What is an H-1B Visa? — The Complete H-1B Guide on Requirements, Duration, Quotas, and more.

Posted by Rohit Mittal

Visas usually don’t dictate how you need to live your life or how you need to manage your career. Normally, you can get a visa in a foreign country and continue doing whatever you want in regards to life choices and career moves. The H-1B visa is no such visa, and requires both the employer and employee to meet specific requirements in order for the visa to be granted. Then, you must comply with these requirements during the duration of your visa to continue living in the country.

The H-1B visa is considered a non-immigrant visa and allows US companies to employ graduate level workers for professional level jobs that usually require at least a bachelor’s degree. If you never graduated from an accredited institution, you might be able to show degree equivalence through other approved qualifications like experience, certificates, training programs, or progressive increase in responsibility in relevant roles. These occupations usually require theoretical or technical expertise in areas including, but not limited to:

· Accounting

· Architecture

· Biotechnology

· Engineering

· Finance

· Mathematics

· Medicine and Health

· IT

· Science

· Education law

· Business specialties

· Arts

Regardless of the specialized area, for this visa classification their needs to be proof of the considerable skill you carry which would set you apart as an H-1B visa holder.

This visa sounds constraining because of its attempt to structure your life and the conditions it gives you to live in the US, however, when administered to the right person, it is actually one of the most efficient and convenient visas for a foreign national to seek. It can last anywhere from three to six years and grants an exception for maximum length of stay for certain circumstances

The Uniqueness of the H-1B Visa

The reason this visa is unique compared to other visas is because with an H-1B visa, both parties, a) the applicant for the visa, and b) the employer who is petitioning for the visa, need to meet specific criteria in order for the visa to be granted. Normally, it is not common for the requirements on both sides of a visa application to be so rigid — other visas require a petitioner to fit qualifications, but they are never as strict as with the H-1B visa. With the US H-1B visa, even the nature of the position is assessed and evaluated to prove it is an occupation specialized enough for a foreign national to be worthy of getting the visa. The position almost tries to show that “no one else could do this job except for this applicant.

Below we go over some criteria that you can go over to get a better understanding of what both parties need in order to successfully be granted an H-1B visa.

What Criteria Do I Have to Meet to Apply for an H-1B Visa?

If you are ready to apply for your H-1B Visa and feel ready to move your life to the United States, you must first make sure that you meet at least one of the following criteria in order to qualify for the H-1B visa:

1) In accordance with the specialty occupation you are applying for, you must have completed the respective requirement of a US Bachelor’s degree or higher, from an accredited college or university.

2) In accordance with the specific specialty occupation you are applying for, if you do not have a US degree, you must have a foreign degree equivalent (as it relates to the focus and knowledge required for the specialty occupation) to the US bachelor’s degree or higher from an accredited college or university.

3) You have the related experience that serves as an equivalent to the aforementioned degrees demonstrating your expertise in the specialty area through the education, training, or movement up in responsibility through the progression of specialized positions in the specialty area.

4) You have an unrestricted state license, registration, or certification that allows you to take on the specialty occupation in the state where you intend to work.

What Criteria Does the Specialty Position Have to Meet to be Eligible for the H-1B Visa?

You might have met one — or more than one — of the requirements listed above, but the occupation itself will be under scrutiny to determine if it is specialized enough in order for the H-1B to be issued. The position will pass the test if it meets at least one of these criteria:

1) The minimum entry requirement is that the position requires knowledge attained from a Bachelor’s degree or higher, or the equivalent in experience of such a degree.

2) The employer, in normal cases when hiring for this position, would require the respective required degree or its equivalent for the specialty occupation.

3) The position is so multifaceted in nature or specific in regards to what it requires that it can only be accomplished by an individual with a degree, or because it is common within the industry in which the position is found, for the individual to have a degree.

4) The specific responsibilities for the position is so unique and demanding in such particular ways that the knowledge required to accomplish the responsibilities can generally be done only by individuals who have attained a bachelor’s degree or higher.

