What is an H-1B Visa?

The H-1B visa is a non-immigrant visa that allows US-based companies to employ foreign workers in specialty occupations requiring theoretical or technical skill sets. This type of visa is most commonly used by industries such as engineering, mathematics, and information technology due to their reliance on highly specialized knowledge. Understanding the specifics of the H-1B visa program can greatly ease the process of hiring international talent.

H-1B Visa: Understanding the Intent

The intent of the H-1B visa is to enable US companies to hire foreign talent for specialized roles that are hard to fill with domestic workers. These roles often require a high degree of specialized knowledge or technical expertise. Therefore, the visa helps businesses address the skill gaps they face and assists them to remain competitive in the global marketplace.

It is also intended to provide opportunities for skilled foreign professionals to work and reside in the U.S., and eventually apply for permanent residency if they desire. It is designed to be a mutually beneficial arrangement as the U.S. companies gain needed talent, and foreign professionals receive an opportunity to work in the U.S. market.

The use of the H-1B visa can be better understood in the context of the tech industry. The explosive growth of this industry has created a high demand for specialized roles such as software developers, data scientists, and AI experts. These positions often require deep technical knowledge and expertise that are not always available in the local U.S. candidate base. 

Companies like Google, Facebook, and Microsoft have significantly benefited from H-1B visas by hiring skilled foreign professionals to fill these roles, thus fostering innovation, and maintaining a competitive edge in the tech industry.

Eligibility Criteria for H1B visa 

The application for an H-1B visa is a multiple-step process and requires collaboration from both the U.S. employer and the foreign employee. The eligibility for this visa type, in detail, covers the following specific aspects.

1. Job Offer from a US Employer

The primary eligibility requirement is that the professional must have a job offer in hand from a U.S. employer for a role that qualifies as a ‘specialty occupation.’ The U.S. employer acts as the sponsor and proceeds to file the initial application.

2. Specialty Occupation

The job must qualify as a specialty occupation. According to the regulations defined by the U.S. Citizenship and Immigration Services (USCIS), a ‘specialty occupation’ is one where the nature of the specific duties is so complex or unique that it requires the knowledge and skills of an individual with a bachelor’s degree or higher. 

Examples of these occupations could range from architecture, engineering, and mathematics to social sciences, biotechnology, and health/medical fields.

3. Higher Education or Equivalent Work Experience

The foreign professional must possess a bachelor’s degree or higher in the specific specialty, typically related to the field of the proposed job. In the absence of such a degree, the professional should demonstrate equivalent qualifications via work experience. 

For instance, it is generally considered by USCIS that 3 years of professional work experience equates to 1 year of collegiate study. Meaning, if the professional does not have a degree but twelve years of work experience in a related field, this could be considered equivalent to a four-year bachelor’s degree.

4. License or Certification

If the job requires a state or professional license to practice, the foreign professional must already hold that license.

5. Labor Condition Application (LCA)

The U.S. employer needs to get an approved Labor Condition Application (LCA) from the Department of Labor (DOL) before filing the H1-B petition with USCIS. In the LCA, employers attest that they will pay the foreign worker the prevailing wage in the area for the work being done and that hiring the foreign worker will not impact the working conditions of the workers who are similarly employed.

Meeting these criteria does not guarantee the receipt of an H-1B visa, as the number of these visas granted each year is subject to a cap. Exceptions include certain non-profit organizations and higher educational institutions. If the number of applications exceeds the cap, the visas are granted through a lottery system.

How to Apply for an H1B Visa?

The application process for an H-1B visa involves the following steps:

Find a H-1B Sponsor

You must first find a job with a US employer who will sponsor your H-1B visa. The employer must be willing to hire you and file an H-1B petition on your behalf.

Verification of Job Type

The job offered by your employer must qualify as a “specialty occupation”. This refers to a job that utilizes highly specialized knowledge and for which a Bachelor’s degree (or its equivalent) is typically required, such as fields in engineering, mathematics, physical sciences, computer sciences, medicine, etc.

