The H-1B Visa – A Special Visa for Specialized Workers

General Overview

Through many legislative actions including the Immigration and Nationality Acts of 1952 and 1965, and the Immigration Act of 1990, more and more provisions have allowed foreign nationals the opportunity to experience and purse the “American Dream” to varying extents, temporarily or permanently. The H-1B visa is one of many temporary visa offerings established by the United States Congress, available to foreign nationals since the Immigration Act of 1990 was signed into law.

The H-1B visa is recognized as a visa for persons in specialty occupations. However, it is fully and formally listed as a visa for Specialist Occupations, DOD (Department of Defense) Cooperative Research and Development Project Workers, and Fashion Models. For any industries and jobs left unfilled by U.S. workers, the H-1B visa grants employer’s permission to hire foreign nationals.

As defined by the United States Citizenship and Immigration Services (hereinafter   USCIS) and the Department of Homeland Security (hereinafter DHS), the H-1B visa is a nonimmigrant classification, meaning foreign nationals are temporarily admitted into the United States, and only for a specific purpose such as work, business, or pleasure. Because the nature of this classification is temporary, the activities pursued and time spent in the country itself are limited.

USCIS provides the following requirements to qualify for the H-1B Specialty Occupation visa:

-The applicant must have a bachelor’s degree/country equivalent or higher from an accredited institution;

-The occupation pursued must focus on a theoretical and practical application of a body of specialized knowledge that itself requires a bachelor’s degree or higher, and;

-The occupation must require job duties so complex or unique, only an applicant with a degree can qualify, and more.

According to the most recent annual summary published by USCIS and presented to Congress, fiscal year 2020 saw the highest amount of application approvals belonging to computer related occupations. Architecture, engineering and surveying, administrative specializations and education all follow with the highest rates of approved petitions. 54% of approved petitions belong to applicant’s with master’s degrees, followed by 35% with bachelor’s degree’s.

Each year, only 65,000 visas are issued. The only exception to exceed the limited issuance of H-1B visa’s is if an applicant has a master’s degree/equivalent or higher. Only 20,000 applicants with the master’s degree or higher qualifications are issued visas.  In general, the demand for this visa far outweighs the availability of the visa itself.

How To: The H-1B Application Process

If you are a foreign national interested in bringing your specialized knowledge, talents and skills to an industry or occupation in need in the United States, the H1-B visa may pave the way.

First and foremost, the aforementioned personal and occupational qualifications listed by USCIS must be fulfilled. If these qualifications are satisfied, the H1-B Electronic Registration Process follows. This newly introduced process was established to address the overwhelming visa demand and insufficient visa availability.

Once registered, USCIS will eventually advise if there are sufficient visas available to continue with the process. If so, the H-1B application continues the second phase of the process at the Department of Labor (herein after DOL).

By this point, your prospective employer must submit Form ETA-9035E, or a Labor Condition Application, to the DOL. The purpose of this submission ensures that any prospective employer pays nonimmigrant workers the prevailing wages or higher, that benefits are provided, and that appropriate working conditions are ensured for the extent of employment, among other required conditions of employment.

If and when approved, the third step reroutes back to USCIS, where your prospective employer is required to file form I-129, Petition for a Nonimmigrant Worker. Once again, information regarding employment, location, wages, and more are provided to ensure that any employer fulfills the occupational requirements, wage standards and more.

Finally, and contingent upon Form I-129’s approval, the visa application itself. If not already present in the United States, this will lead you to the Department of State (DOS), where upon approval of this final application, will issue you a visa to legally enter the United States.

Once granted your visa, you are allotted up to 3 years of temporary presence and authorized employment, which has the option to be extended to 6 years. With family, derivative applications may be concurrently filed so that spouses and children may join you in the United States. Finally, your real work begins!

Life With An H-1B Visa. Now What?

There might be questions that remain once H-1B status is granted, or for those already working with a visa for some time.

To comply with the requirements of your time in the United States you must:

• Remain at your place of employment, within your occupation as noted in your applications. Should there be any changes within your occupation or to your occupation itself, they must be reported.
• Have a valid passport at all times
• Update USCIS and any other relevant entities of any changes in address or communication forms

If you want to extend your pre-existing status, you must refile Form I-129 and provide proof of prior approval. If not, you must leave by the specified date on the approval notice. You do not want to fall out of status and accrue days of unlawful presence, as it may jeopardize future entries into the United States as well as future visa applications.

Having the visa means you are still allowed to travel in and out of the United States, but you must ensure you have proper documentation.

Finally, H-1B visas are recognized as having “dual intent,” meaning applicants may potentially obtain legal permanent residency (a green card) in the United States through other immigrant applications, depending on each person’s specific circumstances. Not every visa status carries dual intent, so the H-1B proves unique in this sense.

Overall, the H-1B proves to be a significant employment and diversification tool to the U.S. workforce and economy. It is also a significant path for those outside of the United States looking for a life changing opportunity, with specialized knowledge to contribute.

Please note – none of the above should be regarded as legal advice. If you are interested in pursuing an H-1B visa, please consult with an attorney.