H-1B Visa Requirements and Application Process

If you have any questions about the H-1B visa, feel free to email me directly at contact@ashoorilaw.com. I’m very responsive via email and would be happy to answer your questions.

What is the H-1B Visa?

The H-1B visa is a special visa that allows foreign nationals to enter the United States to perform “specialty occupations.”

A specialty occupation is one that generally requires, at minimum, a bachelor’s degree (or higher) in a specific specialty or its equivalent. This may be demonstrated through a combination of education and qualifying, specialized work experience, depending on the specific facts and evidence.

This work can be in, but is not limited to, any of the following fields:

• Architecture
• Engineering
• Mathematics
• Physical sciences
• Social sciences
• Medicine
• Health
• Education
• Business
• Law
• Accounting
• Theology
• The arts

H1B visa status is generally granted for up to three years initially, with a possible extension of up to three more years (for a typical maximum of six years). Some cases may allow extensions beyond six years, depending on H1B visa requirements.

Those on an H1B visa are eligible to bring their dependent spouse and children, who would hold H-4 status.

H-1B visa holders may change employers if they satisfy H-1B visa requirements. But they must meet certain requirements. H-1B visa beneficiaries may also pursue permanent immigration status while meeting H1B visa requirements, as it is a dual intent visa.

What are the benefits of the H-1B visa?

There are many benefits to having an H1B visa. Here are just a few:

What are the requirements for the H-1B visa?

There are many conditions to meet for an H1B visa. An immigration lawyer can help you determine if you meet these provisions. Our office can also help you organize evidence to prove eligibility.

Please be aware that those working on an H1B visa could be subject to random site checks. This is to ensure the information provided to the U.S. government was correct.

You must have a job offer from a U.S. company.

The employer must extend a bona fide job offer to the beneficiary. This can be through a written contract or, if there is no written contract, through a summary of an oral agreement.

Additionally, there must be evidence to support the need for the beneficiary.

There must be a valid employer-employee relationship.

This is an important and mandatory condition. For valid employer-employee relationship, there must be employer control. Control is the ability of the petitioner to determine when, where, and how the beneficiary completes his/her duties.

USCIS may deny a petition if the evidence does not establish a valid employer-employee relationship or if the beneficiary will not be employed and supervised by the petitioner as required.

It is difficult to support an employer-employee relationship when the beneficiary is off-site. Yet, a valid relationship can exist if the petitioner controls the beneficiary’s work schedule and has regular contact. A contract or other document detailing the terms and conditions of the job may show an employee-employer relationship.

The focus will be on whether the position qualifies as a ‘specialty occupation'

Specifically, USCIS will determine if the position requires at least a bachelor’s degree or its equivalent.

Among the tools commonly cited by adjudicators are the Department of Labor’s Occupational Outlook Handbook (OOH) and the O*NET system, which may help show the nature of the job duties and typical industry educational requirements. The Dictionary of Occupational Titles is less frequently relied upon in current practice.

The emphasis is not on the job title, but on the job duties of the individual applicant. Here, the job description will be carefully analyzed. This includes the specific tasks, demands, duties, and actual requirements of the position.

Positions with the same title can result in different adjudications from USCIS. This is because of USCIS’ focus on the job description and duties.

The job must require a bachelor’s degree (or higher) in a specific field of study related to the occupation. Not all foreign degrees titled “bachelor’s degree” are equivalent to a U.S. institution’s bachelor’s degree.

USCIS may require a credentials evaluation of your foreign transcript and degree. This can help provide evidence that you meet the H-1B bachelor’s requirement. USCIS may require a credentials evaluation of your foreign degree and transcripts. Evaluations are typically prepared by independent credential-evaluation services. AACRAO EDGE is a reference resource that evaluators may use, but it is not itself a credentials evaluation.

It may be useful to highlight the relevant coursework in your transcript and tie it to the petitioner support letter.

You must have paid all outstanding fees.

For an H-1B petition, the employer must pay all relevant fees. Provide the reasoning in your cover letter if a designated fee is not required.

You must have licensure (if required by federal, state, or local law).

If the position requires a license: the beneficiary must be licensed prior to the H1B visa approval. If not, provide evidence demonstrating a technical problem for the delay. Note that restricted licenses are only valid for one year or until the license expires, whichever is longer. An approval cannot exceed the validity period of a temporary license.