Employer Files a Labor Condition Application (LCA)

Your prospective employer is required to file an LCA with the Department of Labor (DOL). This document contains details of your employment such as your job duties, your salary (which must meet or exceed the ‘prevailing wage’ in your field), where you’ll work, and affirmation of no adverse impact on working conditions. Once DOL approves the LCA, preparations may begin for the visa petition.

Employer Submits Form I-129

Your employer is obligated to file Form I-129 (Petition for a Nonimmigrant Worker) with the U.S. Citizenship and Immigration Services (USCIS) on your behalf. This petition includes documents proving your eligibility and the nature of the job, as well as an approved LCA. This form has fees that the employer usually pays. This must be done on or after April 1 of each year.

Lottery Selection

The number of H-1B visas is limited to 65,000 per year with an additional 20,000 for professionals with a US master’s degree or higher. If the number of applications exceeds this cap, there’s a random selection process or lottery. If your petition is selected, it moves forward for adjudication by USCIS.

Application Adjudication by USCIS

After the lottery selection, USCIS officials review your H-1B petition. They may request additional evidence or information. USCIS will then approve or deny the petition based on their assessment.

Attend the Visa Interview

Upon the approval of Form I-129, the relevant U.S. embassy will call you in for an interview. They will check your documents and ask a few questions. After this, they will decide whether you qualify for the H-1B visa or not.

Remember each case may have a unique scenario, involving factors that could complicate the process. Hence, it is advisable to go through this process with expert assistance. Also, regardless of eligibility and selection in the lottery, approval of the visa depends on the discretion of USCIS officials.

The Numerical Cap for H1B visa 

The H-1B visa program has an assigned limit or “numerical cap” on how many visas can be issued each fiscal year. This cap is set to 65,000 visas annually, and this limitation is upheld by U.S. law to maintain control over the number of foreign workers entering the country. The objective of this cap is to balance the opportunities for foreign specialized workers without impacting the job prospects of U.S. workers in similar fields.

In addition to the aforementioned 65,000 caps, there are an extra 20,000 H-1B visas made available specifically for individuals who possess a U.S. master’s degree or higher. This is to encourage highly educated professionals to bring their expertise to the U.S. workforce. 

However, the demand for H-1B visas often far exceeds these limits, which has resulted in the implementation of a lottery system. This system is used to randomly select which of the numerous applications get processed for an H-1B visa each year.

The Benefits of an H1B Visa

• H-1B visa allows U.S. companies to hire foreign workers in specialized or technical occupations such as IT, accounting, medicine, etc.
• Gives employers access to a diverse set of skills from a global talent pool when there is a shortage of domestic talent.
• Many H-1B visa holders are highly educated with at least a bachelor’s degree and many have master’s degrees, PhDs, and other advanced training.
• H-1B workers contribute to the U.S. economy by paying taxes.
• A H-1B visa can be a stepping stone to a green card for permanent residency in the U.S.
• It provides opportunities for foreign workers to experience and contribute to the U.S. work culture.
• H-1B visa holders can bring their spouses and children under 21 to the U.S. under the H-4 visa.
• Unlike many other non-immigrant visa classifications, H-1B supports ‘dual intent’. This means that an applicant can also apply for a Green Card while being a H-1B visa holder.

How Can a Global Talent Acquisition Company Help in Securing an H1B Visa?

Employers should be prepared for the lengthy processing time, fees, and potential for denial. The H-1B visa has become increasingly competitive, as the number of applications often greatly exceeds the cap. Also, changes in immigration policies and political climate may also impact the H-1B visa program.

As a global acquisition company, we at Tarmack provide a wide range of immigration services and help in securing an H-1B visa for companies’ requirements by acting as sponsors and petitioners for their prospective employees. We tackle the intricacies of the application process, taking care of legal and administrative tasks, including filing the Labor Condition Application with the Department of Labor.

We provide financial support for the various fees linked with the H-1B process. Also, we establish solid job offers and guarantee ongoing employment to reinforce the status of our visa holders. Ultimately, if our employees need help with visa renewal or transitioning to a green card, we’re here for assistance.