Everything You Need To Know About the H1B Visa

Posted by Harry Tapias on February 24, 2020

What is an H1-B Visa?

An H-1B visa is temporary, allowing employers to petition for an employee to fill a specialty occupational position inside the U.S. 

In order for an employer to sponsor an employee for an H-1B visa, they must prove their ability to hire, pay, fire, supervise, and otherwise control the workflow of the employee.

 

What Are Examples of “Specialty Occupational Positions” That Might Qualify?

Any jobs that require theoretical or technical expertise in specialized fields usually apply. The most popular industries taking part in the H-1B program include organizations in IT, architecture, engineering, finance, mathematics, medicine, or science. 

Any professional level job usually requiring a bachelor’s degree or higher can qualify as a specialty occupation. If you do not have a bachelor’s degree or higher, you may be able to show degree equivalence through work experience and/or other qualifications.

 

What are the general criteria to obtain an H-1B Visa?

For an employee to qualify for an H-1B visa, they must meet the following criteria:

  • Possess a bachelor’s or higher degree from an accredited college or university in the U.S. If the degree is from an overseas institution, the criteria must be equivalent to a similar degree from an accredited, domestic school. 
  • Own an unrestricted state license, registration, or certification which authorizes the employee to fully practice the specialty occupation.
  • Have documented education, training or professional experience in the occupation that is equivalent to a degree from a post-secondary institution.
 

What documents do I need for an H-1B Application?

Employers must provide the following:

  • The organization’s legal name
  • Any names your organization does under “Doing Business As” (if applicable)
  • Your Employer Identification Number (EIN)
  • The primary office address of your organization (address must be located in the United States )
  • Your organization’s contact person (authorized signatory) will need to provide their legal name, title, and contact information (daytime phone number and email address).

The potential candidate must provide the following:

  • The candidate’s legal name
  • Their gender  
  • Their degrees and certificates from education institutions (if the candidate possesses a master’s degree or higher from a U.S. institution of higher education, they are eligible for the advanced degree exemption under INA 214(g)(5)(C)). Consider applying for this if it applies!
  • The candidate’s date of birth  
  • Their country of birth 
  • Their country of citizenship 
  • A valid passport number 

 

Who Is Allowed to Accompany an H-1B Visa Holder When They Relocate to the U.S.?

H-1B visa holders can bring the immediate family (a spouse and unmarried children under 21 years old). These family members must seek admission under the H-4 nonimmigrant visa as dependents.

An H4 Visa holder is allowed to reside in the US as long as the H-1B visa holder holds legal status.

 

How long does an H-1B Visa last?

H-1B visas are initially awarded for up to three years and are renewable for an additional three years. Normally, the maximum time a foreign national can reside in the U.S. under H-1B visa status is six years.

Expired H-1B visa holders must leave the U.S. for at least one year before applying again for renewal status.

 

What if I Spend Time Outside the U.S. While Holding an Active Visa?

Only time spent inside the U.S. counts against the H-1B visa’s six-year limit. Any time spent outside the country during your visa period can be “recaptured” to lengthen your total stay.

You can apply to recapture full days (not partial days) spent outside the U.S. during the visa’s effective dates. If you are successful in recapturing time, it automatically applies to your immediate family (holding H-4 dependent status).

 

What Happens If I Resign or My Employer Terminates the Position?

If you voluntarily resign or your position is terminated, then you must find another employer sponsor, change your visa status, or return to your country of origin. 

Fortunately, you do have up to 60 days to handle unexpected changes in employment while legally remaining in the United States.

 

How Do I Renew My H-1B Visa?

When H1B holders “renew” their visa they are simply extending their stay in the US to continue working the same employer for an additional three years. To extend their H1B stay, employees and employers need to prepare an H1B petition with a new LCA, and new I-129.  There are no shortcuts. The advantage of newing the H1B visa is that the candidate is cap-exempt, and does not subject to the lottery.

Nonetheless, the following information is still needed when filing the extension petition:

Employers must provide the following:

  • The organization’s legal name
  • Any names your organization does under “Doing Business As” (if applicable)
  • Your Employer Identification Number (EIN)
  • The primary office address of your organization (address must be located in the United States )
  • Your organization’s contact person (authorized signatory) will need to provide their legal name, title, and contact information (daytime phone number and email address).

 The potential candidate must provide the following:

  • The candidate’s legal name
  • Their gender  
  • Their degrees and certificates from education institutions (if the candidate possesses a masters degree or higher from a U.S. institution of higher education, they are eligible for the advanced degree exemption under INA 214(g)(5)(C)). Consider applying for this if it applies!
  • The candidate’s date of birth  
  • Their country of birth 
  • Their country of citizenship 
  • A valid passport number  

In 2019, more than 200,000 people applied for an H-1B visa for skilled workers. Out of that number, only 85,000 were accepted, making the selection rate just 42.5%.

As the US economy continues to improve, competition for spots will continue to grow in 2020. Make sure to maintain proactive communication with your employer to ensure a smooth, punctual renewal process.

 

Are There Employment Visas to Consider Besides the H-1B?

Other work-related visa programs allow you to take advantage of the benefits the U.S. has to offer. These include:

  • H-3 Trainee visa
  • F-1 Optional Practical Training (OPT) Extension 
  • F-1 Curricular Practical Training (CPT) Extension
  • F-1 Student Visa 
  • O-1 or P-1 Extraordinary Ability Visas
  • L-1 Intracompany Transferee Visa
  • Permanent Residency - via Permanent Labor Certification

 

Why Should I Invest in an Immigration Attorney to Help With the Visa Process?

Some applicants and sponsors forgo the knowledge and experience of an attorney to save money. It is a risk. There are situations where it is helpful for the employer and employee to have legal assistance when completing the H-1B Visa petition. 

Having an immigration attorney on your side can help by

  • Answering questions and guiding the process
  • Discussing expectations for lottery selection
  • Accurately completing the Labor Conditions Application
  • Filing the H-1B Visa Petition with supporting documentation
  • Strategically responding to USCIS evidence requests
  • Following up on petition reviews and lottery results

 

At Loigica, PA, we have extensive experience working for both applicants and companies. Speak with one of our multilingual immigration lawyers in Miami for more information. 

Request a free consultation with our legal team today by calling +1 (786) 292-9704 or sending us a message through our private contact form.

Topics: H1B Visa, Immigration Visas