Those in healthcare professions should be aware that state guidelines supersede OOH requirements. Those primarily involved in research or teaching (not patient care) do not need a license. Additionally, some other exceptions may exist for those in healthcare professions.

Note that having a license does not equate a specialty occupation. Some nursing roles may qualify as specialty occupations depending on the position requirements and facts of the case, while others may not. Licensure alone does not determine whether a position qualifies as a specialty occupation. Additionally, not all specialty occupations require a license. You will not be discriminated against for not having a license if it is not required for your position.

H-1B Visa Numerical Limitations

One thing you should be aware of is the numerical limitation on H1B visas. Every year, 65,000 H-1Bs are made available, with an additional 20,000 visas reserved for those with advanced degrees.

For cap-subject cases, if a registration is not selected, the employer generally cannot file an H-1B cap petition for that beneficiary for that cap season. Furthermore, any petition missing mandatory documents and/or fees will be rejected as well. This means that it is critical to be on top of your H-1B visa application process. An immigration lawyer can help ensure that you maximize your likelihood for success.

Due to the lottery, many qualified applicants may never be reviewed. Reform has been pushed to change this process. USCIS may update how the H-1B cap registration and selection process works from year to year. Employers and beneficiaries should follow the registration and filing instructions for the specific cap season.

Finally, it is important to note that there are some exceptions. Employees for the listed organizations are not counted toward the cap on H1B visas. These organizations are also not subject to the ACWIA fee:

• Institutions of higher education, or nonprofits related to higher education; and
• Nonprofit or governmental research organizations.

Who files the petition?

A U.S. company will file the petition on behalf of a foreign national who will receive the H1B visa. The U.S. company is called the petitioner. The foreign national is called the beneficiary.

A petitioner must:

• Have extended a job offer to the beneficiary;
• Have a valid employer-employee relationship with the beneficiary; and
• Have an Internal Revenue Service Tax identification number.

However, multiple companies in the same corporate family can submit a petition for the same beneficiary. Here, each entity must have their own Federal Employer Identification Number. Additionally, they must have their own legitimate need to hire that beneficiary.

It may also be possible to have an agent file an H-1B petition. This person acts on behalf of the petitioner. An agent can file on behalf of multiple employers if the beneficiary will work with more than one entity. Note that if an agent files the petition, all requirements must still be met.

H-1B Visa Process

The H1B visa is a multistep process. The following is a general guideline followed by a more detailed explanation:

1. Apply for H1B visa Registration period
2. If selected in lottery, submit an H-1B visa application
3. Receive approval
4. If abroad, submit a visa application
5. Begin work in the United States

Registration Period: In recent years (beginning FY2021)

In winter 2019, DHS implemented the H-1B CAP electronic registration rule. This applies to all employers applying for an H-1B petition on behalf of any potential future H1B visa employees. Note that this registration rule also includes the advanced degree applicants.

For all H-1B cap-subject petitions, a separate registration application is required. This must be done for each potential worker. If the electronic registration application is selected, petitioners can then submit Form I-129. Previously, petitioners had to be submit the I-129 every year, even without knowing whether their petition was chosen.

After Registration (if required) and Selection

The petitioner must file Form I-129 (Petition for a Nonimmigrant Worker) with the appropriate USCIS service center as listed on the official instructions.

Current USCIS filing instructions should be followed carefully (including whether copies are required and where to file). Separate consular processing (visa stamping) is handled later through the Department of State.

The appropriate USCIS delivery address will vary. Please go to USCIS.gov and check the filing location based on your employment details. An immigration lawyer can assist you in determining where your petition should be mailed.

Receive an approval

When your petition is approved, you will receive an approval notice via Form I-797.

However, if the new evidence allows USCIS to determine all conditions for an H1B visa are satisfied, a Form I-797 with approval of an H-1B petition, will be rendered. Approved H-1B petitions are valid for up to three years or through the validity period of the H-1B petition, whichever is shorter. Please be aware that an H-1B petition can be revoked if any of the facts listed in the petition substantially change or were fraudulently stated.

Submit a visa application

Upon receiving the approval, the foreign national can schedule an appointment at a U.S. consulate. Consular posts commonly issue H1B visas up to approximately 90 days before the petition start date, but procedures may vary by post.

