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H-1B Visas

The H-1B visa is a type of visa for specialty occupations. It is not easy to get an H-1B visa, but it may be worth the effort if you're eligible. This guide explains the process of getting an H-1B visa, eligibility requirements and more.

What Is an H-1B Visa?

The H-1B visa is a nonimmigrant visa that allows U.S. companies to hire foreign workers to work in specialty occupations. A specialty occupation is one that requires the application of a body of highly specialized knowledge; it also requires a person to have at least earned a bachelor’s degree or its foreign equivalent. There are three classifications for this type of visa: H-1B (for specialty occupations), H-1B2 (for U.S. Department of Defense researchers and development project workers) and H-1B3 (for fashion models). These are different from other types of visas, such as O-1 visas and other types of business visas.

H-1B Visa - Immigration Lawyer H-1B Visa Eligibility

Not everyone is eligible for an H-1B visa. In order to qualify for an H-1B, you must:

  • Have a bachelor's degree or higher in a specialty occupation
  • Have a job offer from a U.S. employer in a specialty occupation
  • Be able to demonstrate that you have the required skills and qualifications for the specialty occupation

The position must meet at least one of the following criteria to be considered a specialty occupation:

  • A bachelor's degree or higher is normally required for the position
  • The industry normally has the same degree requirement for the position
  • For the same position, the same employer usually requires a bachelor's degree or higher
  • The skills required for the position are so specialized and complex that they can only be learned through a prolonged course of study
How to Apply for an H-1B Visa

Many people choose to work with an attorney to apply for an H-1B visa. That's because this type of business immigration can be complex, and because simple errors on paperwork can mean visa denial. When you work with an attorney, they'll fill out and file your forms for you. They'll also help ensure that your company meets the rigid requirements necessary to sponsor a worker in this category.

What Is the Labor Condition Application?

The first step in sponsoring an H-1B worker is for the employer to file a Labor Condition Application (LCA) with the Department of Labor. The LCA is used to ensure that the wages being offered to the H-1B employee are not lower than those paid to other workers in the same occupation in the area of employment, and that working conditions will not adversely affect other workers in the same occupation.

The LCA must be certified by the Department of Labor before the employer can file an H-1B petition with USCIS.

What Is the H-1B Petition?

After the LCA has been certified, the employer then files an H-1B petition with USCIS. The petition must include evidence that the position offered is a specialty occupation, and that the employee has the necessary qualifications for the position.

The Cap on H-1B Visas

There’s an annual limit on the number of these visas each year: 65,000. There are also 20,000 additional visas set aside for foreign workers with a U.S. master's degree or higher. These visas are allocated on a first-come, first-served basis, and the window for submitting petitions opens on April 1 of each year.

Who's Eligible for an H-1B2 Visa?

The H-1B2 visa is for foreign workers who will be performing work relating to a cooperative research and development project or a coproduction project under the auspices of the U.S. Department of Defense.

To be eligible for an H-1B2 visa, the applicant must:

  • Have a job offer from a U.S. employer
  • Be coming to the U.S. to work on a U.S. Department of Defense cooperative research and development project or a coproduction project
  • Have the required qualifications for the position
H-1B Visa - Immigration Lawyer Who's Eligible for the H-1B3 Visa?

The H-1B3 visa is for foreign fashion models who will be coming to the U.S. to work on a fashion show or photo shoot.

To be eligible for an H-1B3 visa, the applicant must:

  • Have a job offer from a U.S. employer
  • Be coming to the U.S. to work as a fashion model on a fashion show or photo shoot
  • Meet the definition of a fashion model of distinguished merit and ability; in other words, they must be a prominent model who's widely recognized
How Long Is an H-1B Visa Good For?

The H-1B visa is valid for up to three years, but it can be extended in certain circumstances. It's important to note that the H-1B visa is not permanent, and after a total of six years, the employee will, in most circumstances, need to either leave the country or obtain a different type of visa.

What Happens If You Change Employers on an H-1B Visa?

If you want to change employers while on an H-1B visa, your new employer will need to file a new petition on your behalf. You can begin working for the new employer as soon as they have filed the petition, and you do not need to wait for it to be approved.

Can Your Family Accompany You to the U.S. if You Have an H-1B Visa?

If you have an H-1B visa, your spouse and unmarried children under the age of 21 may be able to come to the U.S. with you. However, they'll each need an H-4 visa. Your family members will not be allowed to work in the U.S., but they can attend school or college.

Your attorney can help you include your family members in your petition if you want to bring them with you.

Do You Need to Talk to an Attorney About an H-1B Visa?

If you're thinking about coming to the United States on an H-1B visa, we may be able to help you. Call our office today to schedule a free consultation with an experienced attorney who understands immigration law and how it applies in your situation.

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