Key Takeaways:

  • H1B visas allow U.S. employers to hire foreign professionals in specialty roles.

  • Employers must cover sponsorship costs, which average around $5,000.

  • The H1B cap limits the number of visas, but some employers are exempt.

  • Prevailing wage requirements protect U.S. workers from wage undercutting.

  • H1B holders can pursue permanent residency due to the visa’s dual intent policy.

For any non-US professionals seeking to advance their career in the United States, the H1B visa sponsorship is a pathway that can help them obtain jobs in specialty occupations. Although temporary, the H1B visa is a non-immigrant visa that usually allows individuals to work in the United States for up to three years, with an option to extend to six years.  

However, the H1B visa is only granted to individuals who meet specific requirements. It also demands compliance from both employers and employees. Here’s everything you need to know about H1B sponsorship, from eligibility and costs to application procedures and limitations.

Eligibility Requirements for H1B Sponsorship

The H1B visa is not granted to any foreign professionals who wish to pursue a job in the United States. It is specifically designed to allow individuals who have specialized knowledge and experience in an industry to work in the U.S.  

In addition, only US-based employers can sponsor the H1B visa, and the burden of the costs of sponsorship falls on the employers. Below are detailed explanations about the eligibility requirements for H1B sponsorship. 

Job Requirements

As mentioned, the H1B visa is designated for specialty occupations, which means the job must require specialized knowledge and typically demands a minimum of a bachelor’s degree in a relevant field. 

For example, those who have a background in technology, engineering, healthcare, and finance may qualify for the H1B visa, provided they can prove to the United States Citizenship and Immigration Services (USCIS) that the job cannot be performed by someone without the required level of expertise that these foreign individuals have.

Employee Requirements

For an employee to be eligible for H1B sponsorship, they must hold the appropriate academic degree or equivalent experience in the field. If the individual’s qualifications stem from experience rather than formal education, they must be able to prove that the experience is equivalent to a bachelor’s degree in the relevant specialty. USCIS often assesses foreign credentials and may require an evaluation to ensure they meet U.S. educational standards.

Employer Requirements

Only U.S.-based employers can sponsor the H1B visas, meaning the company must have a verifiable U.S. address and be able to demonstrate a valid reason for hiring a foreign worker. Additionally, employers are legally responsible for filing and covering the application costs, a responsibility that cannot be transferred to the employee. This obligation ensures that foreign workers aren’t exploited financially during the visa process.

H1B Sponsorship Costs

Sponsoring an H1B visa involves multiple costs, typically averaging around $5,000, which includes filing fees and potential attorney fees. Here’s a breakdown:

  • Basic Filing Fee: A non-refundable fee of around $460 for processing the visa.

  • Fraud Prevention and Detection Fee: A one-time fee of $500, is required for first-time applicants and visa transfers.

  • American Competitiveness and Workforce Improvement Act (ACWIA) Fee: $750 for employers with 25 or fewer employees, or $1,500 for employers with more than 25 employees.

  • Premium Processing (Optional): For an additional $2,500, employers can expedite the processing time from several months to approximately 15 days.

It’s essential to note that the employer must cover these fees, as federal regulations prohibit passing the costs to the sponsored employee. However, employers can opt for regular processing, which can take several months, or pay for premium processing to receive a quicker decision.

The H1B Visa Cap and Exemptions

Each year, the H1B program has a cap of 65,000 visas, with an additional 20,000 reserved for individuals who have earned a U.S. master’s degree or higher. These limitations lead to an annual lottery, as the demand for H1B visas typically exceeds the available slots.

Some employers, however, are exempt from the H1B cap. For example, nonprofit research institutions, government research organizations, and universities may hire foreign workers without being subject to the cap. These exemptions benefit organizations in specialized fields by allowing them to secure global talent without competing in the lottery.

Wage and Labor Condition Application (LCA) Requirements

One major concern that arises when hiring foreign professionals is worker protection–it is important to make sure that the local workforce’s wages are not being impacted. 