Applicants should confirm current guidance with the applicable U.S. consulate when scheduling. Upon scheduling a consular interview, the foreign national will meet with a U.S. consular officer and show them their I-797 approval.

Since the conditions for a H1B visa were determined to have been met with the approval of the petition, the focus of the interview would be on the individual’s eligibility. The beneficiary should bring a copy of the petition and evidence of his/her specific qualifications. Different consulates and individual situations require different forms

Additionally, please be aware that visas do not have to be issued for the full length of the petition’s validity. You will need to check the visa reciprocity schedule with the Department of State to see how long your visa stamp will be valid for.

Begin work in the United States

H1B visa workers may be admitted up to 10 calendar days before the requested employment start date (provided all else is in order). If the employment ends early (for example, termination by employer or by the worker) and you are not in violation of status, you may be eligible for a grace period of up to 60 calendar days (or until your I-94 expires, if earlier) to depart the U.S., change status, or seek new employment.

This 60-day period is not automatic in all cases and depends on compliance with the regulations. Upon arrival, you should present your passport, H1B visa, and Form I-797 approval. 

You should ensure your I-94 admission record is accurate after entry, noting that I-94 records are often issued electronically. You must also take care to note expiration dates for your status.

H-1B Visa Documents

Many documents are required during the H-1B visa application process. The following is a general list. Please be aware this is not a comprehensive list and the documents you will need will vary based on your individual case:

H-1B Visa Fees

H1B visa fees vary by employer type and filing type and may change at any time. The dollar amounts listed below are general examples and may not reflect the most current USCIS fee schedule or which fees apply to a specific filing. Always verify current fees and applicability before submitting any petition. The following government fees are generally paid by the U.S. employer or its representative, although other incidental costs (such as translations or travel) may be paid by the beneficiary. Always verify current fees using USCIS Form G-1055 or the USCIS fee calculator. Common government fees may include:

• Form I-129 filing fee (amount varies by petitioner type and size under USCIS rules);
• ACWIA training fee ($750 or $1,500 for covered employers, with exemptions in some cases);
• Fraud Prevention and Detection fee ($500 when applicable);
• Asylum Program Fee ($600 for many employers, $300 for small employers, and exempt for qualifying nonprofits, where applicable);
• Public Law 114-113 fee ($4,000 for certain H-1B petitioners meeting statutory thresholds, where applicable);
• Premium Processing (Form I-907) fee (optional; if used, USCIS generally takes action within the premium processing timeframe).

H-1B Visa Processing Time

The amount of time it takes between an H-1B filing and the receipt of an approval, depends on a wide range of factors. These factors include:

• Whether premium processing was elected
• Which type of H-1B visa you are requesting (cap-exempt, advanced degree, regular)
• Which USCIS Service Center you use
• Which U.S. consulate you are being stamped at (if you are abroad)

Processing times vary widely and can range from weeks to many months depending on USCIS workload, case complexity, whether an RFE is issued, and whether premium processing is available and used.

For most cap-subject H-1B petitions selected in the annual lottery, employment typically begins on the petition start date, which is often October 1 for that cap season.

Amending an H-1B Visa

After the beneficiary begins employment in H1B visa status, the petitioner and beneficiary must monitor for any material change in the terms and conditions of employment (such as a significant change in job duties, worksite location, or employer). If a material change occurs, an amendment to the previously filed Form I-129 (or a new petition) may be required.

If there is a change in worksite, a new labor condition application must also be submitted. If the job ends unexpectedly, the beneficiary may stay for up to 60 days or until their current H1B visa status (I-94) expires, whichever is shorter. During this time, the beneficiary may attempt to find a new employer to remain in the U.S. but may not work unless and until a new, qualifying petition is filed and they are authorized to begin employment.

It is important to identify and address any changes to a beneficiary’s job position or to the U.S. company. Here, an immigration lawyer can help you determine what steps are required to be in compliance with the H1B visa program.

The H-1B petition is typically granted for up to three years initially (though sometimes shorter). If eligible, an extension can be filed for another period (commonly up to three years), and the extension must be filed while the beneficiary remains in valid H1B visa status.

The extension does not have to be granted and does not have to be for the full three years. To strengthen the application, submit documentation showing the continued need for the H1B visa beneficiary.

