The H-1B Visa Explained

Welcome to our comprehensive guide on the H-1B visa, a non-immigrant visa that allows U.S. companies to employ foreign professionals in specialty occupations. This guide will take you through the entire process, from understanding what the H-1B visa is, to the application requirements and process, special considerations, and even transitioning to permanent residency. Whether you are an employer looking to hire foreign talent or a professional seeking to work in the U.S., this guide is designed to answer all your questions about the H-1B visa.

Understanding the H-1B Visa

The H-1B visa facilitates your employment as a foreign professional in specialty occupations within the United States, requiring specialized knowledge. The process involves a series of steps, starting with a petition by your employer.

Specialty Occupations and Specialized Knowledge

Specialty occupations are defined by their need for theoretical and practical application of highly specialized knowledge. These occupations typically require you to have a bachelor’s degree or higher in a specific field as a minimum entry requirement. Examples include, but are not limited to, fields such as engineering, mathematics, and information technology.

Specialized knowledge refers to your expertise in the particular area related to the specialty occupation. To qualify, you must demonstrate that you possess an advanced level of expertise that distinguishes you from others in the field.

Eligibility and Application Requirements

The H-1B visa category is designed for you if you wish to work in specialty occupations requiring specialized knowledge. As a prospective employee, you must have the relevant education or experience, while your employer is tasked with submitting the necessary petitions.

Criteria for Specialty Occupations

To qualify as a specialty occupation, the job your employer is offering must meet certain regulatory criteria. It must necessitate the application of highly specialized knowledge and typically require you to have at least a bachelor’s degree or its equivalent. Examples of such occupations include, but are not limited to, fields like engineering, mathematics, physical sciences, and technology.

Education and Experience

For you to be eligible for an H-1B visa, you must hold a bachelor’s degree or higher from an accredited institution in the specific specialty related to the job offer. In instances where you have not obtained a degree, the equivalent in experience – where three years of your professional experience is considered equivalent to one year of higher education – may suffice.

The Role of Employers in H-1B Petitions

Your employer plays a pivotal role in the H-1B visa process. They must first file a Form I-129, Petition for a Nonimmigrant Worker with United States Citizenship and Immigration Services (USCIS) on your behalf. This involves demonstrating that the position qualifies as a specialty occupation and that you meet the educational and professional criteria to fill this role. Additionally, your employer is required to comply with the Department of Labor’s regulations, which includes ensuring the employment terms do not adversely affect the conditions of similarly employed U.S. workers.

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Labor Certification and Legal Compliance

The H-1B visa program mandates strict adherence to labor certification and legal compliance to protect both American and nonimmigrant workers. Your employer is required to fulfill several critical steps to ensure they meet the program’s regulatory requirements.

Labor Condition Application (LCA)

The Labor Condition Application (LCA) is a document that your employer must file with the Department of Labor (DOL). The LCA is a formal statement by your employer attesting to compliance with several conditions, including payment of appropriate wages to you and the working conditions offered. This LCA Posting Requirements Explained provides further information on the obligations of U.S. employers under the H-1B visa program.

H-1B Wage Levels and Prevailing Wage Determination

H-1B wage levels are a critical component of the H-1B visa program, which allows U.S. employers to temporarily employ you if you are a foreign worker in a specialty occupation. The U.S. Department of Labor (DOL) has established four wage levels to determine the minimum wage that must be paid to you, based on job requirements, location, and the prevailing wage for the occupation in the area of intended employment.

The four H-1B wage levels are:

• Level I (entry-level) for basic understanding, routine tasks, and close supervision;
• Level II (qualified) for good understanding, moderately complex tasks, and limited supervision;
• Level III (experienced) for sound understanding, complex tasks, and independent performance; and
• Level IV (fully competent) for advanced understanding, highly complex tasks, and little or no supervision.

Your employer must pay you at least the prevailing wage corresponding to the appropriate wage level for your position, which is determined using data from the Occupational Employment Statistics (OES) survey. To determine the prevailing wage, your employer can use one of three methods: the Online Wage Library (OWL), private wage surveys that meet DOL criteria, or a Prevailing Wage Determination (PWD) from the DOL by filing Form ETA-9141 with the National Prevailing Wage Center (NPWC).

