The H-1B enables US-based employers to hire foreign workers for specialty occupations, to perform services of exceptional merit and ability that relate to the Department of Defense (DOD), cooperative research and development, or as a fashion model with specialized abilities or merit. The H-1B Visa is a temporary visa, meaning that employers can only hire employees on a temporary basis.
H1-B Visa Subcategories
There are three subcategories of the H1-B Visa. These subcategories include:
- H-1B Specialty Occupations: Specialty occupations are those that require at least a Bachelor’s degree or the equivalent in work experience; the degree that is required for the job is one that is standard for the industry or the needs of the job are so intricate that the role can only be performed by someone who has a degree, the employer requires a degree or the equivalent of a degree for the position being filled, or the duties of the position are so intricate that only someone who has a minimum of a Bachelor’s degree will be able to perform the duties.
- H-1B2 DOD Researcher and Development Project Worker: Jobs that this subcategory of the H-1B visa applies to must require a minimum of a Bachelor’s degree or the equivalent in work experience, and the project must be provided for via an agreement between governments, and that agreement is administered by the US Department of Defense.
- H-1B3 Fashion Model: Positions that this subcategory of the H-1B visa apply to must require a prominent fashion model.
Detailed information about the qualifications for the H-1B Visa can be found here.
H-1B Visa Requirements
The general requirements for the H-1B Visa are as follows:
- H-1B Specialty Occupations applicants must meet at least one of the following criteria:
- Foreign-based workers need to have successfully completed a minimum of a Bachelor’s degree that is required for the specialty occupation for which they will be fulfilling and that degree must be granted by an accredited post-secondary academic institution.
- Foreign-based workers must hold a foreign degree that is the equivalent of a US Bachelor’s degree or higher, and that degree must pertain to the specialty occupation they will be fulfilling.
- The worker must have a state license, registration, or certification that is unrestricted and enables him or her to fully perform the specialty occupation, as well as be engaged in the specialty occupation within the state where he or she will be employed.
- The worker must have the education, training, or necessary experience in the specialty field that would be considered the equivalent of completion of the degree the position requires; furthermore, the individual must have recognized expertise in the specialty field through practical experience.
- H-1B2 DOD Research and Development Project Worker applicants must meet at least one of the following criteria:
- Have successfully completed a minimum of a US Bachelor’s degree or higher that is required for the specialty occupation, and that degree must be from an accredited college or university, or
- Have the foreign equivalent of a US Bachelor’s degree that is required for the specialty occupation.
- Have a state license, registration, or certification that is unrestricted and enables the worker to fully perform the roles required in the specialty occupation and engage in those roles in the state where the work will be performed.
- Have an education, training or experience in the specialty occupation that is considered the equivalent of the completion of a US Bachelor’s degree; furthermore, the worker must be recognized as an expert in the specialty occupation.
- H-1B3 Fashion Model applicants must meet the following criteria
- The applicant must be a prominent fashion model, meaning that he or she must possess distinguished merit and ability.
The total costs of the H-1B Visa vary and are dependent on the USCIS and the country of origin of the foreign worker.
The petitioner of the H-1B Visa can expect to pay the following fees:
- USCIS Form I-129 filing fee
- A Fraud Prevention and Detection Fee
- An American Competitiveness and Workforce Improvement Act (ACWIA) fee
- A Public Law 114-113 fee
- Attorney fees
The foreign employee will be required to pay for any fees that are related to obtaining their visa at the US embassy or consulate in their home country.
The process for filing for an H-1B Visa is as follows:
- For Specialty Occupations and Fashion Model petitions, an employer must submit a Labor Condition Application (LCA) to the Department of Labor (DOL) for certification.
- The employer must complete and submit a Form I-129, Petition for a Nonimmigrant Worker with the proper USCIS Service Center. For Specialty Occupations and Fashion Models, the employer must also submit the DOL certified LCA with the Form I-129.
- If a visa is required, the foreign workers must apply for an H-1B Visa with the US Department of State in their home country through their US embassy or consulate. This can be done once the Form I-120 petition has been received and approved. All foreign workers must apply to the US Customs and Boarder Protection (CBP) so that they can gain lawful entry into the United States with an H-1B classification.
H-1B Period of Stay
H-1B Visa holders are permitted to stay in the United States for a period of up to three years. The period of stay can be extended; however, typically, the extension cannot exceed a total of six years (in some cases, exceptions may be made). If the employer terminates the H-1B Visa holder before the period of stay expires, the employer is responsible for any costs related to the employee’s return to their home country. If an employee resigns from the position prior to the expiration of the period of stay, the employer is not responsible for transportation costs for the employer to return to his or her home.
The annual cap on H-1B visas is 65,000 every fiscal year. The first 20,000 petitions that are filed for foreign workers that have a Master’s degree are exempt from the cap. H-1B employees who are employed at institutions of higher education or a nonprofit research organization or a government research organization are also exempt from the cap.