The H-1B visa provides an opportunity for foreign professionals to work in the United States. It allows employers to hire qualified foreign workers in the U.S. in specialty occupations on a temporary basis. The foreign professional has the possibility to obtain a U.S. position based on his/her acquired skills.

The H-1B visa requirements ensure that the U.S. employer and foreign professional complies with the Department of Labor standards. A major part of this compliance is filing for a Labor Condition Application (LCA).

The H-1B visa is designed to help American employers to hire international talent in specialty occupations. Companies can bring foreign workers with at least a bachelor's degree or equivalent to work in the U.S. Although the H-1B visa is a temporary visa, holders have the future option to obtain a green card giving US permanent residency.

H-1B is a great immigration pathway for individuals who are well-educated and have a job offer from a U.S. employer. Historically, these occupations have been in engineering, medicine, technology, and other fields that require advanced skills.

H-1B has many specific legal requirements for applicants:

Position Requirements

  • The job offered must be filed as a “specialty occupation.” A specialty occupation requires a bachelor's degree or an advanced level of education certification.
  • Examples of qualified positions are engineers, professors, researchers, medical, accountants, attorneys, and architects.

Education Requirements

  • The bachelor's or advanced degree must originate from an accredited university or college. The degree is required to relate to the H-1B specialty position. If the degree was obtained outside the United States, it must be equivalent to an available U.S. degree.
  • Work experience is not a prerequisite if the applicant holds a bachelor's degree. Education. Work experience can be substituted for education. The general rule for the amount of accepted work experience: 1 year required of University = 3 years of work experience.

Department of Labor and USCIS Requirements

Obtaining the H-1B requires the employer to submit an I-129 form to the USCIS once the DOL certifies the LCA

U.S. Employer Requirements

  • Have the funds necessary to pay the foreign professional
  • Obtain a prevailing wage determination showing the average wage paid to US employees in similar fields
  • Provide an official job offer. An official job offer signifies that documented evidence can be presented to show a true business need.

H-1B Cap

Every fiscal year, the H-1B visa is limited by annual cap of 65,000 visas. However, there are some applicants that are exempt from the cap.

Beneficiaries with a U.S. master's degree or higher are exempt from the cap if their applications are filed for the first 20,000 petitions available.  If the H-1B worker is employed by an institute of higher education, the applicant is not subject to the H-1B cap. Nonprofit entities, nonprofit research, and government research organizations are also exempt from the H-1B cap.

The spouse and unmarried children of the H-1B visa holder have the option of admission through an H-4 visa. However, holders of the H-4 visa are not authorized to work in the United States.

Contact Donald Gross Law for a free 30-minute consultation to start the application process for your H-1B visa.