September 3, 2020 Thato Brenda Beckford 6 Comments

The United States H1B Visa


Are you a foreign national planning to work in the United States? Then the H1B Visa may be your golden ticket! The H1B Visa classification basically permits a foreign individual to enter the United States to have a specialty job position for a duration of three (3) years, which can be extended for another three (3) years. There are instances where it may be extended beyond the usual maximum of six (6) years, this happens when the foreign national is applying for a green card, employment-based permanent residency. The H1B petition cannot be transferred from an employer to a different employer, so the foreign national can only work for the employer named in the approved H1B visa. This visa has a limited availability referred to as the H1B Cap, only eighty-five thousand (85,000) are available for every fiscal year, including the twenty thousand (20,000) that is for foreign nationals who were able to obtain a master’s degree or higher from universities in the United States. And H1B petitions for an employment at a universities, or any an affiliation with a non-profit organization, non-profit research institution, or government is exempted from the H1B Cap. The common specialized field of work for H1B Visas are in research, technology, engineering, education, computer programming, and many other. According to the United State Citizenship and Immigration Services (USCIS), a specialty occupations a job in which he nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.


To become eligible for an H1B Visa, the following requirements must be met by both the employer and the foreign national employee:

l  The employee must have a Bachelor’s Degree, Master’s Degree, or higher (or twelve years specialized work experience)

l  The degree requirement and/or work experience must be fit for the specialty occupation

l  The employer must be able to establish the lack of qualified US Citizen for the job position

l  The employer must acquire Labor Condition Application (LCA) from the U.S. Department of Labor (USDOL)


The USCIS provided the Petition Filing Process of the H1B Visa on their official website, here it is;

1.   Employer/Agent Submits LCA to DOL for Certification. The employer/agent must apply for and receive DOL certification of an LCA.

2.  Employer/Agent Submits Completed Form I-129 to USCIS. The employer/agent should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS service center. The DOL-certified LCA must be submitted with the Form I-129.

3.  Prospective Workers Outside the United States Apply for Visa and/or Admission. Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.


The whole process may sound very costly, that may be true but most of the costs are shouldered by the employer. According to Stilt, a finance and technology company that provides credit to immigrants and the underserved, the H1B processing fees includes:

Base Filing Fee


American Competitiveness and Workforce Improvement (ACWIA) Fee

*for employers with 1-25 full-time employees


American Competitiveness and Workforce Improvement (ACWIA) Fee

*for employers with 26 and above full-time employees


Fraud Prevention and Detection Fee


Premium Processing Fee (optional)



As previously mentioned, there is a limited number of H1B Visa application that will be approved every fiscal year called H1B Cap. And most common occurrence every fiscal year is that the number of H1B applications exceeds the H1B Cap. Thus, in order to give every application a fair chance, there is the H1B Visa Lottery. It is a computer generated random selection process to randomly pick H1B visa applications that will be approved. That may be the only way to pick out eighty-five thousand (85,000) out of more than a hundred thousand (100,000+) H1B applications. There is an advantage for those employees with a master’s degree, even though only twenty thousand (20,000) applications will be selected from the lottery, those applications that were not selected will automatically be added to the regular lottery pool to go through the random selection process again. This basically means that master’s degree holder employees have two (2) chances of being selected in the lottery, while those employees who only have a bachelor’s degree have one chance. For those who will not be chosen in the H1B lottery, the USCIS will return their petitions together with the filing fees. Then they may resubmit their applications for the following fiscal year and try their luck again with the lottery if the number of H1B visa applications exceed the H1B Cap.


It is undeniable that H1B Visa is one of the most sought after visas in the United States. But it has its disadvantages for its holders, one is the lack of labor mobility, which means the employees will not be able to find another job because the visa only permits them to work for the employer who filed the petition. And if the employer terminates their employment, it means that they will also lose their visa and will be required to return to their country. According to USCIS, the employer will be liable for the reasonable costs of the return transportation if the employer terminates the employment before the end of period of authorized stay. But if the employee voluntarily resigns from the position, employer will not be responsible for the costs of the return transportation. Another disadvantage is that if the employee needs funding, it will be hard to find a financial institution that will give a loan to a visa holder because of their temporary status and the lack of credit history.


The advantages of having a H1B Visa is very promising, because aside from the fact that working in the U.S. will most probably give the employees financial stability and a boost on their career growth, the H1B visa holders may one day be able to permanently reside in the U.S. by applying for a green card. This will only happen if the employer will sponsor the petition, this starts with the acquisition of Labor Certification that should be approved by the USDOL and then the employer will file the Form I140, Immigrant Petition for an Alien Worker. The employee must then submit Form I485, Application to Register Permanent Residence or Adjust Status. During the process of changing the status from H1B visa holder to a green card holder, the employee’s spouse and unmarried children under 21 years of age may seek admission in the H4 nonimmigrant classification, and this would allow them to lawfully come and stay in the U.S. together with the H1B visa holder.




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