The Labor Condition Application (LCA) as Part of the H-1B Visa Application

The Labor Condition Application is probably one of the most important pieces in determining whether or not you will be granted your H-1B visa. The LCA is required from the employer who is trying to sponsor you for your visa to legitimize itself as a qualified company able to sponsor someone for an H-1B visa. The LCA also checks to see if the job position meets the special requirements of a suitable position under the H-1B visa specialty occupation.

Most importantly, an LCA demonstrates that the prospective employer complies with expected wage and labor laws for the employee taking the specialty occupation in the area where the employer does business. This form ensures that employees, whether foreign nationals or Americans are treated fairly in the workplace and are paid their deserved wages, and received their deserved compensation. The form used to submit the application is the ETA Form 9035. The application needs to be approved by the United States Department of Labor Employment and Training Administration (DOLETA)’s Office of Foreign Labor Certification (OFLC).

The Labor Condition Application (LCA) requires that the employer provide:

· Job title, including the SOC code and title.

· Duration of the job position — maximum of 3 years

· Full time or part time position

· Location of the job position

· Salary offered for the position

· Prevailing wage for the same position in that area. (Market rate for the job position in your area)

How Many H-1B Visas Are Issued Every Year?

The H-1B visa does reach its cap, and does not allow for more than 65,000 visas per fiscal year. An additional 20,000 H-1B visas are available to foreign nationals that have a master’s degree or higher from a university in the US.

However, H-1B visas issuances can easily reach up to 100,000+ each year, depending on certain roll over or cap-exempt situations. For instance, excluded from the 65,000 allowances are all H-1B non-immigrants who work at, but not directly for, universities, nonprofit research facilities associated with universities, and government research facilities. Universities and certain entities can employ an unlimited number of foreign workers that qualify for the H-1B visa, making them completely cap-exempt as they sponsor H-1B visas.

However, in order for universities and certain entities to sponsor this visa, they must show that:

1) The majority of the worker’s duties will be performed at the institution

2) The job duties further the essential purpose, mission objectives, or functions of the institution, organization or entity.

The United States also has a number of Free Trade Agreements that specify the amount of H-1B visas that people from certain countries can receive. For instance, Chilean nationals are eligible for 1,400 H-1B visas a year and the US quotes Singapore nationals at 5,400 H1B visas a year. If these reserved visas are not used, then they roll over into the next fiscal year to applicants from other countries, thereby increasing the amount of H1B visa issuances for the following year.

How long does the H-1B Visa Last?

The H-1B visa allows foreigners to stay in the US for three years. This period can then be extended to six years. There are some exceptions to the rule that are applied in special circumstances. These include:

· If the H-1B visa holder is involved in exceptional United States Department of Defense work, he may be granted up to 10 years of stay on his H-1B visa

· Under the Immigration and Nationality Act 106a, if an H-1B visa holder has submitted an I-140 immigrant petition or a labor certification before the 5th year of his visa, he can renew the H-1B visa every year, in one-year increments, until a decision is made on the application for permanent residency.

· If an H-1B visa holder has had his I-140 immigrant petition approved, but is unable to start the final step of the green card process, he could be granted a three-year extension on his H-1B visa until the status is adjusted.

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More info on H-1B Visas…

There is always something to learn about H-1B visas and everything that it entails. You might have more questions on the types of documents needed for this kind of visa, the continued changes in policy and government regulations, as well as other logistical information like the tax status of an H-1B visa holder, or problems associated with the program. We have all that information and more, so that you can be fully aware and up to date on everything about this type of visa.

If there is anything in this article that you feel was left out that could be useful for others starting their learning process about what an H-1B visa is, please let us know in the comments section below. If you feel this could be useful for someone wanting to learn more about acquiring an H-1B visa, feel free to share to help spread the word. We look forward to hearing your thoughts and opinions and anything else you might have learned in this article!

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