What is an H-1B Visa?

An H-1B visa allows a foreign worker in a specialized field to emigrate and work in the United States temporarily. The U.S. is always looking for workers with special skills. This visa allows them to work in their field for a temporarily. H-1B visas last for six years. Extensions are available if the visa holder is trying to become a resident and receive a Green Card based on employment. The ability to apply for a Green Card while holding an H-1B visa is known as dual intent.

The U.S. limits the number of H-1B visas issued each year. Only 85,000 are awarded each fiscal year. Of these, 20,000 are set aside for people who have a master’s degree or higher.

Basic H-1B Information

There is some basic information you should know about these visas you should know before you apply.

  • You need a bachelor’s degree for a specialty H-1B application.

  • Your employer needs to get a labor condition application.

  • If you have been given an H-1B visa in the past, you will not be held to number limitations.

  • Anyone who has an H-1B visa can use portability provisions in the American Competitiveness in the 21st Century Act to find a new employer.

  • If you have a spouse or children, they can live in the US with H-4 status but cannot work.

H-1B Eligibility Requirements

Visas are granted based on a points system. You need 12 points to be eligible for an H-1B visa. Points can be earned in several ways. For every year you spent in college or at a university, you earn one point. A year of work experience also equals one point. Become eligible by completing one of the following:

  • A Master’s Degree, Bachelor’s Degree, or the equivalent

  • Work experience totaling 12 years

  • A combination of schooling and work

Why You Should Apply for an H-1B Visa

There are many reasons to apply for an H-1B visa. If you get an H-1B Visa, you can work for a U.S. employer. This is a tremendous opportunity for foreign workers. You can also usually bring your family with you. Applying for an H-1B is quicker than applying for a Green Card. If you qualify for an H-1B visa, you can enter the United States sooner than with a Green Card.

Disadvantages of an H-1B Visa

There are also disadvantages to using an H-1B visa. First, there is a yearly visa cap. Only 85,000 are given each year, and 65,000 of those are for specialty overseas workers. Another 20,000 are for workers with advanced degrees. This limit causes many people to apply for different visa types. A few different visas include L-1B visas, L-1A, E-2 Treaty Investor Visa, E-1 Treaty Trader visa, and E-3 for Australians.

Your employer should apply for your visa six months before your anticipate start date. April 2, 2017, is the first day you can apply to be included in the 2018 visa cap. U.S. Citizenship and Immigration Services (USCIS) will then include your application in the H-1B visa lottery.

Specialty Occupations and Employee Qualifications

H-1B visas are given to workers in specialized jobs. This includes fields like medicine, law, education, engineering, and biotechnology. For your job to qualify as a specialty occupation, it must meet specific standards.

  • A bachelor’s degree or higher is required for the field.

  • Your job is so difficult that you need a degree for a full understanding.

  • Employers in your field require degrees.

  • Your field involves specialized knowledge that can only be learned in a degree.

You must also meet these requirements to accept a special job as an immigrant in the US.

  • You have earned your field-specific degree from an accredited school.

  • You have an equivalent foreign degree.

  • You are licensed to work in your field.

  • You have training or experience that is equal to a degree.

You can apply for an H2B visa or an L-1 visa if you don’t meet these requirements. An L-B visa allows foreign workers to transfer to a U.S. job with the same company for five years.

H-1B Visa Lengths

H-1B visas are not permanent. They eventually expire. Your initial visa lasts for three years. It can then be extended to six years, the maximum length of an H-1B visa. Before your visa expires you can apply for a permanent resident Green Card. If your visa does expire, you have to live outside of the country for a year before reapplying. Other ways to extend your visa length include:

  • Submit an I-140 immigrant petition before your fifth visa year and you can renew every one to three years until your petition has been considered.

  • If your I-140 petition is approved but you can’t yet receive your Green Card, you can extend your visa by three years.

  • If you work for the defense department, your visa can last up to ten years.

Family Members and H-1B Visas

You can bring certain family members to the U.S. with you if you get an H-1B visa. Your spouse and children under 21 years of age are eligible. They are considered H-4 visa holders. Your family can stay in the U.S. as long as your visa is active. H-4 visas are limited. Family members with H-4 visas can’t work, but they can go to school, open a bank account, or get a driver’s license.

