What is H1B Visa

Business Immigration

H1B visa refers to a class of employment-based visa granted to a foreign worker who has been hired for one of the following:

  • specialty occupation; or
  • providing services of exceptional merit and ability relating to a Department of Defence (DOD) cooperative research and development project, or
  • providing services as a fashion model of distinguished merit or ability.
  • There are three different categories of H1B visa
  • H1B Speciality Occupations
  • H1B 2 DOD Researcher and Development Project Worker
  • H1B 3 Fashion Model

Eligibility for HIB:

The eligibility criteria for each of the above categories are as follows:

H-1B Specialty Occupations or H-1B1:

The job must be a specialty occupation and the foreign worker to be employed must satisfy one of the specified conditions.

For a job to be categorized as a specialty occupation, it must satisfy one of the following conditions below:

  • The minimum entry requirement for the position must be bachelor’s or higher degree or its equivalent.
  • The job is so complex that it can be performed only by an individual with a degree or the requirement of a degree is a practice in such industry.
  • The employer normally requires a degree or its equivalent 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.

In order to be eligible to accept a job offer in a specialty occupation, the employee must meet one of the following criteria:

  • Hold a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  • Hold an unrestricted state license which authorizes the employee to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  • Have education, training, or progressively responsible experience in the specialty which is equivalent to the completion of such a degree, and have recognition of expertise in the specialty occupation.

H-1B2 DOD Cooperative Research and Development :This category of visa enables the US Department of Defense to employ foreign workers for cooperative projects involving research and development. In order to qualify as a DOD cooperative research and development project, the job must meet both the conditions below:

  • It must be a part of cooperative research and development project or a co-production project provided for under a government-to-government agreement administered by the DOD, and
  • It must require at least a bachelor’s degree or its equivalent
  • The foreign worker to employed on such a project must fulfil one of the conditions laid down for the applicants of H1B Specialty Occupation visa. Additionally, the foreign worker must have a residence in a foreign country which such worker has no intention of abandoning.

H-1B3 Fashion Model

If you are a fashion model of distinguished merit and ability and the job requires a fashion model of prominence, then you are eligible for a H-1B3 visa.

How can you apply for an H-1B visa?

In case of H-1B Specialty Occupation or H-1B3 visas, the prospective employer must first file the Labor Condition Application (LCA) to the Department of Labor attesting to compliance with the requirements of the H-1B program. Once the Department of Labor provides the certification, the employer must then file a petition for a Non-immigrant Worker with the US Citizenship and Immigration Services, along with the certified copy of the LCA.

In case of an H-1B2 visa, LCA is not required to be filed by the employer and the employer can directly file the petition for a Non-immigrant worker.

Once the petition has been approved, the prospective worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa.

What is a petition?

Prior to applying for a temporary worker visa at the U.S. Embassy, USCIS needs to provide an approved Form I-129, Petition for Nonimmigrant Worker. The petition needs to be submitted by the prospective employer no earlier than 6 months prior to the proposed employment start date. Once the petition is approved, the employer will be sent Form I-797, Notice of Action

When can you apply for a H1B visa?

You can apply for an H1B visa up to 90 days before the petition start date listed on the form I-797. You are allowed to enter US 10 days prior to the start date listed on the I-797.

How many H1B visas are granted each year?

A total of 85,000 H1B visas (excluding H1B visas for projects with DOD) are granted each fiscal year. This number is divided in the following manner: there is a regular cap of 65,000 for applicants who have a bachelor’s degree or equivalent, and 20,000 for those with a master’s degree or higher.

H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related non-profit entities or a non-profit research organization, or a government research organization are not subject to the cap.

How long can you reside in US on a H1B visa?

If you have been granted H-1B1or H-1B3 visa, you can reside in US for up to three years. An extension is possible, but the total duration of stay cannot go beyond a total of six years.

In case of an H-1B2 visa, you can reside in US for up to five years. In case of an extension, the total duration of stay cannot go beyond 10 years

What happens to your family when you are on a H1B visa?

If you are accompanied by your spouse and unmarried children under 21 years, they can seek admission in the H-4 non-immigrant classification.

Can you change jobs while on a H1B visa?

An H1B visa holder can seek a change in employment with a new employer, provided that the new US employer applies for the H1B transfer visa application on behalf of the worker. There are no limits on the number of times you can seek a transfer of your H1B visa.

In case you are dismissed by your present employer, then you will need to find a new employment within a grace period of 60 days since you are dismissed and have the new employer complete the necessary paperwork. Failing to do so will result in deportation to your home country. Unless you have quit voluntarily, the employer would have to bear all the costs associated with the deportation. During the grace period, you also have the option to apply for permanent residency in US.

Can you go on a vacation while on a H1B visa?

H1B visa holders are allowed to go for vacations (including sick leave, maternity leave, paternity leave or strike). As H1B visas are multiple entry visas, a H1B visa holder can travel in and out of US multiple number of times within the validity period of the visa.

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