Your employer must pay you the prevailing wage or the actual wage, whichever is higher. The prevailing wage is determined based on the job’s geographical location and industry standards. Determination of the correct wage rate is a safeguard against undercutting the salary of U.S. workers in similar positions.

Department of Labor’s Role

The DOL plays a crucial role in the compliance and enforcement of H-1B regulations concerning your employment. The DOL oversees the labor certification process, which includes review and approval of LCAs and investigation of any alleged violations. The DOL ensures that your employer meets their legal obligations to both American workers and you as an H-1B visa holder, maintaining fair labor standards.

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• LCA Statuses Explained

H-1B Visa Cost

Obtaining an H-1B visa for you involves several costs to your employer, primarily filing fees and attorney fees. As of 2024, the filing fees include:

• Basic Filing Fee (Form I-129): $460
• Public Law 114-113 Fee: $4,000 (if applicable)
• Fraud Prevention and Detection Fee: $500
• ACWIA Education and Training Fee: $750 or $1,500

Attorney fees can range from $2,000 to $7,500, depending on the complexity of your case and the attorney’s experience. Other costs may include visa issuance fees and expenses related to obtaining required documents for you.

Your employer is responsible for paying most of the H-1B visa costs, while you may be responsible for certain expenses like visa issuance fees and travel costs. Although the cost of obtaining an H-1B visa can be substantial, the benefits often outweigh the expenses for both you and your employer.

Applying for the H-1B Visa

The process of your employer applying for an H-1B visa for you consists of several critical steps, starting from understanding the filing instructions to potentially having you selected through the visa lottery. Your employer should pay close attention to each phase to enhance the chances of your petition being approved.

At a glance here are the steps for your employer to apply:

1. Employer determines need and your qualifications for H-1B worker.
2. Obtain prevailing wage determination from DOL.
3. File Labor Condition Application (LCA) with DOL.
4. Upon LCA approval, file Form I-129 with USCIS, including documents and fees.
5. If you are selected in H-1B lottery and approved, you apply for H-1B visa or change status.
6. You begin employment on approved H-1B start date.

Note that this is a simplified overview of the H-1B application process. For a more in-depth look, check out this guide. Additionally, your employer and you should consult with experienced immigration attorneys to ensure compliance with all requirements and navigate any complexities in your specific case.

1. Filing Instructions and Petition Review

Your employer seeking to hire you as a nonimmigrant worker under the H-1B program must first ensure they meet the predefined filing instructions set by the USCIS. Each petition must be accompanied by the appropriate filing fee and evidence that the position qualifies as a specialty occupation. USCIS provides detailed guidance on the required documentation and the correct forms to use.

2. Service Center Processing

Upon receipt, the USCIS service centers conduct an initial review of the H-1B visa petition for you. During this stage, they check for completeness, verify that the filing fees have been paid, and confirm whether your petition fulfills all the eligibility criteria. Only correctly filed petitions will advance to the next stage.

3. Lottery and H-1B Cap

Due to the annual cap on the number of H-1B visas issued, a lottery system is often employed when the number of petitions exceeds available visas. USCIS employs a random selection process to distribute the visas fairly. The H-1B cap is set at 85,000 visas per fiscal year, including 20,000 for individuals like you with advanced degrees from U.S. institutions.

H-1B Visa Lottery 2025 Key Dates

If you are planning on applying for an H-1B visa in 2025, here are the key dates to keep in mind:

H-1B Registration Period for FY 2025

• Registration Opens: March 1, 2024, at noon Eastern
• Registration Closes: March 15, 2024, at noon Eastern

Account Creation for Registrants

• Registrants can create new accounts starting on February 21, 2024.

Beneficiary Information Submission and Registration Fee Payment

• Beneficiary information and registration fee submission begins on March 1, 2024.

Random Selection and Notification

• If enough registrations are received by March 15, 2024, random selection will take place.
• Notification to account holders is expected by March 31, 2024.

