US H1-B Temporary Work Visas
What is an H1-B visa, and how do you qualify for one?
U.S. H-1B non-immigrant visas are for skilled, educated individuals employed in specialized occupations outside of the United States. The H-1B visa enables foreign workers to temporarily work for a specific employer in the United States.
US H-1B Temporary Work Visas
Recipients of an H-1B visa can remain in the U.S. for three years at a time, but the stay can be extended to a maximum of six years. In certain circumstances, such as when a labor certificate is pending or immigration petition is approved, individuals can apply for more extended stays. H-1B visa holders are also able to recapture time spent abroad to extend their legal status past the expiration of the original approval notice.
The only requirement during the length of the stay is that the individual continues to work for the sponsoring employer. In order to stay compliant in status, the foreign national must submit an H-1B Change of Employer (COE) petition to the government when changing employers.
H-1B Visa Eligibility
In order to be eligible for an H-1B visa, an individual must have a Bachelor's degree in their specific field or an equivalent of 12 years’ worth of experience. In fields where state licensure is mandatory, such as in law, the individual must have the necessary license, as well. The types of "specialized occupations" applicable to this type of visa include:
Fashion modeling careers are covered under H-1B3 visas, provided that the worker is “a fashion model of distinguished merit and ability” and that the position requires “a fashion model of prominence.”
When Can You Apply for an H-1B Visa?
Individuals themselves cannot apply for an H-1B visa. Rather, an employer must petition for a visa for a specific employee. If an individual meets the requirements, employers can start applying for a visa no more than six months before the expected start date.
There is a yearly cap on the number of H-1B visas issued. The annual cap is determined by Congress and is currently limited to 65,000 visas. Up to 6,800 visas are set aside as part of trade agreements with Chile and Singapore. Any unused visas from this allotment return to the pool for the next fiscal year.
The U.S. fiscal year begins in October, and all petitions that are subject to the cap are required in April of the previous year. For the fiscal year 2018, United States Citizenship and Immigration Services (USCIS) began accepting petitions on April 3, 2017. The window closes quickly: this year, applications hit the cap in four days.
The first 20,000 petitions filed for beneficiaries with a Master’s Degree or higher are exempt from the cap. Workers employed by a higher education institution (such as a college or university), a nonprofit organization, or government research organization are also exempt from the annual cap. Those who are H-1B cap-exempt are able to petition all year. However, these visas also go quickly, so it’s best to file promptly.
Protections for H-1B Workers
Employers must pay workers on an H-1B visa either the wage paid to similarly qualified workers or the prevailing wage in the geographic location where work takes place. Employers must also provide safe working conditions for all workers.
In the event that the employer terminates the worker’s employment during the period covered by the H-1B visa, the employer must pay reasonable costs for return transportation. This applies in the event of a layoff or termination, but not in the event that the worker resigns their position voluntarily. USCIS encourages visa holders to contact the service center that processed their application if they feel these requirements haven’t been met.
How to Apply for an H-1B Visa
Workers cannot apply for H-1B Visas themselves. A sponsoring employer applies on their behalf no more than six months before the requested employment start date.
To apply, sponsoring employers must file the appropriate paperwork. For a cap-eligible, specialty-occupation applicant, this includes the Form I-129 petition, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement. These forms for employers are available on the USCIS website.
Depending on the beneficiary’s occupation—e.g., fashion model, DOD researcher, etc.—the sponsoring employer may also have to file supporting documentation, including a Labor Condition Application (LCA) and evidence of the beneficiary’s educational background. The USCIS website includes the latest instructions and forms for each occupation.
The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.