H-1B Visa (Specialty Occupation)


The H-1B visa program is for foreign individuals to work for US entities in occupations that require specialized knowledge.  A “specialty occupation” is defined by USCIS as an occupation which requires theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent.  Examples of fields for which H-1B visas are administered are architecture, engineering, mathematics, physical sciences, social sciences, medicine/health, education, business, and the arts.

There are two important types of H-1B visas: cap-subject and cap-exempt. 

Cap-Subject - Each fiscal year, there is a numerical limit of 85,000 new H-1B visas that can be issued to individuals working for cap-subject employers, 20,000 of which are reserved for individuals holding an advanced degree.  H-1B visas can be filed up to 6 months prior to the start date, and since the USCIS fiscal year starts October 1 each year, April 1 is the first day petitions can be filed.  Due to the numerical limit for cap-subject employers, the cap is typically reached the first week of April even though work cannot begin until October 1 of that year.  In April 2017, for instance, USCIS received 199,000 H-1B cap-subject petitions for work to begin in October 2017.  Due to the frustration of being put into a lottery process, uncertainty as to whether the petition will be approved, and the fact that the earliest work authorization can be obtained is about six months from filing, many individuals are seeking alternative visas, such as O-1.

Cap-Exempt – Due to the overwhelming demand for H-1B visas and limited number of visas available, some employers are exempt from the numerical limitation.  Since there is no numerical limitation for cap-exempt employers, there is no requirement for the petition to be filed several months in advance of employment beginning.  Examples of cap-exempt employers are institutions of higher education, non-profit organizations associated with higher education institutions, and non-profit research or government organizations.

Regardless of whether an individual holds a cap-subject or cap-exempt visa, H-1B visas can be initially issued for three years and are renewable for up to six years total.*
         *One exception to the six-year limitation for holding H-1B status is if an individual has an approved I-140 under                                                any category and their priority date is not current, then the H-1B visa may be extended beyond the six year maximum.

How To Qualify

H-1B visas must be filed by the petitioning employer.  The employer needs to obtain an approved Labor Condition Application (LCA) from the US Department of Labor prior to filing the petition.  The LCA lays out the job offered, job duties, prevailing wage information for the surrounding area, rate of pay being offered, and other details relating to the employment.  When submitting the H-1B petition to USCIS via form I-129, the employer includes a copy of the approved LCA and details the work to be done, additional details of the employment, and relevant fees.  H-1B fees often reach into the thousands of dollars mark; however, the US Department of Labor prohibits employers from collecting these fees from the employee, and instead, the employer must pay them.  Once the H-1B petition is approved, the employee can apply for a visa stamp at their consulate/embassy and enter the US up to 10 days prior to the H-1B start date.

H-4 Visas For Dependents

Unmarried children under the age of 21 and the spouse of the H-1B holder may apply for an H-4 visa to accompany the H-1B visa holder during the visa duration.  Spouses of H-1B visa holders not work in the US without an EAD.  An H-4 EAD is only obtainable if the H-1B holder is the principal beneficiary of an approved I-140 petition under any category, or if the H-1B visa holder has obtained an extension beyond the six-year maximum. 

H-4 visa holders (spouses or children) may also take up full or part time study in the US.

Can An H-1B Visa Holder Apply For Permanent Residence in the US?

As long as they are otherwise eligible, there is no restriction on H-1B visa holders applying for permanent residence.  The H-1B visa category allows for dual-intent, which means one can enter the US with both non-immigrant and immigrant intent.  When entering the US in H-1B visa status or changing status to H-1B status, the individual must intend to work according to the terms of the visa, but they are not restricted from seeking permanent residence at the same time by virtue of their status.