H-1B Visa

What You Should Know About H-1B Visas

The H-1B visa is a nonimmigrant visa program that allows U.S. employers to hire foreign workers with highly specialized skills or foreign fashion models of distinguished ability and merit to work in the United States for a specific period of time. This type of visa helps employers find qualified talent outside of the United States when these employers cannot find U.S individuals with the same skills, abilities, and talent.

This program was established under the Immigration Act of 1990 and is administered by the U.S. Citizenship and Immigration Services (“USCIS”). In 2022, the number of H-1B visa petitions increased by 19.1 percent over those filed in 2021, with 474,301 applications filed in 2022 compared to 398,296 in 2021. The median beneficiary age approved in 2022 was 33 years of age, with 66 percent of approved petitions falling in computer-related occupations. Further, the median compensation of approved beneficiaries increased from $108,000 in 2022 to $118,000 in 2023, representing an increase of 9.3 percent.

What Is a Specialty Occupation Under the H-1B Visa Program?

A “specialty occupation” is “one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent.” Occupations typically qualifying for the H-1B visa include those in the fields of technology, engineering, architecture, finance, modeling, math, and more.

How Do I Know If I’m Eligible for an H-1B Visa?

Let’s look at the eligibility requirements for the different types of H-1B visa classifications below:

H-1B Specialty Occupations

To enter the United States under an H-1B Specialty Occupation visa, the beneficiary must have:

• A practical and theoretical application of a body of highly specialized knowledge;
• An attainment of at least a bachelor’s degree in the specialty (or its equivalent) from an accredited college or university; and
• Hold a state license, certification, or registration that authorizes the beneficiary to practice in the specialty occupation immediately upon employment in the intended state.

Additionally, the specific position must meet one of the following requirements to qualify as a specialty occupation:

• A bachelor’s or higher degree (or its equivalent) from an accredited college or university is required for minimum entry into the particular position
• The degree requirement is common in the industry for similar positions among similar organizations.
• The employer applying for the visa program normally requires a degree for the position.
• The “nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.”

H-1B2 DOD Researcher and Development Project Worker

To enter the United States under an H-1B2 DOD Researcher and Development Project Worker visa, the beneficiary must have:

• An attainment of at least a bachelor’s degree in the specialty (or its equivalent) from an accredited college or university. This can be obtained by achieving any of the following:
  • Holding a bachelor’s (or higher) degree from an accredited college or university;
  • Holding a foreign degree that is equivalent to a U.S. bachelor’s (or higher) degree from an accredited college or university;
  • Holding a state license, certification, or registration that authorizes the beneficiary to practice in the specialty occupation immediately upon employment in the intended state.
  • Having specialized training, education, or “progressively responsible experience” in the specialty that is equivalent to completing a U.S. bachelor’s (or higher) degree from an accredited college or university and having “recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.”
  • A verification from the U.S. Department of Defense (“DOD”) project manager for the particular position stating that the beneficiary will be working on “a cooperative research and development project or a coproduction project under a reciprocal Government-to-Government agreement administered by DOD. Details about the specific project are not required.”
  • A description of the beneficiary’s duties on the project as well as the beginning and ending dates of the beneficiary’s involvement.
  • A statement outlining the current non-citizens employed on the current U.S. project as well as any names of non-citizens whose employment on the current U.S. project ended in the previous year.

H-1B3 Fashion Model

To enter the United States under an H-1B3 Fashion Model visa, the position must require a “fashion model of prominence” and the beneficiary must be a “fashion model of distinguished merit and ability.”

What Is the H-1B Cap?

H-1B classifications have an annual limit (or cap) of 65,000 new visas each fiscal year.

However, certain H-1B visas are exempt from this annual cap.  These include:

• An additional 20,000 petitions filed on behalf of beneficiaries with a master’s degree or higher (from a U.S.-accredited college or university);
• Any beneficiaries employed at an institution of higher education (or its affiliated non-profit entities, non-profit research organizations, or governmental research organizations); and
• Workers performing services or labor in the Commonwealth of the Northern Mariana Islands (“CNMI”) and Guam (if their employers file their petitions before December 31, 2029).

Out of these 65,000 visas, up to 6,800 are set aside each fiscal year for H-1B programs under the U.S.-Chile and U.S.-Singapore free trade agreements. Any unused visas in this group become available under the H-1B program for the following year.

The fiscal year for this cap begins on October 1st and ends on September 30th of the following year, at which time, the 65,000 counter is reset. The H-1B visa application process typically begins in March or April of each year, with the visas becoming effective on October 1st.

However, with the popularity of the H-1B visa program, the number of applicants often exceeds the number of available visas under the cap. Once the cap is reached, then the USCIS conducts a lottery where it randomly selects petitions that will be processed. For any petitions not selected or processed, those petitioners must wait until the next fiscal year to re-apply.

