H-1B Visas: An Overview

Readers of this blog who work in the technology section have probably heard the term “H-1B visa.” Employers in other industries requiring specialized knowledge might be familiar with H-1B visas as well. An H-1B visa allows an employer to hire a foreign citizen who works in a “specialty occupation.” Generally, specialty occupations are those occupations that require advanced skill sets, like computer engineering or medicine. To qualify as a specialty occupation, a bachelor’s degree or higher is generally required, and generally only those possessing a bachelor’s degree are eligible for an H-1B visa. There are two other types of H-1B visas, labeled H-1B2 and H-1B3 visas, that allow foreign workers to enter the country for research and development projects for the Department of Defense, or if they are fashion models or have international fame, respectively. Employers, however, rarely deal with H-1B2 and H-1B3 visas.

An H-1B visa permits a non-citizen to work in the United States for three years, which can be extended to six. However, after six years, the non-citizen must reside abroad for one year before re-entering on an H-1B visa. An H-1B visa holder can bring a spouse and children under 21 to the U.S., and these dependants may stay in the country as long as the H-1B visa holder.

The number of H-1B visas which may be issued annually is limited to 65,000. However, up to 20,000 non-citizens holding a master’s degree or above from a U.S. university are exempt from this cap. Before the financial crisis of 2008-2009, demand for H-1B visas far exceeded supply, with the yearly caps often being reached within the first few months of the year. During the recession, the demand for H-1B visas fell considerably, but in the last few years, it has rebounded so that demand for the visas again exceeds supply.

An employer must sponsor an H-1B visa applicant. In the application, the employer must list the wage rate for the position, as well as the degree held by the applicant. If the degree is from a foreign university, a foreign degree evaluation will be required to demonstrate that the degree is at least the equivalent of a U.S. bachelor’s degree. The application must detail the employee’s experience, and must demonstrate that the applicant holds the necessary credentials. The filing fee for an H-1B visa is $325, but an H-1B training and education fee must also be paid, which is $750 for employers with less than 25 employees, and $1,500 for employers with more than 25 employees. There is also a $500 fraud prevention and detection fee for first-time H-1B visa applicants.

An employer classified as an “H-1B dependent employer” must jump through additional hoops to obtain an H-1B visa for an employee. An “H-1B dependent employer” is one with more than 50 full-time employees, of which at least 15 percent hold H-1B visas. These employers must attest in the H-1B visa petition that they have not or will not displace any employee who is a U.S. citizen in the 90-day periods before and after the filing of the petition. They must also show that they have taken good-faith steps to recruit U.S. workers and have offered prevailing wages to U.S. workers who were equally or better-qualified.

While it is useful to have a basic understanding of the H-1B visa system, ultimately, an employer would be best served by contacting counsel experienced in obtaining these visas. The penalties for making errors in the H-1B visa petition can run into the thousands of dollars, so it is probably cheaper and easier in the end to hire an attorney to complete the petition.