H1B visa and status is a temporary nonimmigrant work visa that allows US employers to hire highly educated foreign workers in specialty occupations. These occupations typically require theoretical and practical application of a body of specialized knowledge and attainment of at least a bachelor’s degree.
Each year 65,000 H-1B visas are available. An employer must register a candidate with USCIS and be selected in a lottery process before filing an H-1B petition. Once selected, candidates are assigned a 13-digit case number that can be used to track the progress of their petition.
The H-1B Cap
Each year, Congress sets aside 65,000 H-1B visas for foreign workers with a bachelor’s degree or higher. It also reserves 20,000 visas for people with master’s degrees from U.S. institutions, and there are a number of other exceptions to the cap.
The cap does not apply if the petition is filed by an institution of higher education or a nonprofit affiliated with one, or if you’re employed at a government research organization or other non-profit organization that’s connected to an institute of higher education. In addition, if your prevailing wage determination is certified by the DOL, the cap does not apply.
Once your H-1B petition with change of status is approved, and your SEVIS record is updated, you will be in “cap gap” and you can begin work. If your petition is denied, withdrawn, revoked, or not selected, or if you’re rejected for consular processing, the “cap gap” extension will end and your work authorization will expire.
How to Apply for the H-1B Visa
The process begins when a US employer hires a foreign worker to fill a position. The employer must file a Labor Condition Application (LCA) with the Department of Labor to demonstrate that the job meets the legal requirements. This is done electronically through the iCERT Portal System.
Once the LCA is approved, the employer files a petition with the USCIS to request an H-1B visa for the employee. The employer must pay a fee to the USCIS. This can vary depending on the type of petition filed and the amount of time needed to adjudicate it. The petition must include the name and contact information of the beneficiary, a description of their job duties and responsibilities, an educational background, and prior work experience in the field.
If the petition is filed as a Change of Status, and the scholar is currently in another nonimmigrant status such as F-1 or F-2, then they must remain in their current nonimmigrant status until the H-1B petition is adjudicated by the USCIS. If the petition is filed abroad, then the beneficiary must attend a USCIS interview and get a visa stamp on their passport at a US Embassy or Consulate.
Employer Requirements for the H-1B Visa
H-1B visas permit employers to hire nonimmigrant alien workers to perform temporary services in specialty occupations. The law limits the number of H-1B visas available each year to 65,000 regular visas and 20,000 visas for applicants with advanced degrees from qualifying institutions.
In order to sponsor an employee for an H-1B visa, the employer must submit to the Department of Labor a Labor Condition Application (LCA) specific to the job and location in which the worker will be employed. The LCA includes information about the job, such as the minimum education and experience requirements, and the wage level of the position.
In addition, the employer must certify that it will pay the beneficiary at least the prevailing wage for the occupational area in which the worker will be employed and that the job will not displace any U.S. worker in the same occupation at the same wage level. If there is a change in the terms of employment, such as a shift to a different department or a change in title, an amended LCA must be filed.
Change of Status to H-1B
Once the H-1B petition is filed and approved by USCIS, you are in H-1B status and can begin work. This work authorization is shown in your EAD card. This visa type allows you to stay in the United States and travel internationally and domestically while you are employed. This is a nonimmigrant visa, but it does have certain limitations and is employer-specific. If you change employers, your new employer must file a brand new H-1B petition and wait for approval, and this process can take up to six months.
It is important not to travel outside the United States while your change of status request is pending with USCIS. This can result in a 221g and Administrative Processing which can significantly delay the processing of your visa. Contact ISO if you have any questions about your specific situation. Our experts can help you navigate this complicated process.