To prevent wage undercutting and protect U.S. workers, employers sponsoring an H1B visa must meet the prevailing wage requirement. This rule mandates that foreign workers receive wages equivalent to or higher than those paid to U.S. workers in similar positions within the same geographic area. The Department of Labor certifies this wage through the Labor Condition Application (LCA), which the employer submits as part of the H1B application process.

By requiring an LCA, USCIS ensures that hiring foreign professionals won’t negatively impact the local workforce’s wage standards. This wage requirement reflects the U.S. commitment to fair employment practices, ensuring that the H1B program complements the American workforce rather than compromising it.

Benefits and Limitations of Sponsoring H1B Visas

H1B visa sponsorship comes with many benefits as well as drawbacks for both employees and employers alike.

Benefits for Employers

Sponsoring H1B visas allows U.S. employers to address skills shortages in critical areas by hiring foreign professionals with specialized knowledge. This diversity in the workforce brings unique perspectives and expertise that can enhance innovation and drive organizational success. Additionally, it opens doors for employers to compete in the global market by bringing in talent with cutting-edge skills and experience.

Benefits for Employees

For foreign professionals, the H1B visa provides the opportunity to work in the U.S. and gain valuable experience in their field. It also allows for “dual intent,” meaning H1B holders can apply for permanent residency (a green card) without jeopardizing their visa status. This dual intent makes the H1B an attractive option for foreign professionals who aspire to establish a long-term career in the U.S.

Limitations of the H1B Visa

Despite its benefits, the H1B visa comes with limitations. It is a temporary visa, valid for up to three years, with a maximum extension to six years. Additionally, the visa is employer-specific, meaning the holder can only work for the sponsoring employer. This restriction limits job mobility and may require additional H1B sponsorship if the employee intends to switch employers. Furthermore, H1B visa holders cannot engage in self-employment, restricting their entrepreneurial options.

Dual Intent Doctrine

A unique aspect of the H1B visa is its alignment with the “dual intent” doctrine, which allows visa holders to apply for permanent residency without affecting their nonimmigrant status. Most temporary visas require the applicant to prove an intent to return to their home country, but the H1B visa makes an exception, permitting holders to pursue a green card while working in the U.S. This dual intent feature is beneficial for individuals who envision a future in the U.S., as it facilitates a smooth transition from temporary to permanent residency.

H1B Transfer and Multiple Employers

H1B visa holders can change employers, but the new employer must file a fresh H1B petition. This process is commonly referred to as an “H1B transfer.” 

While the employee can begin working for the new employer upon filing the transfer petition, USCIS must approve the petition for the transfer to be completed. Importantly, the H1B cap does not apply to transfer cases, which simplifies the process for individuals seeking new employment.

In addition to this, H1B visa holders may work for multiple employers as long as each employer sponsors a separate H1B petition. This arrangement can be beneficial for individuals who wish to take on part-time roles or work across various fields. However, the additional employer must go through the same filing process as the primary employer, ensuring that each position meets the specialty occupation and wage requirements.

Final Thoughts

As you can see, the H1B visa sponsorship can help empower qualified, skilled foreign nationals to explore career opportunities in the United States without compromising opportunities for U.S. workers themselves. The laws and regulations around the H1B visa sponsorship provide benefits to both prospective job seekers who want to develop their careers as well as to employers who want to tap into a larger and more diverse talent pool.  

That being said, applying for the H1B visa requires familiarity with legal processes, and therefore it is strongly recommended to speak to an employment lawyer. You can reach out to UpCounsel’s valuable resources to get in touch with an employment lawyer and seek expert guidance.

Frequently Asked Questions

Can H1B visa holders switch employers, and what is the process? 

Yes, through an H1B transfer, allowing work with a new employer.

What is the difference between H1B regular processing and premium processing? 

Regular processing takes up to six months, while premium processing expedites it to 15 days for an additional fee.

What happens if an H1B application is denied? Can it be appealed or refiled? 

A denial can be appealed or, in some cases, refiled if circumstances change or additional evidence is available.