Non-Immigrant Employment Visas Law

H-1B Visa

Employers in the United States may face challenges finding skilled employees in areas that need specialized knowledge and education. For some jobs, skilled workers in other countries can legally work in the U.S. under an H-1B specialty occupation visa.

Not all workers are eligible for H-1B visas, even with specialized higher education and training. If you are an employer looking for specialized workers or you want a visa to work in the U.S., contact an immigration law attorney for legal advice.

What Is an H-1B Visa?

The H-1B classification is for workers in specialty occupation fields, those who have the ability to work on some defense research and development projects, or those working as fashion models with distinguished ability or merit.

Under federal regulations, employers must pay H-1B nonimmigrant workers what they pay similarly skilled U.S. workers in the area.

Who Is Eligible for an H-1B Visa?

Only certain jobs are eligible for an H-1B visa as a specialty occupation. These jobs fall into three general visa categories:

  • Specialty occupations: These jobs generally require a bachelor’s degree or higher and a “theoretical and practical application of a body of highly specialized knowledge.”
  • Department of Defense (DOD) researcher and development project worker: This visa petition requires a verification letter from a DOD project manager.
  • Distinguished fashion model: This position is only for prominent and distinguished fashion models.

Generally, a U.S. employer wishing to sponsor a foreign worker will apply for an H-1B visa, submit the supporting documents, and pay the visa application filing fees.

What Is the H-1B Visa Lottery?

There is a lottery system for the H-1B visa program. The lottery randomly selects visa applicants for H-1B approval. There are often more applicants than visas available under the annual visa cap. For fiscal year 2023, the government had received enough H-1B applications to meet the cap of 85,000 visas by August.

The H-1B cap doesn’t limit some H-1B employers. Exemptions include government research organizations, nonprofit universities, and nonprofit research organizations.

How Long Does It Take to Get an H-1B Visa?

Hundreds of thousands of people file for H-1B petitions every year. The U.S. Department of Labor and the USCIS must approve those applications. This can take a long time to process and is unpredictable. It can take from six to 10 months or longer. The process is faster with premium processing.

How Long Can I Stay in the US on an H-1B Visa?

For most H-1B visa holders, the initial stay is up to three years. H-1B employees can often get an extension to stay another three years. However, the maximum for most workers with H-1B status is six years.

Can I Bring My Family to the U.S.?

Some family members, such as your spouse or any children under 21, may be eligible to come to the U.S. based on your H-1B visa. The Form DS-160 nonimmigrant visa application is for temporary travel to the U.S. for spouses and children under 21.

In some cases, your spouse may be able to get employment authorization to work legally in the U.S. during your stay on an H-1B visa. For eligibility and to apply, see Form I-765, Application for Employment Authorization.

Can I Get a Green Card After an H-1B Visa?

The H-1B visa is a nonimmigrant visa, which means it’s designed to be temporary. If you want to eventually become a lawful permanent resident (LPR), also known as a green card holder, you can apply for an immigration change of status while you are lawfully present in the U.S.

To get a green card while in the U.S. on a temporary work visa, you must ensure you are eligible to be a permanent resident. There are different types of green card eligibility, including:

  • Family
  • Employment
  • Victim of abuse
  • Refugee or asylee

You may be able to get a green card based on your profession. The priority preference can depend on your abilities, advanced education, national interests, investments, or a specific profession. If you have a family member who becomes a permanent resident or U.S. citizen, you may also be eligible for a green card.

How Can I Get Help With an H-1B Visa?

Getting an H-1B visa can be frustrating because of the long processing times, lottery, and changing employment market. If you tried to get an H-1B visa, but your application was denied, an attorney can help you understand why you were denied and how you can improve your chances for the next petition. If there are problems with U.S. immigration officials, an experienced immigration attorney can represent you in immigration proceedings.

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