United States H-1B Visa for Specialty Occupations

Written by Mike Arnold Moderated by Oleksandra Dosii

Mike Arnold

Mike is a freelance writer with eight years of experience and a love for travel, all things business, tabletop games and green tea.

Oleksandra Dosii

Oleksandra is a dedicated marketer with a passion for growing HR-tech products. She believes content marketing is about delivering high-quality content that provides value—not just generating leads. Since 2016, Oleksandra has been involved in tech talent relocation.

Last update: September 13, 2024

Next update: Scheduled for February 1, 2025

The United States H-1B visa is a highly sought-after pathway for skilled professionals worldwide to contribute their expertise to the American economy.

Designed for specialised occupations requiring a bachelor's degree or equivalent, this visa enables U.S. employers to temporarily employ foreign talent in fields such as engineering, computer science, medicine, and more.

However, with an annual cap of 85,000 visas, competition is fierce, but for those with the right qualifications and a U.S. job offer, the H-1B can be a gateway to a rewarding career and potential permanent residency in the United States.

 

What are the eligibility criteria for the United States H-1B visa?

The H-1B visa allows U.S. employers to temporarily hire foreign workers in specialised occupations. Here's a breakdown of the main eligibility criteria for the different H-1B categories:

1. H-1B specialty occupations

• Job requirements:
  • The job must require theoretical and practical application of specialised knowledge.
  • A bachelor's degree or higher (or its equivalent) is typically the minimum requirement.
  • The position itself must be complex or unique, requiring a degree-level education.
• Your qualifications:
  • You must hold a U.S. or foreign bachelor's degree (or equivalent) relevant to the job.
  • Or, you possess a licence/certification allowing you to practise the speciality occupation in the intended state.
  • Or, you have equivalent education, training, and/or experience demonstrating expertise in the field.
• Additional requirement:
  • Your employer must file a Labor Condition Application (LCA) with the Department of Labor.

2. H-1B2 DOD researcher and development project worker

• Job requirements:
  • The job involves working on a specific DOD research or development project.
  • A bachelor's degree or higher (or its equivalent) is required.
• Your qualifications:
  • Same as for H-1B Specialty Occupations (degree, licence, or equivalent experience).
• Additional requirement:
  • No LCA is required, but a verification letter from the DOD project manager is required.

3. H-1B3 fashion model

• Job requirements:
  • The position requires a fashion model of distinguished merit and ability.
• Your qualifications:
  • You must be a fashion model with demonstrated prominence in the field.
• Additional requirement:
  • Your employer must file an LCA with the Department of Labor.

Remember:

• This is a simplified overview. Consult official USCIS resources or an immigration attorney for detailed information and specific case assessments.
• The H-1B visa process is competitive. Meeting the eligibility criteria doesn't guarantee visa approval.

What is the H-1B cap and registration process?

The H-1B visa is subject to an annual numerical limit, or "cap," on the number of new visas issued each fiscal year, which started back in 2020. This means you'll need to apply and await the decision to be made within the "cap season."

The “cap season” is the period in which the USCIS selects and registers applicants for the next H-1B visa allowance.

As of September 2024, the next registration will run from mid-March 2025 for roughly 2-3 weeks.

• Annual cap: The current H-1B cap is set at 65,000 visas per fiscal year.
• Advanced degree exemption: An additional 20,000 visas are available for beneficiaries who hold a master's degree or higher from a U.S. institution of higher education.
• Cap-exempt employers: Certain employers, such as institutions of higher education, nonprofit research organisations, and government research organisations, are exempt from the H-1B cap.

Since 2020, H-1B cap-subject petitions require a preliminary electronic registration. This means:

• Registration is essential: Before filing a full H-1B petition, your employer must first register you electronically with USCIS during a designated registration period.
• Selection is key: Only if your registration is selected in the lottery can your employer then proceed to file a complete H-1B petition on your behalf.
• Exceptions exist: There are certain situations where the registration requirement may be waived.

For detailed information on the H-1B registration process, please refer to the official USCIS H-1B Electronic Registration Process webpage.

What is the H-1B petition filing process?

Focusing on the petition filing process itself, there are three main steps to follow that are carried out by your U.S. employer, the Department of Labor, and U.S. Citizenship and Immigration Services (USCIS).

Step 1: LCA certification (specialty occupation and fashion models only)

• Your prospective employer must first file a Labor Condition Application (LCA) with the DOL.
• The LCA requires the employer to attest to various labour conditions, such as paying the prevailing wage or actual wage (whichever is higher) and providing working conditions that won't adversely affect U.S. workers.
• Once certified by the DOL, the LCA is valid for the specific H-1B petition and beneficiary named in the application.