Worker Protections for H-1B Holders

The U.S. Labor Department protects visa holders from unfair treatment. Your boss must submit a labor condition application (LCA) to the Department of Labor (DOL). Your LCA is reviewed to make sure your wages are fair. It is also used to prevent displacement of US workers.

File form WH-4 with the DOL Wage and Hour Division if you have not been paid fairly. Complaints about employer fraud go to the Office of the Inspector General.

H-1B Visa Statistics

Hundreds of thousands of people apply for H-1B visas each year. Here are some statistics about 2015 H-1B applications.

  • 348,669 applications were filed in 2015. Of those, 275,317 were approved.

  • 108,531 approvals were for new workers, and 606 were for current workers. Employer transfers made up 50,504.

  • 25,427 approvals were for companies with less than 25 workers. 175,248 were for businesses with more than 26 workers.

  • 16,112 were for educational institutions; 8,589 were for non-profit organizations; 4,526 were for research organizations; 2,485 were for primary and secondary schools; and 7,670 were for non-profit groups providing clinical training.

Statistics for the 2014 fiscal year:

  • 318,857 petitions were approved in 2014.

  • 124,326 were for new workers. 68,390 were for workers from outside the US. 55,936 were for workers inside the country. 191,531 were for continued employment.

  • 220,286 or 69.7 percent of the approved petitions were for India-born workers. 26,393 (8.4 percent) were for workers born in China.

  • For 2014, the computer field led with the most approved petitions, 203,425 (64.5 percent).

  • The median salary for an H-1B holder in 2014 was $75,000. This was up from the 2012 median of $70,000.

  • Bachelor’s degree holders made up 45 percent of petitions, Master’s degrees were 43 percent, Doctorates were eight percent, and four percent were professional degrees.

There are generally three times more petitions certified by the DOL than get approved by the USCIS.

Visa Cap

H-1B visas petitions can be filed on April 1st for the following fiscal year. For example, petitions filed in 2017 will be for 2018. The first day you are eligible to work if your receive your visa is October 1st. Filing as soon as possible is important, as visa are granted first come, first served.

Some petitions are subject to a cap. 65,000 visas are reserved for bachelor’s degree holders. This is known as the regular cap. Another 20,000 are reserved for advanced degree holders. When more petitions are filed than there are available visas in five business days, the USCIS holds a lottery. Petitions are selected at random by a computer until each cap is reached. Workers from Singapore and Chile are exempt from the cap.

It is possible to be exempt from the visa cap. Potential exemptions include:

  • Submission of an amended H-1B petition.

  • You are renewing or extending your H-1B visa.

  • You have submitted an H-1B transfer visas.

  • Your employer is a non-profit organization associated with a higher education institution and you are enrolled in the jointly managed program.

  • Your employer is a nonprofit or government research organization.

  • You, a Foreign National Beneficiary, have earned an H-1B visa in the past six years and have not left the country for more than a year.

In 2016, the 2017 regular cap of 65,000 was reached in five days. The 20,000 advanced cap was also reached in five days. 236,000 total petitions were filed for fiscal year 2017. In 2014 and 2015, both caps were reached in five days. In 2013, the regular cap was reached in 72 days and the advanced cap in 68. In 2012, the total cap of 85,000 was reached in 236 days. The total cap was reached in 2011 in 301 days.

Extending Your H-1B Visa

As mentioned, visas are granted for three years and can be extended three years for a total of six years. After this six years, you must wait a full year before applying for a new visa. However, there are certain exceptions.

The 240-day rule lets you work for 240 days while you are waiting for an extension, a renewal, or a Green Card. If the USCIS denies your request, you must stop work immediately.

You can also extend your visa beyond six years if you:

  • Have submitted an I-140 petition that has been approved

  • Are the beneficiary of an I-140 petition or PERM petition filed more than a year ago

  • Are regaining time you spent outside of the US while your visa was active

If you have a pending PERM or I-140 petition, your visa can be extended for a year. This extension lasts until either petition expires, is revoked, is denied, or you earn or are denied residency. You must be the named person on the visa to receive this extension.

If your I-140 petition is approved, you get a three-year extension. You do not need to hold an H-1B visa to file for this extension and you can file in advance.

Anyone who has an H-1B visa stamped in their passport that has expired within the last six years can apply for a new H-1B visa that is exempt from the annual cap.

Both you and your employer need to file the right documents for an extension or renewal. Your employer must file:

  • A copy of your job offer letter that includes your title and salary signed by both you and your employer

  • A description of your job

  • Company marketing materials or brochures

  • A recent company financial statement, business plan, or annual report

  • If the company is incorporated, the Articles of Incorporation must be included.

