This article provides guidance to foreign nationals who want to work in the United States. Although there are several types of U.S. work visas available, one of the most commonly used is the H-1B, for temporary specialty workers. We will outline common H-1B issues, explain how to complete the H-1B petition, and offer pointers for completing the application process.
In you apply for H-1B status, your employer will submit an I-129 petition on your behalf to U.S. Citizenship and Immigration Services (USCIS). An immigration adjudication officer at USCIS will review your petition and decide whether you meet the basic qualifications: namely that you have a temporary job offer from a U.S. employer to perform services in a specialty occupation.
If the position you have been offered meets one of the four following criteria, it is likely that you will qualify for the H-1B:
Of course, in addition to your position qualifying for an H-1B visa, you must qualify for the position. That means that if the position requires a license or a special skill or certification, you must possess these credentials in order to qualify for the H-B visa.
For example, let’s say you are applying for an H-1B visa to work in the specialty occupation of pediatrician. To be a pediatrician, you must have a medical degree as well as a medical license. You will need to demonstrate that you have both, by submitting documentary proof to USCIS, in order to obtain your H-1B visa.
See Who Qualifies for an H-1B Visa? for more on the eligibility rules.
There is an annual limit of how many H-1B visas the U.S. will issue every year (referred to as the H-1B Cap). The cap is 65,000.
While that number may seem large, in past years the H-1B cap was reached in less than one week. Therefore, it is very important to apply for your H-1B before the cap is reached -- or to qualify in a category that is exempt from (in other words, not counted against) the cap.
The U.S. exempts 20,000 H-1B applicants who hold U.S. master’s degrees from the cap each year. Various types of employers may also be exempt from the cap.
If you or your employer is cap-exempt, then you do not have to worry that an H-1B visa will not be available to you. For example, let’s say you have a master’s from a U.S. university, making you cap-exempt (if you are one of the first 20,000 applicants). On December 1, 2013, the H-1B cap was reached. Because you are cap-exempt, you can apply for your H-1B any time after December 1, 2013 (such as on March 1, 2014) and your petition will not be denied due to the fact that the 65,000 cap has been reached.
Although every H-1B case is unique to the applicant, certain materials are required for each H-1B petition, as listed below. Failure to include any of these documents may lead to a delay in your petition’s processing or even a denial.
Also, realize that USCIS’s fees are subject to change and it is your responsibility to include the correct fees. Before filing your petition consult the USCIS website.
Finally, if you received your education at a foreign university, you will need to obtain a credential evaluation from a company specializing in these services. The company will review your transcript and degree coursework and issue a report that confirms your degree is equivalent to a U.S. bachelor’s degree. (You can find these companies by performing a simple Internet search.)
After USCIS approves the I-129, you are eligible to enter the U.S. in H-1B status. The logistics of obtaining your H-1B status will depend upon your own circumstances. In general, there are two groups of H-1B visa applicants -- those who are outside of the U.S. and are required to go through consular processing ("CP") in order to obtain their H-1B visa, and those who are already in the U.S. and are NOT required to leave in order to obtain their H-1B visa.
Let's talk about the CP group first. When your employer filed your I-129 petition with USCIS, it should have also included a copy of the complete petition. USCIS will, after approving the I-129, send that copy to the Kentucky Consular Center ("KCC"), the U.S. agency that coordinates visa applications with U.S. consulates around the world.
The KCC will make sure that the U.S. consulate in your country has your approved I-129 petition. Once you receive your I-129 Approval Notice, you can contact that U.S. consulate in order to schedule your H-1B interview.
Plan ahead for the fact that you can only enter the U.S. a maximum of ten days before your H-1B status begins. So, for example, if your status begins on October 1, 2012, you should try to schedule your interview in the month of August or September, because the U.S. consulate is going to give a you a visa that is valid starting only on September 30.
If you are already in the U.S. in a different status (such as F-1 student status), and you file for a change of status to H-1B, you are not required to leave the U.S. to get an H-1B visa. You can simply stay in the U.S. and begin working when your H-1B status kicks in. However, if you wish to leave the U.S. after your H-1B status begins, you will need to go to your U.S. consulate to get your H-1B visa before you will can reenter the United States.
Your spouse and children (unmarried, under the age of 21) are eligible to accompany you to the U.S. as your dependents. Upon submitting their own visa applications, they will be given H-4 status. While in H-4 status, your dependents are able to attend school in the U.S., but they are not allowed to work in the United States.
Your spouse and children’s H-4 statuses are entirely dependent upon you maintaining your H-1B status. Therefore, if you terminate your H-1B status (such as by quitting your job), your dependent’s H-4 statuses will automatically terminate as well.
Being in the U.S. without any lawful immigration status can result in very serious immigration consequences. If you bring H-4 dependents to the U.S., you must always remember that their statuses are dependent upon yours, and factor in their situations when making your immigration choices.
You can be in the U.S in H-1B status for a maximum of six years. Once you have worked in H-1B status for six years, you are required to leave the U.S. and return to your home country for a full year before you can reenter the U.S. in H-1B status.
However, there are important exceptions to this rule that allow H-1B workers to extend their status past six years. These exceptions are provided for in the U.S. law referred to as “AC21.” See Can an H-1B Visa Holder Extend Stay Beyond Six Years?
H-1B status is a nonimmigrant status, meaning that, by itself, it cannot lead to permanent residence in the U.S. (obtaining a green card).
However, once a nonimmigrant is in the U.S. in H-1B status, he or she is not prevented from applying for a green card while continuing to work in the U.S. in H-1B status (unlike certain other types of nonimmigrant visa holders, who would have to wait for the green card approval in their own country).