H1-B Visas
What Is an H-1B Visa?
The H-1B visa is a temporary work visa that allows US employers to hire foreign workers for jobs requiring specialized knowledge and at least a bachelor’s degree or its equivalent. These specialty occupations include fields like engineering, mathematics, medicine, education, business, and the arts. It gives foreign workers the legal right to live and work in the United States for the duration of their employment.
Who Is Eligible for an H-1B Visa?
To qualify for an H-1B visa, both the job and the worker must meet specific requirements:
Job Requirements
Worker Requirements
- The job must require both knowledge and skills that are specific and specialized.
- The job requires at least a bachelor’s degree (or equivalent) in a field closely related to the role.
- The position must meet at least one of the following criteria:
- Other jobs in the same industry typically require this degree.
- The employer usually requires this degree for the job.
- The job is so specialized or complex that it needs knowledge typically gained from a related bachelor’s degree or higher.
- The applicant must meet at least one of the following:
- Have a US bachelor’s degree or higher that’s required for the job.
- Have a foreign degree that is equivalent to the required US degree.
- Have an unrestricted state license, registration, or certification that allows full practice in the specialty occupation.
- Have a mix of education, specialized training, or experience that equals the required degree, with proof of expertise through increasing responsibilities in the field.
What Is the Minimum Salary Requirement for an H-1B Visa?
To determine the minimum wage employers must pay H-1B workers, they have two options:
$60,000 Salary Rule
Some employers, called H-1B-dependent employers, can meet the salary requirement by paying H-1B workers at least $60,000 per year. This only applies if the employer:
- Has more than 50 employees, with 15% or more on H-1B visas, or
- Has 50 or fewer employees, and over half are on H-1B visas.
For these employers to avoid extra steps—like proving they tried to hire US workers—they must either:
- Pay H-1B employees at least $60,000 per year, or
- Show that the employee has a master’s degree or higher in a related field.
Stipulations of the $60,000 Salary Rule:
- The employee must earn at least $60,000 a year in wages or guaranteed bonuses, paid in cash (benefits don't count), and the full amount must be paid on time.
- Part-time workers can’t be considered exempt if their actual pay is less than $60,000, even if it would exceed $60,000 if they worked full-time.
- If an employee works full-time but less than a full year, they must be paid a pro-rated amount (e.g., $15,000 if they worked three months).
Prevailing Wage Rule
For most employers, the H-1B worker must be paid the prevailing wage for the job and location. The prevailing wage is the average salary for similar roles in the geographic area, as determined by the Department of Labor. This amount is often higher than $60,000, depending on the job and region.
How Long Can an Employee Stay in the US on an H-1B Visa?
The typical H-1B visa duration is three years, with the possibility of extending it up to a maximum of six years, but generally not beyond that.
How Does the H-1B Visa Lottery Work?
There is greater demand than availability for H-1B visas, so the US uses a lottery system to help create fairness. Here's how it works:
Step 1: Registration
Employers who want to hire a foreign worker in a specialized field (like tech, engineering, or healthcare) sign up during a specific time. They submit basic details about the worker they’re sponsoring.
Step 2: The Lottery
There are 85,000 H-1B visas available:
- 65,000 are for the general pool of applicants.
- 20,000 are reserved for workers with advanced degrees from US schools.
United States Citizenship and Immigration Services (USCIS) runs a random lottery. First, they randomly select 65,000 people from everyone who applied. Then, they hold a second lottery to select 20,000 more from the group with US advanced degrees.
Step 3: Filing the Visa
If the worker is chosen in the lottery, the employer submits a full visa application. If everything checks out, the worker gets approved and can start their job in the US.
Since there are so many applications and only a limited number of visas, the lottery is a way to help make the process fair.
What Rights Do the Children and Spouses of H-1B Visa Holders Have?
Families of H-1B visa holders, including their children and spouses, are eligible to obtain H-4 visas, which permit them to remain in the United States based on the status of the H-1B visa holder. Here is some important information to keep in mind:
Who Is Eligible for H-4 Status?
H-4 status is available to spouses and unmarried children under 21 years old. However, if the child gets married or turns 21, they will no longer qualify for this status. Additionally, if the H-1B holder's status is terminated or they lose their H-1B status, their dependents will also lose their H-4 status.
Education Opportunities
H-4 dependents are allowed to enroll in educational programs in the US, either on a part-time or full-time basis, without any restrictions.
Limitations on Employment
Most H-4 visa holders aren’t allowed to work, but certain H-4 spouses may be eligible for work authorization if the H-1B holder is in the later stages of the US permanent residency process.
Spouses may request an Employment Authorization Document (EAD) to be eligible for employment. This option is only available for spouses of H-1B visa holders who have either initiated or completed the process for obtaining permanent residency in the US through an approved I-140 petition.
What are the Employer’s Responsibilities for H-1B Visa Employees?
Employers sponsoring H-1B visa workers have a few key responsibilities to follow:
Be a Sponsor
Employers must submit Form I-129 to the USCIS to prove there’s a real job for the employee, with set hours and a promised wage.
Get a Certified Labor Condition Application (LCA)
Employers need to submit Form ETA 9035E to the Department of Labor (DOL) to confirm:
- The employee will be paid at least the higher of the local or company wage.
- Working conditions won’t harm US workers.
- The LCA must be posted where the employee will work. If employees work remotely, it must be shared with the company online (e.g. email).
Pay the Correct Wage
Employers must pay the employee the prevailing wage throughout their employment.
Report Changes
Any big changes, such as a change in worksite location outside the listed geographic area or a salary drop, must be reported to USCIS and DOL. These may require filing a new LCA or amended H-1B petition.
Notify Agencies of Termination
If the employee’s job ends, employers must inform USCIS and DOL.
Cover Return Transportation Costs
If the employment is terminated before the H-1B visa period ends, employers must pay for the employee’s reasonable transportation back to their home country.