Step 2: Form I-129 submission

• Your employer then files Form I-129, Petition for a Nonimmigrant Worker, with USCIS.
• The petition must be filed at the correct USCIS lockbox facility or online, depending on the specific circumstances of your case.
• The DOL-certified LCA must be included with Form I-129 for speciality occupation and fashion model petitions.
• Additional supporting documents, such as evidence of your qualifications and the employer's ability to pay the offered wage, will also be required.

Step 3: Visa application and admission

• Once USCIS approves the Form I-129 petition, you can apply for an H-1B visa at a U.S. embassy or consulate abroad if you are outside the United States and require a visa to enter.
• Regardless of whether you need a visa, you must apply for admission to the United States in H-1B classification at a U.S. Customs and Border Protection (CBP) port of entry.

Important note: The H-1B petition filing process has recently undergone changes. As of April 1, 2024, all paper-filed Form I-129 petitions requesting H-1B classification must be filed at a USCIS lockbox facility. Online filing is also available for certain H-1B petitions. Consult the USCIS website for the latest filing instructions and addresses.

Labor Condition Application (LCA)

The Labor Condition Application (LCA) is a crucial component of the H-1B visa petition process for speciality occupations and distinguished fashion model categories.

It serves as a safeguard for both U.S. and foreign workers, ensuring that the H-1B program doesn't adversely impact the U.S. labour market.

Required attestations

Your prospective employer must submit the LCA to the Department of Labor (DOL) and attest to the following labour conditions:

1. Wage level: The employer will pay you a wage that is at least equal to the prevailing wage for the occupation in the area of intended employment or the actual wage paid to other employees with similar experience and qualifications, whichever is higher. This ensures you are not paid less than the market rate for your position.
2. Working conditions: The employer will provide working conditions that will not adversely affect the working conditions of similarly employed U.S. workers. This includes aspects such as working hours, benefits, and workplace safety.
3. No strike or lockout: At the time of filing the LCA, there is no strike, lockout, or work stoppage at the place of employment. This protects you from being hired as a replacement worker during a labour dispute.
4. Notice of filing: The employer has provided notice of the LCA filing to the employees' bargaining representative or, if there is no bargaining representative, has posted the notice at the place of employment. This ensures transparency and allows U.S. workers to be aware of the H-1B hiring.

Note: if your employer fails to follow the LCA attestations, they may face penalties, including fines, debarment from sponsoring future H-1B or other immigration petitions, and other sanctions.

How much does the H-1B visa cost?

The H-1B visa, while highly sought after, does come with associated costs for both employers and employees.

On average, these fees can total around $2,500. The primary expense is the basic filing fee of $780, covering the Petition for a Nonimmigrant Worker (Form I-129). This is mandatory and paid by the employer.

Beyond this, additional fees come into play.

The Fraud Prevention and Detection Fee ($500) helps safeguard against fraudulent applications.

The American Competitiveness and Workforce Improvement Act (ACWIA) Fee ranges from $750 to $1,500 depending on the employer's size, supporting U.S. worker training programs.

A newer fee, the Asylum Program Fee ($600), is also required.

If you’re looking to get your case reviewed within 15 days upon submitting the application, your employer can opt to pay for Premium Processing ($2,805).

Generally, the employer covers most fees, but the employee may need to handle costs like visa stamping fees at the U.S. consulate. These can include the visa application fee ($190) and a potential reciprocity fee, varying by country.

Remember, most H1B fees are non-refundable, even if the petition is denied.

What is the period of stay under the H-1B visa?

The initial period of stay granted under an H-1B visa for speciality occupations is typically up to three years.

This aims to allow you enough time to establish yourself in your new role, contribute your skills to the U.S. workforce, and experience life in the United States.

You can apply for an extension:

• If your employment continues and you meet the eligibility criteria, you can apply for extensions of your H-1B status.
• Generally, extensions can be granted in increments of up to three years, with the total period of stay not exceeding six years.

Exceptions to the six-year limit

In certain circumstances, you may be eligible for an H-1B extension beyond the standard six-year limit.

These exceptions include:

• Pending green card: If you are the beneficiary of an approved immigrant visa petition (Form I-140) under certain employment-based categories (EB-1, EB-2, or EB-3) and are waiting for your priority date to become current, you may be eligible for H-1B extensions in three-year increments until a final decision is made on your green card application.
• PERM labor certification or I-140 filing: If at least 365 days have passed since a PERM labour certification or an I-140 immigrant visa petition was filed on your behalf, you may be eligible for H-1B extensions in one-year increments until a final decision is made on your green card application.

Employer's responsibility for return transportation

• If your employer terminates your employment before the end of your authorised stay, they are generally responsible for the reasonable costs of your return transportation to your home country.
• However, this responsibility does not apply if you voluntarily resign from your position.