Temporary Increase in Credit Card Transaction Limit

• The daily credit card transaction limit may be temporarily increased from $24,999.99 to $39,999.99 per day for the FY 2025 H-1B cap season. (Note: This is subject to confirmation closer to the registration period.)

H-1B Petition Filing Eligibility

• An H-1B cap-subject petition can only be filed by a petitioner whose registration for the beneficiary was selected in the H-1B registration process.

2025 H-1B Visa Cap

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H-1B Interview

When you apply for an H-1B visa at a U.S. consulate or embassy abroad, you are generally required to attend an in-person interview with a consular officer. During the interview, the officer will review your application, supporting documents, and ask you questions to determine your eligibility for the H-1B visa.

The interview typically covers topics such as:

1. Your background, education, and work experience
2. Details about your proposed H-1B employment
3. Your intent to return to your home country after the visa expires
4. Any other relevant information to assess your eligibility

H-1B Interview Waiver

In some cases, the consular officer may waive your H-1B interview requirement. The most common reasons for an interview waiver include:

1. You are renewing an H-1B visa that has not expired or has expired within the past 12 months.
2. You are applying for an H-1B visa at a consulate or embassy that participates in the Visa Interview Waiver Program (VIWP) and meet the program’s criteria, such as having a previously issued U.S. visa and no prior visa refusals.
3. You are a citizen of a country that participates in the U.S. Visa Waiver Program (VWP) and meet the program’s requirements.

It is important to note that the decision to waive your H-1B interview is at the discretion of the consular officer, and not all applicants will be eligible for a waiver.

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H-1B Visa Processing Times

H-1B visa processing times for you can vary, typically ranging from 2 to 4 months for standard processing. However, this is an estimate and not a guarantee, as several factors can impact the timeline:

• USCIS workload
• Completeness of your application
• Requests for Evidence (RFEs) for you
• Your background checks

For faster processing, your employer can opt for Premium Processing, which guarantees a response within 15 calendar days but comes with an additional $2,500 fee. Premium Processing only ensures a quicker response for you, not a faster approval.

To account for potential delays, your employer should file your H-1B visa application as early as possible, ideally six months before the intended start date of your employment. By understanding the factors affecting processing times and planning ahead, your employer and you can navigate the H-1B visa process more effectively.

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H1B Visa Stamping

H-1B visa stamping is the process of you obtaining a physical visa stamp in your passport from a U.S. embassy or consulate abroad. This stamp allows you to enter and exit the U.S. during your H-1B visa validity period. Stamping is required when you are outside the U.S. and have been approved for an H-1B visa, when you need to travel abroad and re-enter the U.S., or when your current H-1B visa stamp has expired.

To obtain an H-1B visa stamp, you must:

1. Schedule an appointment at a U.S. embassy or consulate.
2. Attend the visa interview with required documents.
3. Pay the necessary fees.
4. Wait for processing and issuance of your H-1B visa stamp.

Processing times vary depending on the embassy or consulate and your case. Plan ahead and allow sufficient time, as additional documentation or background checks may be required for you. Remember, a visa stamp does not guarantee your entry into the U.S.; the final decision is made by the CBP officer at the port of entry.

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What if You’re Not Selected?

If you are not selected in the H-1B visa lottery, you have a few options to consider:

• Explore alternative visa categories: Look into other nonimmigrant visas that may suit your qualifications and employment, such as L-1, O-1, or TN (for Canadian and Mexican citizens).
• Consider cap-exempt employers: Some organizations, like universities, non-profit research institutes, and government research facilities, are exempt from the H-1B cap. Seeking employment with these entities could provide you an opportunity to secure an H-1B visa outside the lottery.
• Maintain your current status: If you are already in the U.S. on another valid visa status, such as F-1 (student) or L-1 (intracompany transferee), consider maintaining that status until the next H-1B cycle.
• Consult with your employer: Discuss potential options with your employer, such as remote work from abroad or delaying your start date until the next H-1B cycle.
• Reapply in the next H-1B cycle: If your circumstances allow, consider reapplying for the H-1B visa in the next fiscal year’s lottery.

