The H-1B Visa For Highly Skilled Workers: requirements and updates for 2019

If you are a skilled worker the H-1B visa can be a great way to get into the United States to work, and eventually as a path to a green card and permanent residency. However with H-1B visa denials up in the United States, it’s more important that ever to make sure you have everything you need in advance before you apply.

Every spring hundreds of thousands of people apply for an H-1B Visa in order to come and work in the United States.  In 2016 USCIS received a whopping 233,000 petitions for H-1B Visa during the filing period, which begins April 1. Out of those 233,000 people, only 85,000 were picked randomly. As you can see, odds are stacked against you, but here is what you need to know to improve your chances.

What is an H-1B Visa?

An H-1B Visa is an employment-based temporary work visa for specialty occupations. A company must sponsor you; it is not something you can apply for on your own. H-1B Visas are to help US companies attract and employ workers in specialized fields or with specialized skills. USCIS caps these visas at 20,000 for those with a masters degree or higher, and 65,000 for “regular” quota. There are also some fields or businesses that are cap-exempt. Visas are chosen by lottery every April for the following fiscal year (from October 1- Sept 30)

Why should you apply for an H-1B Visa?

Applying for a non-immigrant visa is generally quicker than applying for a Green Card, therefore the H-1B Visa is popular for companies wishing to bring in staff for long-term assignment in the US. H-1B Visa holders also have additional benefits for their immediate family (see below).

What are the requirements to get an H-1B Visa?

  • The foreign national must have a bachelor’s degree or higher and be offered a position in the US and has the paperwork to prove it.
  • The position you have been offered is considered specialized and you have the degree, training and/or experience to perform the job.
  • The sponsor can prove you will receive an appropriate wage for the job you will be doing.
  • The H-1B visa has specific spaces set aside for those with a masters degree or higher education, and as per a free trade agreement, non-immigrants from Chile and Singapore.

How long does an H-1B visa last?

The H-1B visa can keep a foreign worker in the country for up to 6 years total    (plus extensions in some cases). These visas are initially granted for up to three years, but can be extended for another three. Once the six year maximum has been reached a foreign worker must be physically outside of the US for one year before he can once again apply.

Can the H-1B Visa can be extended past 6 years?

Yes, under special circumstances:

  • The foreign worker is the beneficiary of an approved I-140 petition.
  • The foreign worker is the beneficiary of a PERM petition or I-140 petition that was filed over 365 days ago.
  • The foreign worker is recapturing time spent outside the US during the past 6 years in H-1B status. If you were outside the United States during the six years of your H-1B visa validity, you may use those days to extend your H-1B visa beyond the 6-year limit.

Can you file H1B extension when an H1B amendment is pending?

Yes, you can file the H1B extension with USCIS, however it will not be approved by USCIS until the H1B amendment petition is approved by USCIS.

What is a cap-exempt employer?

Examples of cap exempt employers are non profit institutes and research facilities, universities and colleges, and government research facilities. It is important to note that contractors working at these facilities but not necessarily for them, may be exempt as well. Obviously there are many opportunities available in one of these instances.

Can family members come under my H-1B Visa too?

Yes! Under U.S. immigration law, an H-1B worker’s spouse and children can accompany the worker to the U.S. by obtaining H-4 Visas. Each family member would have to apply for their own separate H-4 Visa. As an added bonus, family members of H-1B Visa holders can study at any university in the US without applying for an additional F-1 student visa. And in some cases the H-1B holder’s spouse may also be able to work too.

What do I do if I lose the H-1B Visa lottery?

With more people than ever being turned down, don’t despair! An immigration lawyer may know other avenues to get you into the United States. While an H-1B Visa can be one of the fastest ways to get approved, it is by no means the only one. Employment-based, or work-based green cards are an option for many people.

If you have any questions on H-1B Visas, or any other employment related questions, please do not hesitate to contact me.




Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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