Legal Guide

Latest H-1B Visa Rules: All Questions Answered

United States of America is famously touted as the land of opportunities. People and talent of all nature have preferred the US shores for fulfilling their life goals. Thousands of people apply to enter the United States each year for different purposes such as international marriage or occupational purpose. To regulate the flow of immigrants into the country, the US government mandates all such applicants to furnish H-1B visa at the time of their arrival.

The U.S. H-1B visa is a non-immigrant work visa that allows companies to employ highly skilled overseas workers in specialty occupations. Here is a complete guide for individuals who are interested to obtain a visa. For detailed information, consult an expert immigration attorney.

What is H-1B?

The H-1B is a U.S. non-immigrant visa classification that allows individuals who are not permanent residents or citizens of the U.S. to get employability in a specialty occupation for up to 6 years. The visa is employer-sponsored, which means the employer must apply for the visa on behalf of the employee via the United States Citizenship and Immigration Services (USCIS).

“Specialty occupation” is defined as job roles that require technical or theoretical expertise in specialized fields, such as engineering, IT, accounting, mathematics, finance, medicine, science, architecture, etc. It also requires the employer to pay the actual wage or the prevailing wage, whichever is higher.

Who are Eligible to Obtain H-1B Status?

The visa is available to any person who has been offered temporary employability by a U.S. employer for a specialty job position. The following requirements are applicable here:

  • The candidate must have an advanced educational qualification such as a 4-year Bachelor’s degree or equivalent, or a Master’s or Doctoral degree from an accredited college or university
  • Vocational skills or advanced training in the specialty occupation
  • The candidate must qualify for working in R&D projects of the Defense Department in the U.S. or any other government position
  • The specialty job role must be so unique or complex that it can only be performed by an individual having an advanced degree, or the degree eligibility for the job should be common to the industry
  • The candidate must hold an unrestricted certification, registration, or state license which validates them to professionally practice the specialty occupation and also remain engaged in that field with the purpose of intended employment
  • Have academic knowledge, experience, or training in that specialty equivalent to the completion of such a degree
  • Have recognition of knowledge and experience in the same specialty by working in responsible positions that are directly associated with the specialty

What Types of Specialty Occupations Qualify for H-1B Visa? 

According to legal experts, a broad spectrum of specialty occupations qualifies for H1B visa status. These include professional-level occupations like social sciences, biology, engineering, mathematics, IT, accounting, business administration, etc. Whatever be the occupation, the minimum requirement for the candidate must be a Bachelor’s degree to qualify for the visa. However, some job positions may require an advanced degree, such as a Master’s or PhD may be required.

I Have a Bachelor’s Degree. Do I Qualify for H-1B Status?

Not necessarily. Getting approved for the visa requires you to have a bachelor’s degree or higher in a specialized field as recognized by the U.S. Citizenship and Immigration Services. You must have a degree in that field to qualify for the H-1B visa. Additionally, individuals cannot directly apply for this visa. An employer must file a petition with the USCIS to grand entry of the employee, provided he/she has the required qualifications and capabilities.

Is There Any Minimum Salary for a Specialty Occupation in H1B Status?

Yes. The employer who has filed a petition for hiring H-1B workers must submit documentation and certify to the U.S. Department of Labor that it will pay the actual wage or prevailing wage, whichever is higher. The actual wage is the salary an H1B employee gets for similar occupations at the same location as of the intended employment. The prevailing wage is the salary paid for similar specialty occupations in the same geographic area as of the intended employment.  

The employer also needs to certify that they will not displace any U.S. worker to recruit the H1B applicant, and that there are current work stoppages or strikes in the occupation in which the candidate will be employed.

How Long is the H1B Visa Applicable?

An employee carrying an H1B visa can remain in the United States for up to 6 years. Initially, you get visa approval for three years, and can then be extended for additional three years if required.

During this time, if the visa holder loses his/her job, they can stay in the U.S. for up to 60 days.

How Does the H-1B Visa Works?

To apply for the visa, you must have a valid job offer from a U.S.-based company or organization. You cannot apply for the H-1B status directly. The U.S. employer seeking H1B professionals must submit their petitions and the USCIS controls this allocation. Additionally, you must fulfil all eligibility criteria to apply for/get the visa.

Can I Apply for a Green Card While on an H1B Visa?

Although H1B is a non-immigrant visa, it has dual intent. This means that an H1B visa holder can apply for and get a U.S. Green Card while in the United States on an H-1B visa. If you want to remain in the country for more than 6 years, you can also apply for permanent residency in the U.S. to get a Green Card. However, if you do not get permanent residency before the expiration of the H1B visa, you must leave the country and reapply for another H or L visa after one year.

Can I Change My Job After I Get an H-1B Status?

No. The H1B status is employer-specific and employer-sponsored. That means you need to have a legitimate job offer from the employer to apply for the visa. It requires to work only for the employer who has filed the petition.

The H-1B visa has undergone major makeover in the last couple of years. The applicants must refer to the official website to avoid last minute setbacks.

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