Remember to consult with an experienced immigration attorney to assess your specific situation and determine the best course of action if you are not selected in the H-1B visa lottery. For more information on this topic, check out our guide What to Do If You’re Not Selected for an H-1B.

H-1B Visa Renewal

The H-1B renewal process is crucial for you if you wish to continue your employment in the U.S. beyond your initial H-1B visa period. You can apply for a renewal up to six months before your current visa expires, and the process involves your employer’s sponsorship, filing a new Form I-129 with updated supporting documents, and paying the required USCIS fees. USCIS processing times for your H-1B renewal can vary, but premium processing is available for an additional fee.

If your renewal petition is filed before your current visa expires, you are generally eligible for a 240-day extension of your employment authorization while the petition is pending. If you travel abroad after your renewal is approved, you may need to obtain a new H-1B visa stamp before re-entering the U.S. It’s important to note that you are generally limited to a total of six years in H-1B status, with some exceptions if you have a pending green card application.

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H-1B Visa Amendments

An H-1B visa amendment is a process that allows your employer to make certain changes to the terms of your employment if you are already working for them in the United States. Your employer must file an amended H-1B petition with U.S. Citizenship and Immigration Services (USCIS) to notify the agency of the changes and ensure compliance with H-1B regulations.

You may need an H-1B visa amendment if your employer makes any of the following changes to your employment:

1. Material change in your job duties
2. Change in your work location
3. Change in your salary
4. Change in your employer’s structure

It’s important to note that not all changes require an H-1B visa amendment for you. Minor changes, such as a pay raise or a change in your job title without a significant change in duties, generally do not require an amendment.

Your employer is responsible for determining whether an amendment is necessary for you and filing the appropriate paperwork with USCIS. As an H-1B worker, it’s crucial that you communicate any changes in your employment to your employer to ensure compliance with H-1B regulations. To learn more about this topic, check our comprehensive guide on H-1B Amendment.

Working in the United States

The H-1B visa program is fundamental for you if you are a professional aiming to work in the United States, especially in sectors like technology and health. It mandates specific conditions on your employment terms, assures work authorization for you, and conveys certain rights and protections to you as a visa holder.

Visa Duration and Extensions

Your H-1B visa grants you permission to stay and work in the United States for an initial period of up to three years. Depending on your individual circumstances, you may extend your stay for a maximum of six years. In specific cases where your green card application is pending, extensions beyond six years might be possible for you.

Work Authorization and Compliance

To work in the United States under an H-1B visa, you must first have your employer file a Labor Certification Application on your behalf. Compliance with working conditions standards is critical, including you receiving fair wages equivalent to U.S. workers in similar roles. Without proper work authorization, your employment is considered illegal.

Rights and Protections for H-1B Workers

As an H-1B visa holder, you are protected by U.S. labor laws, granting you the same rights as American workers regarding work environment and health regulations. Additionally, you are allowed a 60-day grace period upon job loss or resignation to find new employment or make plans to leave the country. The U.S. Department of Labor is responsible for enforcing these protections.

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H-1B Transfers

Just because you apply for an H-1B visa with one company, it does not mean you are permanently bound to that company. You may apply for a visa transfer if an opportunity with a new company presents itself.

To transfer your H-1B visa to a new employer, you must first secure a job offer from a U.S. employer willing to sponsor your H-1B visa. Your new employer will then file a new Labor Condition Application (LCA) with the Department of Labor, stating that they will pay you the required wage for your occupation and location.

Next, your new employer must file a new Form I-129, Petition for a Nonimmigrant Worker, with USCIS, along with the approved LCA and supporting documents. Once USCIS receives your H-1B transfer petition, they will issue a receipt notice (Form I-797C) to your new employer.

Upon your new employer receiving the receipt notice, you can start working for them, even if the transfer petition is still pending. USCIS will issue an approval notice (Form I-797B) once they approve your H-1B transfer petition. It’s important to note that your new employer must file your H-1B transfer petition before you leave your current employer, and you must have a valid H-1B status to be eligible for a transfer.

Transferring your H-1B visa can be complex, so it’s advisable that you work closely with your new employer and consider seeking guidance from an experienced immigration attorney to ensure a smooth transition. To learn more about this process, check out this guide.

