H1B Visa Process

The H1B visa process, also referred to as a “work visa to USA,” is a means of bringing foreign-born professionals to the United States temporarily; this is one of the most used immigration processes due to the many large companies operating worldwide. An individual cannot apply for such status on his or her own. It is the employer’s responsibility to file the H1B visa petition with the US Immigration Department.

H1B Eligibility

  • The H1B visa is applicable to those working in a specialty occupation that requires specific knowledge in that area. However, it is also applicable to all companies wishing to temporarily bring certain higher-level executives working in international offices to the U.S., usually to assist on a project, or to help expand the department with the intent of eventually remaining with the company in its U.S.-based location.
  • The individual must have a bachelor’s degree or equivalent.
  • An interview must take place at a U.S. consulate or embassy office.
  • If the interview is successful, the individual will have the H1B visa stamped on his or her passport.

Advantages of H1B Status

There are many advantages of having an H1B visa, some of which includes the fact that someone can work and live in the United States as an immigrant without having to worry about obtaining additional green cards or going through other immigration proceedings. Further, the H1B process is a lot quicker than other immigration processes. With an H1B visa, you can travel out of the United States until the visa expires without having to worry about being stopped by immigration enforcement at airports when traveling. What’s more, you can obtain an H4 visa for a family member; therefore, you and your family can travel in and out of the U.S. with no worries. Another significant advantage to the H1B is the dual intent doctrine. This doctrine states that a person can come into the U.S. temporarily and lawfully seeking permanent residence; therefore, while the H1B visa remains in effect, the individual can also apply for permanent U.S. citizenship without affecting the status of the H1B. However, an H1B does in fact generally require that the individual prove he or she has a foreign-based residence, and that the initial intent of the H1B visa was to temporarily work in the United States and not to simply abuse the process in order to more easily obtain permanent citizenship.

Important Facts

  • Someone can work in the U.S. for a total of six years with an H1B; however, an extension may be granted in certain circumstances.
  • A petition won’t be granted for more than three years
  • If the individual is eligible for a longer period of employment, an extension may be granted allowing the individual to remain in the U.S. for a longer period of time
  • If an individual works within the Defense Department, he or she can stay in the U.S. for a total of 10 years.
  • The H1B process is not granted to self-employed professionals; however, contract employees are eligible for H1B status.
  • Even while someone’s green card application is in pending status, the H1B holder can travel in and out of the U.S. while having no issues.
  • Generally, those with H1B visas are required to maintain a foreign residence; however, H1B specialty workers are not required to have a foreign residence.
  • If an individual intends to work for multiple employers, he or she must obtain H1B visas for every employer.
  • An employer is responsible for return transportation costs for an employee who is terminated prior to the end of the employment contract.
  • H1B visa professionals can buy real estate property in the U.S. as well as invest in stocks, bonds, mutual funds, or other related products.

The Application

H1B visas can be filed in one of two ways: H1B regular processing or H1B premium processing. Regardless, the employer must be the one to file the application on behalf of the employee. The difference between these two methods is that the premium processing is a much quicker method to obtaining the H1B visa. However, there is an additional fee of $1,225. Using this method can produce a turnaround of roughly 15 days whereas using the regular processing method can take between 1-6 months. However, if the employer can show that there is a specific immediate need for the employee, then the form may be approved more quickly.

Offer and Acceptance Process

  • The employer can be an individual, partnership, or corporation
  • The application must be specific to a particular job. It cannot be a broad position.
  • The visa is applicable to that specific employer who filed the petition.
  • United States Citizens and Immigration Enforcement (USCIS) requires that the employer provide a letter identifying the position held, responsibilities of the position, dates of employment, and names of the employee’s supervisor(s) and colleagues.
  • The employer is required to pay the employee a certain wage, based on comparing the prevailing wage and actual wage. The wage provided must be the higher of the two wages.
  • The prevailing wage is provided by the State Employment Security Agency. The employer will fill out a form indicating the position held, job duties, level of skill and educational background of the individual.
  • The actual wage will be decided by looking at the salary of other employees working in a similar or same position with a similar level of skill and educational background.
  • The employer also must file the Labor Certification Application (LCA), which identifies information regarding the sponsoring employer. This form provides that the employer agrees to the wage rate.
  • Employers must provide its H1B employees with all the benefits provided to all other workers, including health, life, and dental benefits, retirement benefits, stock options, and bonuses.

If you would like to learn more about the H1B process, or if you need legal help regarding the process, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.