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The H1B Visa: Who Can Apply, and How?

To live and work in the United States, an employee will need a permit, visa, or green card. But their unique circumstances will dictate which type of application they’ll need to use.

The H-1B visa allows foreign nationals to work and reside in the U.S. for three years. Because the American employer applies for the visa on the employee’s behalf, the employer is responsible for all fees. However, not everyone qualifies for this opportunity.

According to USCIS, you may qualify for the H-1B visa if you work:

  • In a specialty occupation
  • In research and/or development for the U.S. Department of Defense
  • As a fashion model (with “distinguished merit and ability”)

Furthermore, you must meet the following requirements:

  • The U.S. Department of Labor has certified your labor condition application
  • Your specialty occupation is related to your field of study
  • You have an employer-employee relationship with your petitioner, and they pay you the higher of the actual or prevailing wage for your work (i.e. what most employees in your position earn)
  • You may will also need a license, registration, or certification that allows you to perform this work.

H1B Specialty Occupation List

If you’re considering applying for the visa, you’ll need to know exactly what USCIS considers a specialty occupation. Generally, a job is a specialty occupation if it requires a bachelor’s degree or higher, or the work is so specialized that it warrants the skills and knowledge gained through higher education. You will also need a license, registration, or certification that allows you to perform this work. If you don’t have a degree, you must possess equivalent training or experience. These requirements also apply if you are working on a project for the Department of Defense.

Here are a few examples of jobs that likely qualify as specialty occupations:

  • Engineers
  • Doctors/surgeons
  • Chemists
  • Biologists
  • Architects
  • Professors
  • Financial analysts/accountants
  • Statisticians

These are just a handful of what USCIS might consider a specialty occupation, but immigration laws experience frequent changes. Furthermore, whether you are granted an H-1B visa depends largely on availability and competition.

H1B Visa Application Process

In December, USCIS announced the implementation of a mandatory electronic registration process. For 2021 H-1B visas, employers will need to pay $10 and register online before completing the actual petition. The window for this year’s registration is March 1 through March 20, 2020.

After this registration process, USCIS will conduct a preliminary evaluation of applicants using the basic information submitted online. Those that meet the initial requirements will then be notified of their eligibility and can submit the completed H-1B visa petition.

This petition will include:

  • Completed and signed Form I-129 and related documents
  • Filing fees (minimum $460; use USCIS’s fee calculator for an exact amount)
  • Evidence of the employee’s qualifications

Every year, USCIS places a cap on the number of H-1B visas it will issue. In recent years, this cap has been 65,000. Because the amount of applications always exceeds this cap, USCIS implements a lottery system to randomly choose from eligible applicants. However, the first 20,000 applicants with master’s degrees or higher may be exempt from this cap.

2020 is the first year in which the lottery occurs after the online registration system eliminates ineligible candidates, which the USCIS says will save both the government and employers from wasted time and resources.

If USCIS grants an employee an H-1B visa, they can stay for three years. They may be able to extend the visa to stay up to six years. These are generalities, however, and some circumstances may limit or lengthen extensions.

Get in Touch with Our Firm for Further Assistance

Are you an employee looking to work in the U.S. or an American employer who needs to hire outside of the country? Our attorney at the Law Offices of Timothy D. Widman can help you determine whether the H-1B visa program is right for you. With decades of experience practicing law, Attorney Widman has a thorough understanding of complex immigration laws. We are dedicated to providing extraordinary counsel, representation, and resources without compromising personalized support.

Let us put our skills to work for your case. Contact us online or call (408) 780-1684 to begin today.

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