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Layoffs and Revocation

As an H-1B visa holder, it’s important for you to understand the potential consequences of layoffs and visa revocation. If you are laid off from your job, your H-1B visa status may be at risk.

H-1B Layoffs

When your employer terminates your employment, they must notify USCIS and withdraw your H-1B petition. Once your employment ends, you have a 60-day grace period to take action before your H-1B status expires.

During this time, you can:

1. Find a new employer to sponsor your H-1B visa
2. Change to a different visa status
3. Leave the United States

If you don’t take one of these actions within the 60-day grace period, you may be considered “out of status” and could face consequences, such as accruing unlawful presence, which can lead to future visa ineligibility for you. Learn more about what to do if you’ve been laid off here.

H-1B Revocation

In some cases, your H-1B visa may be revoked by USCIS. This can happen if:

1. Your employer withdraws your H-1B petition
2. USCIS discovers that your H-1B petition was approved in error
3. You fail to maintain your H-1B status

If your H-1B visa is revoked, you must stop working immediately and either leave the United States or take steps to change your status. If your H-1B visa has been revoked, check out this guide.

To protect yourself in case of layoffs or revocation, stay informed about your H-1B status, maintain open communication with your employer, and have a plan in place for potential job loss. If you face layoffs or revocation, seek guidance from an experienced immigration attorney to understand your options and make informed decisions.

Special Considerations

When navigating the H-1B visa landscape, certain roles and circumstances are subject to exemptions or come with their own particular set of rules. These considerations can offer you alternative pathways or stipulations that differ from the standard H-1B requirements.

Exemptions and Special Programs

H-1B visa exemptions are available for certain types of employment which can include positions at institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations. These positions are not subject to the annual cap on the number of visas issued and can provide a route for you to secure an H-1B visa through qualifying entities without the constraint of the visa lottery system.

Fashion Models and Department of Defense Projects

• Fashion Models: Not all H-1B visas are for traditional specialty occupations that require you to have at least a bachelor’s degree. If you are a fashion model of distinguished merit and ability, you can also obtain an H-1B visa, assuming you meet certain criteria and standards.
• Department of Defense Projects: The H-1B visa category includes a cooperative research and development project worker (H-1B2), which facilitates projects you may work on with the Department of Defense. This specific visa is designated for assignments that require you to have a bachelor’s degree, and typically a unique government-to-government agreement is involved.

H-1B1 Visa for Chile and Singapore Nationals

If you are a national of Chile or Singapore, the H-1B1 visa provides a unique work visa arrangement. It functions similarly to the H-1B visa but is exclusively for these two countries as a result of free trade agreements. The H-1B1 category has a dedicated annual quota separate from the H-1B cap and entails distinct requirements and application procedures.

• Chile: 1,400 visas are specifically allotted to you if you are a Chilean national under the H-1B1 scheme.
• Singapore: Similarly, 5,400 visas are set aside exclusively for you if you are a Singaporean national.

If you are a recipient of the H-1B1 visa focusing on the arts, you must demonstrate the specialized nature of your skills and the requirement for a bachelor’s degree or its equivalent in the related field.

Family and Dependent Provisions

The H-1B visa program provides specific provisions for your family, ensuring that your spouse and children have avenues for accompanying or following to join you if you are the principal immigrant.

Spouse and Child Visa Options

Under the H-1B visa framework, your dependents, which include your spouse and unmarried children under 21 years of age, are eligible for the H-4 visa. This derivative status allows them to live in the United States during your period of authorized stay as an H-1B visa holder. Your dependents can apply for the H-4 visa concurrently with your H-1B application or at a later time, and they may file for an H-4 visa at a U.S. embassy or consulate abroad.

For more detailed information regarding the application process and fees for your dependents, they can refer to formal guidance on applying which outlines the use of Form I-539 for the primary applicant and Form I-539A for each child.

Adjustment of Status for Dependents

When it comes to changing their status, your dependents on H-4 visas may pursue an adjustment of status if they wish to become permanent residents (obtain a green card). This adjustment is possible provided they meet certain eligibility criteria, such as being the beneficiary of an approved immigrant visa petition and having an immigrant visa number immediately available. The availability of immigrant visas is subject to the annual caps and preferences system that governs U.S. immigration.