Documents you must provide include:

  • Copies of your I-94s, US visas, and 1-797 approvals

  • University transcripts and degrees

  • An evaluation of your equivalent foreign degree, if applicable

  • Proof of experience from previous employers

  • Your resume

  • Proof of employment, which can include three recent paychecks or a letter from your employer

Current H-1B Visa Fees

It’s important to understand fees when applying for an H-1B visa. Your employer is responsible for paying all fees except for third-party costs. The fees necessary to receive your H-1B visa include:

  • A filing fee of $460 for your I-129 petition. This fee also applies to amended petitions, renewals, and transfers.

  • New visa petitions and transfer petitions require $500 for fraud detection and prevention.

  • If your employer has more than 50 employees, they need to pay a $4,000 fee. This applies to both H-1B and L-1 visas. This is called the Public Law fee.

  • Employers with 1 to 25 employees must pay $750 under the American Competitiveness and Workforce Improvement Act. The fee for employers with more than 26 employees is $1500. Educational institutions, nonprofits, and government research organizations are exempt from these fees.

  • You can also pay an optional premium fee if you want to speed up the process. The cost for premium processing is $1,225. You must complete the I-907 form. This guarantees a fifteen-day processing period. Either you or your employer can pay this fee. Premium processing does not improve your chances for approval. Premium processing is suspended for 2018 petitions as of March 3, 2017.

Some fees have increased in the past year. The application fee increased from $325 to $460. The Public Law fee increased from $2,000 to $4,000. If your petition is denied, you won't get a refund. You may be able to get a refund if your petition was certified but not selected in the lottery. It is also possible to get a refund if:

  • The requested fees were more than necessary.

  • You paid for premium processing but processing took longer than fifteen days.

  • The USCIS made you fill out unnecessary forms and asked for a fee.

There are very limited options for paying your visa fees. The I-129 form states payments must accompany the petition via a check or money order. Every fee needs its own money order.

Several fees are needed to extend your visa. First, you need to pay the filing fee for a new I-129 petition. This includes paying for premium processing. Initial fees like the Public Law fee, ACWIA fee, and Anti-Fraud fees only need to be paid once. This is per beneficiary and per employer.

H1-B Visa Dates

It’s important that you keep certain important H1-B dates in mind. Some of these dates include:

  • April 1st: This is the traditional first day that the USCIS accepts petitions. However, since April 1st is a Saturday this year, applications will not start being processed until April 3rd.
  • April 7th: This is the day it’s likely the USCIS will stop accepting applications. Thousands of applications come in each year, which means the lottery is almost never open for more than five business days.
  • October 1st: This is the first day you would be eligible to work if your application was filed on April 1st. Applications cannot be filed more than six months in advance of your projected work date. In addition, the end date on your application is the same date provided in your Labor Condition Application.

Frequently Asked Questions

  • When Does the 2018 Application Session Start?

The U.S. begins accepting applications for 2018 on April 3, 2017. The application session normally starts on the first of April. However, April 1st is a Sunday this year. By filing on April 3rd, you are eligible to work on October 1st, the beginning of the 2018 fiscal year.

  • What are the 2018 Caps?

As in past years, the regular cap is 65,000 and the Master’s Degree cap is 20,000. This equals 85,000 available visas. 6,800 visas are reserved for workers from Singapore and Chile.

  • Will there Be a Lottery?

Most likely, there will be. Visa lotteries occur when petitions exceed the visa cap. This has happened the last four years. Expect a lottery in fiscal year 2017.

  • When Should I Start Planning to File

Right away. Those studying and about to graduate in the U.S. on an F1 visa should already be looking for an H-1B visa sponsor. Foreign workers should seek employment at a company with U.S. branches.

  • How Can I get a Sponsor?

If you are a student, you can get an H-1B Sponsor by getting an internship at a company. If you are a foreign worker planning a move to the US, you should research multinational companies looking to hire from abroad.

Get Help Applying for an H-1B Visa

If you are a company looking to file a petition for an H-1B visa for a future employee, you need help from an UpCounsel attorney. UpCounsel works to connect clients with experienced attorneys who offer great prices. We have lawyers that specialize in immigration law and can help you file your H-1B petition. Sign-up with UpCounsel today.