Working in the U.S. on an H-1B Visa

You are an expert in your profession; you want to experience living in America, but you also want to continue the profession in which you are an expert. Then you are in the right place. The H-1B visa is just for you.

H-1B visa is a temporary visa type in the non-immigrant category that allows institutions, organizations, or employers in the United States to employ foreign workers in jobs that require undergraduate or graduate education.

Although obtaining this visa may seem complicated, it can be obtained easily if you and the company that will sponsor you meet the required conditions.

What are the conditions for an H-1B visa?

1. You must have a bachelor’s or higher degree, and your degree must be equivalent to one from an institution in the United States. If you do not have such a degree, you must have at least 12 years of work experience equivalent to that degree.
2. You have received a job offer from a U.S. employer. (a U.S.-based sponsor company)
3. The U.S. employer has not been able to provide qualified employment for the offered position (meaning they could not employ a U.S. citizen for the role).
4. The job must require specialized knowledge, and you have proof that you are an expert.

You have completed the first step if you meet the above requirements and believe the H-1B visa suits you.

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

H-1B visa is evaluated in two categories: Cap and Cap Exempt.

• H-1B Cap Process

Simply put, the Cap process involves a lottery system, while the Cap Exempt process is outside this lottery system. For the H-1B Cap process, the United States allocates a quota of 65,000 visas each fiscal year (note that there is one fiscal year per calendar year). A lottery held during specified dates determines the individuals selected for this quota. To participate in the lottery, you only need to register electronically between the dates set by USCIS.

If you graduated from a university in the United States with a master’s degree or higher, you can benefit from an additional quota of 20,000 visas allocated explicitly for this category.

Suppose your name is selected in the lottery, and you are eligible to receive an H-1B visa. In that case, the next steps involve your lawyer, an expert in this field, applying to the Department of Labor and USCIS on behalf of your sponsor company within the specified date range.

The first application is submitted to the Department of Labor. If the Department of Labor is satisfied that your sponsor company meets the requirements, the application is typically approved within approximately 1-2 weeks.

The second application is to complete Form I-129 and send it to the USCIS. This process is longer and more detailed compared to the application made to the Department of Labor.

Once Form I-129 is approved, you can complete Form DS-160, schedule an appointment at the relevant consulate or embassy, and obtain your H-1B visa. Make sure that all your documents are complete before your appointment.

• H-1B Cap Exempt Process;

Suppose your sponsor company is a non-profit institution, a government-affiliated research organization, or a qualified university. In that case, your sponsor can employ you without entering the H-1B lottery process. You are not subject to the H-1B cap.

Additionally, suppose your sponsor company is a non-profit organization or a private company with an agreement with a non-profit organization. In that case, you can still get an H-1B visa without entering the H-1B lottery as long as it employs you in these institutions.

Finally, if you are within the initial 3-year period of your H-1B visa and want to change employers, you will not be subject to the H-1B cap.

Advantages of H-1B Visa

• With an H-1B visa, you can work and reside in the U.S. for up to 3 years and extend your visa for up to 3 additional years.
• Although the H-1B visa is a non-immigrant visa, it is one of the visa types that allows you to apply for a green card (permanent residency) later.
• Your spouse and children (under 21 years old and unmarried) can live with you in the U.S. Spouses of individuals holding an H-1B visa can come to the U.S. with an H-4 visa. H-4 visa holders can obtain a work permit (EAD - Employment Authorization Document) under certain conditions. These conditions typically include situations where the H-1B visa holder is in the process of applying for a Green Card and has reached a specific stage. If these conditions are met, the H-4 visa holder can apply for a work permit, and once approved, they can legally work in the U.S., and their children can attend school in the U.S.
• You will receive the same salary as others in similar positions in your workplace.
• If your employment is terminated, your employer is required to provide compensation.

Required Documents for H-1B Visa

Documents can be divided into two categories:

1. Documents Required from Your Employer

The documents your employer must provide may vary, and additional information and documents may be required, but the following documents are generally mandatory.

I. H-1B visa application request

II. Proof that the position to be employed cannot provide qualified employment within the United States.

III. Average salary certificate for the job position for which the employer wishes to employ

IV. Document showing the job offer the company made to you and the requirements of your position

2. Required Documents from You

I. A valid passport

II. Documents proving your eligibility for the offered job.

III. A recent photograph in the required format

IV. If you are subject to the H-1B cap lottery, a document proving that your name was included in the lottery (I-797 receipt number)

V. Form I-129 receipt number

VI. DS 160 non-immigrant visa application form

VII. Visa application fee receipt

Merit Law LLP, with its experienced team, will be pleased to assist you with all types of immigration and non-immigration visa and status change applications upon your request. For more detailed information and assistance, please feel free to contact us.