Taking time to understand the potential duration of your stay and the possibilities for extensions is essential for planning your career and life in the United States.

In most cases, it's advisable to consult with a visa consultant to explore your options and ensure you maintain your legal status throughout your time in the U.S.

Changing employers or employment terms

The H-1B visa offers a degree of flexibility, allowing you to change employers or modify your employment terms with the same employer under certain conditions.

Changing employers (portability)

• New employment start date: If you're changing H-1B employers, you can start working for the new employer as soon as they file a new, non-frivolous H-1B petition on your behalf. Alternatively, you can start on the requested start date on the new petition, whichever is later.
• Eligibility for portability: To be eligible for H-1B portability, you must:
  • Have maintained valid H-1B status since your last admission to the United States
  • Have a new employer who files a new, non-frivolous H-1B petition on your behalf before your current H-1B period of authorised stay expires.
• Employment authorization during processing: While the new H-1B petition is pending with USCIS, your employment is authorised based on the portability provisions.
• Outcome of the new petition:
  • Approval: If the new petition is approved, you can continue working for the new employer for the period specified in the approval notice.
  • Denial: If the new petition is denied, your authorisation to work for the new employer ceases. However, you may continue working for your previous employer if your prior period of authorised employment is still valid.
• Termination of employment: If you are laid off, fired, or quit your job, you typically have a grace period of up to 60 consecutive days or until the end of your authorised validity period, whichever is shorter, to find new employment, change your status, or depart the United States.

Changing employment terms with the same employer

• Filing Form I-129: If you want to change your employment terms, such as your job title, duties, or work location, with your current H-1B employer, they must file a new Form I-129 petition on your behalf.
• Work authorization: Once the petition is filed, you are authorised to work according to the new or changed employment terms, either immediately upon filing or as of the requested start date on the petition, whichever is later.

Understanding the rules and procedures for changing employers or modifying employment terms is crucial for maintaining your H-1B status and ensuring continued work authorisation in the United States.

Family of H-1B visa holders

The H-1B visa program recognises the importance of family unity, allowing your spouse and unmarried children under 21 years of age to join you in the United States under the H-1B visa.

They can apply for admission in the H-4 nonimmigrant classification, which grants them dependent status and the ability to reside in the U.S. while they work on their H-1B visa. This is how it breaks down:

H-4 status for dependents:

• Your spouse and unmarried children under 21 are eligible for H-4 dependent visas.
• H-4 status allows them to reside in the U.S. while you work on your H-1B visa.
• H-4 dependents can attend school in the U.S.

H-4 Employment uthorization (EAD):

• Your spouse may be eligible to work in the U.S. under certain conditions.
• Eligibility: You (the H-1B holder) must have initiated the process towards employment-based permanent residency (typically an approved I-140 or eligibility to file for adjustment of status).
• Application: If eligible, your spouse can file for an Employment Authorization Document (EAD).

Remember: H-4 status and EAD have specific requirements and limitations. Consult an immigration consultant for personalised guidance to ensure compliance and maintain legal status.

Other important things to know

In addition to the core eligibility, application process, and family-related aspects of the H-1B visa, be aware of the following:

H-1B licensing

• State or local licence: Some professions require an H-1B beneficiary to hold a state or local licence authorising them to practise their speciality occupation fully.
• Obtain licence before approval: If such a licence is required in your state of intended employment, you generally must have that licence before your H-1B petition can be approved.
• Request for evidence: If USCIS determines that a licence is required for your occupation but there's no evidence of you holding one, they will likely issue a request for evidence (RFE) asking you to provide proof of licensure.

Online filing

• Available for certain petitions: USCIS offers online filing for certain H-1B petitions, including non-cap H-1B petitions and H-1B cap petitions for beneficiaries whose registrations have been selected.
• Associated forms: You can also file related forms, such as Form I-907 Request for Premium Processing Service, online.
• Benefits of online filing: Online filing offers advantages such as faster processing times, real-time case status updates, and the ability to submit electronic signatures.

USCIS organisational accounts

• Collaboration and preparation: USCIS has introduced organisational accounts that allow multiple people within a company and their legal representatives to collaborate and prepare H-1B registrations, petitions, and associated requests for premium processing.
• Streamlined process: These accounts can streamline the H-1B filing process by facilitating communication and document sharing among authorised users.

Talk to a visa consultant

The complex eligibility criteria, the annual cap, and the intricate petition filing process can make navigating the H-1B landscape a daunting task.

An experienced visa consultant can help optimise every part of the process to maximise your chances of success. From eligibility assessment to petition filing and potential challenges, their expertise ensures your application is optimised for approval.

Need visa assistance/immigration advice?

Fill out this form

Shoot us an email with your inquiry at [email protected].