H1B Visa

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Introduction

The H1B visa allows a US employer to temporarily employ a foreign worker in the U.S. in a specialty occupation.

A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and at least a Bachelor's Degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties, etc…). Current laws limit the number of foreign workers who may be issued an H1B visa to 65,000 a year, with an additional 20,000 for workers who already hold a masters from a US University.

Disclaimer

H1B visas are often processed by the applying company's attorney. This wiki is intended for general information about the visa, written by those who have gone through the process or are connected with it. You should always ask for, and follow, the advice of your company's attorney in the first instance. This protects you, and your position, with your new employer.

Details

The H1B (technically a H-1B after the corresponding section in the US Immigration and Nationality Act) annual allocation opens to visa applications on the 1st working day in April, with the earliest start date for employment being the 1st October of that year (though certain exemptions exist for federal and academic institutions).

The H1B is a non-immigrant visa that is initially valid for 3 years. The validity can be initially extended by 3 years, and then on a yearly basis after that. The H1B also has the benefit of being a dual-intent visa, allowing the employee to apply for an Adjustment of Status (AOS) to obtain a Greencard and become a Legal Permanent Resident (LPR) in the US. AOS must be sponsored by either the employing company or through family links if available.

Once granted an H1B, employees are tied to their employer for the visa to be valid. Employees cannot change their position or company without applying for a new visa (though these are not subject to the annual cap). Additionally, the visa is only valid while the employee is working, visa holders are not allowed to take unpaid leave or sabaticals. Loss of employment also invalidates the visa, either through redundancy or resignation.

Due to their flexibility, dual intent status and multiple entry allowance, H1B visas are very popular. During economic boom times, the visa allocation has been used within the first day of submission. However, since the economic downturn this has lengthened to approx 4-6 months. USCIS give regular updates on the available allocation during each year.

Canadian citizens don't have a H1B "visa" but in other respects, the requirements for a Canadian to obtain H1B status are the same.

Requirements of the H1B

  • A minimum of a Bachelor's Degree or equivalent (certified to a US Bachelor's Degree standard if awarded overseas), or at least 3 years of documented experience in the field for each year missing of study. As US Bachelor Degrees are 4 years, experience of at least 12 years is the minumum.
  • For several specialty occupations, such as law and medical doctors, a bachelor's degree alone is not sufficient as the US equivilant is usually a graduate degree.
  • A state licensure, if required to practice in that field.
  • Only US companies and institutions can apply for H1B visas, and must have first certified to the Dept of Labor (DoL) that the position cannot be filed by US workers.
  • Universities do not have a quota cap, but other businesses do, which means the visa allocation fills up very quickly. Within a day is normal for good economic times.
  • Your employer is responsible for the visa application fees, you may be responsible for the legal fees and for premium processing, but a respectable company wouldn't ask you to pay any of the associated costs.

Process

Before approving an H1B visa, 3 processes must be completed, the Labor Condition Application (LCA), the formal visa petition and the visa interview at an overseas US Embassy/Consulate.

LCA

The employer files for a LCA with the DoL, seeking initial approval for a foreign employee to work at the company in the specified position. Through the LCA, the employer confirms that you will be paid a set wage equal or above equivalent US workers (i.e. you are not cheap immigrant labor) and that US workers have been given the opportunity to apply for the position. The LCA takes approx 10 working days to process and must be approved before an H1B visa petition can be made.

Visa Petition

The petition form I-129 must be submitted by the employer to USCIS. This details the reason for the application, and also includes information about the job, company and applicant. The form is self explanatory and can be found on the USCIS website. This must be submitted with an approved LCA and fee payment, from the first working day of April until the annual H1B visa limit is reached. Processing can take up to 6 months for an Embassy interview or even longer depending on circumstance, though average is about 4 months. Premium processing can be paid for, which guarantees a response (approval, denial, request for more information or clarification) with 15 working days.

Visa interview

H1B Pro's

  • It has dual intent, meaning you can request an Adjustment of Status (AOS) to be an immigrant with a suitable sponsor (family or employer).
  • It is a multiple entry visa, not requiring any permission to travel abroad.
  • An accompanying spouse and family visa (known as the H4) can be applied for at the same time, allowing the husband/wife and family to arrive together.

H1B Con's

  • Visa number allotment is only 65,000 per year for new applicants, and can be used within the first days if demand is high that year.
  • Your employer must be willing to pay the $2-3k application fees, hire a lawyer and fill out the forms. These fees cannot be paid for by the applicant.
  • You are tied to your employer and employment for the duration of the visa. This means no unpaid leave or sabbaticals (being on the 'bench' is a grey area)
  • The accompanying spouse visa (H4), does not allow the spouse to work.
  • The spouse visa application is accessed on its own merits, and could potentially be refused while the H1B applicant is approved.
  • Adjusting status to a Greencard can take many years, requiring regular visa extensions while still being tied to the same employer.

Advice

"Work in Progress"

Alternative - EB2 Immigrant Visa

  • If H1B numbers are have reached their annual cap, then an EB2 Immigrant Visa may be a better alternative.
  • EB2 requires that the job is at masters degree level.
  • You don't need a H1B visa (or any non-immigrant visa) to be sponsored for an employment based Immigrant Visa
  • EB2 isn't necessary quick but as long as you are not affected by country based quotas (mainly an issue for those born in India and mainland China) it may be quicker than H1B.
  • You are a permanent resident on arrival.

Other Alternatives

  • Canadian citizens : TN (NAFTA) visa
  • Australian citizens : E-3 visa
  • Singapore/Chile citizens : H1B1 (similar to H1B except that there are separate quotas)
  • Intra-company transfers : L visa
  • Treaty traders/investors : E-1 or E-2 visa.