Items such as (but not limited to) copies of pay records, work schedules, evaluations, and work produced by the beneficiary can be helpful.

Recapturing Time

As stated, H-1Bs are valid for a period of up to six years. Yet, you should note that time spent in L status counts toward this six-year time period. However, this six year maximum only counts for time physically spent in the United States. If a beneficiary can demonstrate that they spent time outside the United States, that time does not count toward the six-year H-1B maximum. This time can be “recaptured” and used towards further extending their H1B visa time.

H-1B Visa to Green Card

While on an H-1B visa, you can apply for permanent resident status. Furthermore, those awaiting an immigrant visa priority date may be eligible to stay in the United States on an H-1B for longer than six years. You may also be eligible to hold H-1B status for longer if you have an approved EB-1, EB-2, and/or EB-3 petition.

If you have any questions about the process of going from an H-1B visa to permanent resident status in the United States, an immigration lawyer, such as myself or another member of my team, can provide further information.

H-1B Visa Exceptions

Citizens of Chile and Singapore may seek the H-1B1 classification under separate free-trade-agreement provisions. H-1B1 petitions are typically approved for one year and may be extended in one-year increments, without a fixed six-year maximum stay. H-1B1 beneficiaries are not counted toward the 65,000 H-1B cap.

However, each stay and renewal remains subject to adjudication and approval by the relevant authorities. Some jobs that are not considered specialty occupations and are ineligible for an H1B visa may be accepted under the H-1B1 visa. If you believe you may be eligible for an H-1B1 visa, an immigration lawyer, like myself or another member of my team, can assist you further.

Applicants for an H-1B1 visa can apply directly at the consulate or with USCIS (as a change of status). H-1B1 applicants can provide all documentation directly to a consular officer when they seek visa stamping. They need not have approval before their consular appointment.

F1 Visa to H-1B Visa

Our clients commonly change status from an F-1 (student) visa to an H1B visa. If you have F-1 status, you are eligible for one year of practical training following your education.

Those in qualifying STEM fields may extend post-completion OPT (12 months) by an additional 24 months (for a total of up to 36 months post-graduation), subject to eligibility, timely filing, and E-Verify employer participation. This practical training must focus on the theoretical application of your specialized field of knowledge.

This work must be related to the degree you earned. Employers can file H-1B visas for students engaging in practical training who they wish to hire for a longer period of time and who meet all of the requirements outlined herein.

Common FAQs

• What is H-1B visa​?

  The H1B visa is a nonimmigrant work visa that allows U.S. employers to hire foreign workers in specialty occupation positions requiring at least a bachelor’s degree in a specific field. The employer files a petition with USCIS and must meet wage and compliance requirements. Many H-1B cases are subject to an annual cap and lottery system.

• Is H-1B a nonimmigrant visa?

  Yes, the H1B visa is a nonimmigrant visa classification intended for temporary employment in the United States. It is often described as allowing dual intent, meaning pursuing permanent residence does not automatically violate H-1B status. Eligibility, travel, and timing considerations still require careful planning.

• How long does H-1B visa last?​

  H1B status is generally granted for up to three years initially and can be extended for a total of up to six years. Some individuals may qualify for extensions beyond six years in connection with the green card process. Validity depends on petition approval and maintaining proper status.

• How do I apply for H-1B?​

  H1B visa applications are initiated by a U.S. employer through a petition filed with USCIS. The employer must obtain a certified Labor Condition Application and show the job and worker meet specialty occupation requirements. Cap subject cases also require selection in the H-1B registration lottery before filing.

• How do I check my H-1B visa status?​

  H-1B petition status can usually be checked online using the USCIS receipt number found on the receipt notice. Employers or attorneys often receive official updates directly from USCIS. For visa stamping at a consulate, status tracking depends on the consulate’s procedures and system.

Conclusion

The H1B visa is one of the most popular avenues that allow foreign nationals to perform specialty occupations in the United States. You should now have a much stronger understanding of the various aspects of the H1B visa, including the H1B visa benefits, requirements, and the visa application process.

If you have any questions regarding the information discussed in this guide or about the H1B visa generally, feel free to email me directly at contact@ashoorilaw.com. I am very responsive via email and I would be happy to help you.