are exempted from the cap?
The H- 1B allows an annual numerical limit, which is known as “cap” of 65,000 visas each fiscal year. However, the following are categories of beneficiaries who are exempted from the 65,000 cap:
- The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree.
- Petitions filed on behalf of beneficiaries who are employed at institutions of higher education or their affiliates.
- Petitions filed on behalf of beneficiaries who are employed at nonprofit entities or nonprofit research organizations.
- Petitions filed on behalf of beneficiaries who are employed at government research organizations.
What happens if USCIS receives more than 20,000 petitions requesting an advanced
degree exemption during the first five business days when the H-1B application is
A lottery will be used to randomly select 20,000 advanced degree petitions before another lottery will be performed to select petitions under the regular cap. Petitions that are not selected under the advanced degree cap will be added to the lottery for the regular cap. This means every advanced degree holder has two chances of being selected for the H-1B visa.
When does my company file for the H-1B visa petition on my behalf?
The earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1.
What happens if I do not get a sponsor company before April 1?
International students who are unable to find jobs that can sponsor their H-1B visa before the April deadline still have chances of getting their H-1Bs petitioned for if they find jobs at institutions of higher education or their affiliates, nonprofit entities or nonprofit research organizations or governmental research organizations.
Can I file for a visa for my family residing outside the US?
The spouse of an H- 1B visa holder and their unmarried children under 21 years can apply for the H-4 nonimmigrant classification. The spouse will be unable to apply for an employment authorization under their visa category until the H- 1B visa holder starts the process for obtaining employment-based lawful permanent resident status.
Source: Department of Homeland Security