Occasionally, the USCIS announces a second random selection of H-1B petitions, as it did for the 2024 fiscal year. To stay on top of the H-1B process, connect with an experienced immigration attorney today to help you navigate this process to find and secure top talent.

How Is an H-1B Visa Petition Filed?

To file an H-1B visa petition, the employer or agent must complete the following steps:

• Submit a Labor Condition Application (“LCA”) to the Department of Labor (“DOL”) for certification.  This step only applies to visa petitions dealing with specialty occupations and fashion models).  This application includes certain attestations, such as:
  • The H-1B worker will be paid a wage that is no less than the wage paid to other similarly qualified workers.
  • The employer will provide working conditions that are not adversely impactful to other similarly employed workers.
  • No strike or lockout exists at the place of employment.
  • If a union is present at the place of employment, a notice of the LCA has been delivered to the union bargaining representative or has been posted at the place of employment.
• Complete and file a Form I-129, Petition for a Nonimmigrant Worker with the appropriate USCIS service center. For specialty occupations and fashion models, the DOL-certified LCA should be included in the filing.
• Apply for the H-1B visa. Once the Form I-129 petition is approved, then the beneficiary may apply with the U.S. Department of State (“DOS”) at the appropriate U.S. embassy or consulate abroad for the H-1B visa (if a visa is required). No matter if the visa is required, the beneficiary must also apply to the U.S. Customs and Border Protection (“CBP”) for U.S. admission in the H-1B classification.

How Long Can I Stay in the United States With an H-1B Visa?

As an H-1B specialty occupation and fashion model, you can generally stay in the United States for up to three years. However, your three-year term may be extended up to six years (although some exceptions apply).

If you are in H-1B status or have previously held an H-1B status, you may be eligible for an extension beyond six years if:

• At least 365 days have elapsed since your LCA was filed for certification with the DOL (if this certification is required); or
• An immigrant visa petition was filed with USCIS by your employer or agent on your behalf.

What Happens If I Change Employment or Employers?

Once you are working in the United States as an H-1B employee, your employment terms may change, or you may switch employers altogether. How does this impact your H-1B visa?

My Employment Terms Change With the Same Employer.

If your employment terms change with your current employer, your employer must file another Form I-129 requesting the employment changes on your behalf. You can work according to the new terms of your employment once the petition is filed or as of your requested start date listed on your petition, whichever is later.

I’m Changing Employers.

If you change H-1B employers, you may begin working for your new employer once your new employer files a new Form I-129 petition or as of your requested start date listed on your petition, whichever is later.

To be authorized to change employers, you must have had continuous employment in the United States from the time of your last admission.  Additionally, your new employer must file a new Form I-129 petition before your authorized stay expires.

If your new Form I-129 petition is approved, then you may continue working for your new employer through the time indicated on your petition. However, if your petition is denied, then you may continue working for your previous employer if your H-1B stay period is still valid for that employer.

If you are laid off, quit, fired, or otherwise cease your employment with your previous employer, you have up to 60 consecutive days or until the end of your H-1B period (whichever is shorter) to find new employment, change your immigration status, or voluntarily leave the United States.

Can I Bring My Family to the United States with an H-1B Visa?

If you are granted an H-1B visa, your spouse and unmarried children (under 21 years of age) may seek admission to the U.S. under an H-4 status.

You are eligible to pursue an H-4 status if the H-1B nonimmigrant spouse/parent:

• Is the principal beneficiary of a Form I-140, Immigrant Petition for Alien Workers, or
• Has been granted H-1B status or has been granted a post-sixth-year extension of H-1B status under Section 106 of the American Competitiveness in the Twenty-First Century Act of 2000.

For H-4 spouses, you may file a Form I-765, Application for Employment Authorization, requesting employment authorization under the H-4 status. For H-4 dependents, you are not eligible to work in the U.S. and are not eligible for a social security number.

H4 beneficiaries are only eligible to stay in the United States, while the principal H-1B beneficiary works in the United States under a currently valid H-1B petition.

Your H-1B Package Submission

When filing the H-1B petition, your employer must follow the USCIS’s preferred order of documents, making the submission as smooth as possible.  According to the USCIS, its preferred order at the time of submission is:

• Form G-28 (if represented by an attorney or accredited representative)
• Copy of the Registration Selection Notice for the Beneficiary Named in the Petition
• Form I-129, Petition for a Nonimmigrant Worker
• Addendums/Attachments
• H Classification Supplement to Form I-129 and/or Trade Agreement Supplement to Form I-129 (for H-1B1 Chile-Singapore petitions)