The International Student

Working in America

H-1B VISA

There are different types of visas that could make it possible for you to work in the United States. H-1B visa is one of them. The H-1B visa is the easiest and most common non-immigrant visa to obtain. With a college degree and a job offer from a U.S. company willing to sponsor you, you can get an H-1B visa. It is a job specific visa.

The H-1B visa (professional worker’s visa) is often used as the "next hurdle" after university graduation on a F-1 or J-1 visa. It is meant for people within ‘specialty occupations’ who are considered for admission on the basis of their professional education. It allows professionals to enter the U.S. and accept temporary employment within their profession.

In order to qualify for an H-1B, the job must be a permanent position and the employer must be a U.S. employer.

International students can get up to one year of practical training work authorization (referred to as OPT or Optional Practical Training) after the completion of their studies, OPT can start either during the academic program or after completion of your degree program. It provides valuable opportunities to obtain work experience in the United States. It enables the student to work for any employer, provided the job is related to the student's major.

The student may have several options. The most common: (a) work for the one year and then leave the U.S. or (b) locate an employer willing to sponsor you for H-1B visa. The student should start the H-1 process early if possible, about 6 months prior to the expiration of the practical training authorization.

The H-1B visa is good for a maximum of three years and may be extended another three years. After six years in H-1B status, the person must stay outside the United States for a year before being eligible to apply for another H-1B visa. 

It enables H-1B holders to remain and work in the United States for a total of six years and cannot be extended beyond 6 years. It permits U.S. companies to hire highly skilled foreigners into their workforce.

The petitioner seeking an H-1B must establish that the job requires the services of a professional, that the visa applicant qualifies as such a professional and that a labor condition application has been certified by the Department of Labor.

The H-1B visa holder can only work for the sponsoring employer in the job specified in the sponsoring employer’s petition. If the visa holder wish to change jobs, he/she must obtain a new H-1B visa.

Generally, the H-1B visa is available for those workers who have at least a bachelor’s degree in a technical field who will be working in a  technical position that require at least an  undergraduate degree. The H-1B is used mainly by the computer industry,  many H-1B applicants are computer programmers, engineers, technicians, professors,  etc.

An H-1 visa petition filed for an F-1 student would normally be filed requesting a change of status, so 

 that if the student is in valid status, the student  would be eligible for a change of status within the United States without having to travel to his/her country when the H-1B petition is approved. If the H-1B visa recipient needs to travel at some point, it is advisable to get an H-1B visa stamp in the passport from a consulate abroad in order to re-enter the United States in H-1B status.

One interesting feature of the H-1B visa is that during the duration of the visa, the holder can apply for permanent residency without violating the H-1B status. H-1B permits dual intent. The visa is subject to annual quota restrictions. 

Individuals who do not have an undergraduate degree can use their experience to compensate for the lack of an undergraduate degree. If you do not have a college degree or skills in demand, then you must have a job offer with a U.S. company that is willing to sponsor you for a labor certification.

General procedures to getting an H-1B Visa

The U.S. employer (sponsor) must first determine locally what the prevailing wage is for the position intended for the H-1B visa applicant.

U.S. employer files a labor condition application with U.S. Department of Labor that outlines detailed information about the said job, including the working conditions and the prevailing wage.

U.S. employer files an I-129 petition form with the INS (U.S. Immigration) with the appropriate fee. The INS then approves or rejects the petition. If approved, the H-1B visa applicant can then apply for the H-1B visa. It normally takes about a month to obtain the H-1B visa.

How To Apply

H-1B visa status requires a sponsoring U.S. employer. The U.S. employer must file a Labor Condition Application with the Department of Labor attesting to several items, which must include payment of prevailing wages for the position, and the working conditions offered. 

The U.S. employer must then file a Form I-129 petition and the fee of $130 with the INS and, unless specifically exempt under the law, an additional $1000 fee to sponsor the H-1B worker. When the INS approve the petition, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant status.

Other Important Features Of The H-1B

Spouses and children under twenty one years old of the H-1B visa holder can remain in the U.S. with the H-1B visa holder for the duration of the H-1B visa holder’s authorized stay. They are issued H-4 visas during this period but are not allowed to work but are allowed to attend school with the H-4 visa.

For Your Information....

Q: My OPT is about to expire and my employer submits the H-1B petition for me before the OPT expires, but before the H-1B is approved, the OPT expires, am I legally staying in the US?
A: Yes, you are legally staying in the US, but you cannot legally work until your H-1B is approved.