What Is An H-1B Visa?
The H-1B visa is a nonimmigrant working visa available to skilled professionals in specialized occupations. This visa classification allows U.S.-based employers to hire foreign workers for highly skilled positions and offers eligible foreign nationals more flexibility and professional opportunities than many comparable visas.
H-1B Visa Lottery
H-1B visas are the only US visas that are subject to an annual lottery, which is held each spring by the United States Citizenship and Immigration Services (USCIS). U.S. immigration regulations “cap” the allotment of H-1B visas at 85,000 annually, which is comprised of 65,000 selectees from the “regular” lottery for Bachelor’s degree holders and an additional 20,000 selectees from the pool of applicants holding a U.S. Master’s degree or above. Employers of selected applicants can then file an H-1B petition on the employee’s behalf and, if approved, the employee is authorized to begin working in H-1B status on October 1 of that year.
How to Qualify
To qualify for H-1B status, applicants must have a U.S. job offer for a position that requires a minimum of a Bachelor’s degree in a specialized field. In addition, the applicant must possess the requisite undergraduate or higher education degree (and professional licensing if applicable) to perform the specialized job duties. The H-1B visa is therefore especially well-suited to workers in disciplines such as engineering, architecture, computer science, finance, technology, law, and other areas that call for advanced study of a specialized body of knowledge. An experienced immigration attorney can help evaluate if an applicant’s profession qualifies as a “specialty occupation” within the meaning of the U.S. immigration regulations.
Employers of H-1B visa holders are responsible for confirming to the U.S. Department of Labor that the H-1B employee will receive either the actual wage paid to similarly situated workers or the prevailing wage for the occupation in the employer’s geographic area, whichever is higher. This condition is meant to protect both H-1B visa holders and U.S. workers, ensuring that all employees are paid fairly, equally and appropriately according to their skills and backgrounds. Employers must also maintain on-site inspection records in case of a Department of Labor audit or to be made available at the request of other employees.
H-1B visa holders are initially granted a three-year period of H-1B status, which can be extended to a maximum of six total years of H-1B eligibility. Additionally, visa holders can “recapture” time spent outside the U.S. after their H-1B status takes effect.
Special Features of the H-1B Visa
The H-1B visa is unusual as it is a “dual intent” visa, meaning that H-1B visa holders are not required to demonstrate an absence of immigrant intent (the desire to become a U.S. permanent resident) upon entering the U.S. in H-1B status. This attribute makes H-1B visas an attractive option for those who would like to eventually apply for permanent residency in the U.S.
The H-1B visa is also the only visa to offer “portability” provisions, which enable professionals to switch employers with relative ease. This adaptability allows them to pursue superior opportunities, expand their skill sets, and contribute to the U.S. economy, among other unique advantages.
Please contact a KM&M attorney if you are interested in learning more about H-1B visas or other immigration topics.