The H-1B visa is for professionals with at least a bachelor's degree or equivalent experience, and fashion models. The H-1B visa permits a stay of up to 6 years for the professional worker and dependent family members (H-4 visa).

Not all positions where a bachelor's degree is required qualify for H-1B status. Some general business positions, even at a higher level, are held not to qualify because they are not specialty occupations. However, business subspecialties, such as marketing and finance, may qualify for the H-1B visa.


H-1B Visa Requirements

1. The H-1B job is in a specialty occupation that requires at least a bachelor's degree.
2. The H-1B worker holds a bachelor's degree or higher, or the equivalent experience, in the appropriate field.
3. The employer will pay the prevailing wage for the H-1B position, which can be found at the Online Wage Library.


H-1B Visa Filing Process

Step 1. The prospective employer files a labor condition application with the U.S. Department of Labor. In the labor condition application, the employer certifies the worker will receive the prevailing wage or higher, that there is no strike or lockout at the place of employment, that working conditions will not adversely affect U.S. workers, and that notice has been provided to the union or workers at the place of employment.

The labor condition application is filed electronically and is usually certified by the U.S. Department of Labor within minutes.

Note that this is different from the labor certification application in the green card process. There is no testing of the labor market through newspaper ads, etc.

Step 2. The prospective employer files an I-129 H-1B Petition for a Nonimmigrant Worker with Citizenship and Immigration Services.

The H-1B petition includes:

1. Form I-129, Petition for Nonimmigrant Worker
2. Filing fees
3. Certified Labor Condition Application
4. Letter of support from the employer
5. Proof that the worker meets the minimum requirements for the position (degrees, transcripts, educational evaluation, license, etc.)

If the H-1B worker holds a foreign degree, the degree will need to be evaluated to see if it is the equivalent of a U.S. Bachelor's degree. If the H-1B applicant is relying on experience to make up for some or all of the degree requirement, this experience will also need to be evaluated. Normally, three years of progressively more responsible work experience counts towards one year of university education. Evaluations usually cost $100-$300.

The H-1B petition normally takes two to four months to be processed. Premium processing is available to guarantee a decision in two weeks (unless there is a request for additional evidence). Premium processing costs $1000.

If the H-1B workers is already in the United States in valid nonimmigrant status (i.e. not an overstay), then this worker may be able to change status in the United States through the I-129 H-1B petition. In most cases, the person will not need to return home for a visa.

Step 3. A candidate outside the United States must apply for an H-1B visa at a U.S. Consulate.

The H-1B visa application includes:

1. Form DS-156, Application for a Nonimmigrant Visa
2. Form DS-157 (if male between the ages of 16 and 45)
3. Filing Fee of $100 + reciprocity fee, if any
4. Copy of Notice of Approval of H-1B Petition
5. Copy of the I-129 H-1B Petition and supporting documents
6. Passport
7. One passport-style photo

Consular processing for the H-1B visa normally takes a few weeks, depending on the schedule of the Consulate.

Upon entry, the H-1B worker will be given a stay that ends when the need for the worker ends, as stated in the nonimmigrant visa petition, for a maximum of three years. H-1B status may be extended for a total of six years, or longer, if a labor certification application has been timely filed. The H-1B worker may come to the United States 10 days before the authorized work period and stay 10 days later.

Note: If the H-1B worker is terminated early, the employer is liable for paying reasonable transportation costs home.


Tthe H-1B Visa Cap and Alternatives to H-1B Status

There are only 85,000 H-1B visas available each fiscal year, and they often run out before the start of the fiscal year (October 1). You can apply for one of these visas six months before the start date of work, making April 1 the earliest date to file. To check the latest visa availability, look at the USCIS current cap count.

Some H-1B applications are not counted against the cap. These include applications by institutions of higher education, affiliated nonprofits, or nonprofit or governmental research organizations; applications by J-1 holders who have obtained a waiver through the State 30 program; and applications for extensions of stay or new employment where the person has already been counted in the last six years and the person has not been out of the country for a full year.

Unless you qualify for an exception, you will have to seek an alternative until more become available. H-1B alternatives include the J-1 Exchange Visitor Visa, the L-1 Intracompany Transfer Visa, Optional Practical Training on the F-1 Student Visa, and the E-2 Treaty Investor Visa.