The legislative moves to increase the number of available employment-based green cards, including those for your dependents as an H-1B visa holder, are of particular relevance. Information on recent propositions which could affect your dependents’ eligibility and numbers can be accessed through articles discussing these Senate bills and their implications.

Transition to Permanent Residency

The H-1B visa offers you a dual intent feature, allowing you the potential transition to permanent residency. The pathway from obtaining an H-1B visa to a Green Card is well-established through U.S. immigration laws.

The Path from H-1B to Green Card

As an individual on an H-1B visa, you may seek to adjust your status to that of a lawful permanent resident, commonly referred to as obtaining a Green Card. This process typically involves your employer’s sponsorship and may include several steps such as labor certification (PERM), filing of an Immigrant Petition (Form I-140), and your application for an immigrant visa indicating your intent to become a permanent U.S. resident. The H-1B visa’s dual intent provision legally permits you to apply for a Green Card while in temporary worker status.

Adjustment of Status Process

The Adjustment of Status (AOS) process allows you to apply for permanent residency without leaving the country if you are currently residing in the U.S. on an H-1B visa. This process involves you filing Form I-485 with the USCIS. As an eligible candidate, you must have an approved I-140 and visa number immediately available, indicating no backlog in your employment-based category, to proceed with AOS. The benefits of AOS include you remaining in the United States during application processing and the optional work and travel authorization for you during this period.

Your transition from H-1B to a Green Card is interwoven with immigration policy; thus, you must comply with current laws and procedures. Legal counsel is often consulted throughout this process to ensure your accurate and timely filing of all required documents.

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Health Insurance, Taxes, and Loans

As an H-1B visa holder working in the United States, it’s important for you to understand your rights and responsibilities when it comes to health insurance, taxes, and loans. While navigating these aspects of life in the U.S. can be challenging, being informed and prepared can help you make the most of your time in the country.

Health Insurance

Most U.S. employers offer health insurance benefits to their H-1B employees like you, as it is a common practice in the country. If your employer provides health insurance, you can enroll in their plan and enjoy the same coverage as your U.S. colleagues. However, if your employer does not offer health insurance, you may need to purchase a private health insurance plan to ensure you have adequate coverage during your stay in the U.S.

Taxes

As an H-1B visa holder, you are required to pay federal, state, and local taxes on your income, just like U.S. citizens and permanent residents. Your employer will typically withhold these taxes from your paycheck, and you must file a tax return each year to report your income and pay any additional taxes owed. It’s crucial that you keep accurate records of your income and expenses and seek the advice of a tax professional familiar with non-immigrant tax issues to ensure you comply with U.S. tax laws.

Loans

As an H-1B visa holder, you may be eligible for certain types of loans in the U.S., such as:

• Car loans
• Student loans
• Mortgages
• Personal loans

However, securing a loan may be more challenging for you compared to U.S. citizens or permanent residents, as lenders may consider your visa status and length of stay when assessing your application. It’s essential that you research your options and work with lenders who have experience working with non-immigrant visa holders like you.

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• Guide to Health Insurance for H-1B Visa Holders
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Final Thoughts

It’s important for you to remember that the H-1B visa process is complex and can be challenging to navigate. However, with careful planning and understanding of the process, it can open doors to exciting opportunities for you and other professionals around the world. Whether you’re an employer seeking to hire foreign talent or a professional like yourself aiming to work in the U.S., we hope this guide has helped clarify the H-1B visa process and its requirements. As always, when dealing with immigration matters, it’s advisable that you consult with a legal expert to ensure you’re meeting all the necessary legal obligations and requirements.

Sources:

In addition to the original commentary provided in this article, material was paraphrased and synthesized from the following source:

• https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations
• https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process
• https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
• https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-of-status
• https://www.forbes.com/sites/stuartanderson/2024/02/05/senate-bill-adds-immigrant-visas-and-h-1b-family-protections/
• https://www.dol.gov/agencies/whd/immigration/h1b

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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