H-1B visa: What you need to know

Only individuals with specific jobs can work in the U.S. on this program.

Published on November 3, 2023 · 7 min read

There are multiple paths to working and living in the United States as a noncitizen. Depending on your education and abilities, an H-1B visa could be a possibility for you. However, you must meet very specific criteria to be eligible for this visa.

This article aims to help you better understand what an H-1B visa is, the requirements for this visa and the process to obtain one.

What is an H-1B visa?

H-1B visas grant certain noncitizens lawful, nonimmigrant status under U.S. law. This means they can temporarily work or live in the United States. If you obtain an H-1B visa, the U.S. government might permit you to stay in the country for three to six years.

H-1B visa requirements

There are three types of H-1B visas:

H-1B visas: for people in “specialty occupations”
H-1B2 visas: for Department of Defense workers and development project workers
H-1B3 visas: for fashion models

Each H-1B visa has different requirements.

H-1B visas

In general, to qualify for an H-1B visa, you must:

Work in a specialty occupation that involves theoretical and practical application of highly specialized knowledge
Have at least a bachelor’s degree, or an equivalent degree, from an accredited institution

A noncitizen might also be eligible for an H-1B visa if they have an unrestricted state license, registration or certification that gives them the authority to immediately perform specialized work where their employer is located.

Additionally, the job that qualifies a nonimmigrant for an H-1B specialty occupation visa must have one of the following characteristics:

The position requires the employee to have at least a bachelor’s degree or credentials equivalent to a bachelor’s degree
The degree the position requires is common to the industry involved
The employer usually requires an employee in that position to have a degree
The nature of the work is so complex and specialized that the employee’s ability to perform the job is typically associated with having at least a bachelor’s degree
The position is so unique or complex, only an employee with a degree can perform it

H-1B2 visas

Noncitizen employees working on development projects or conducting research for the Department of Defense are eligible for an H-1B2 visa if they:

Have a U.S. bachelor’s degree, or its foreign equivalent, from an accredited institution
Have specialized training, education or progressively responsible specialty experience that’s recognized and equal to completion of at least a U.S. bachelor’s degree
Have an unrestricted state license, registration or certification that gives the employee the authority to immediately perform all duties of the position in the employer’s area

H-1B3 visas

Prominent fashion models may apply for an H-1B3 visa if they have distinguished merit and ability in their field.

Preparing and submitting your H-1B visa application

Regardless of the type of H-1B visa you seek, you can’t apply for your visa more than six months before your work in the United States starts.

When it’s time, your employer or the entity hiring you must submit a completed Form I-129 Petition for a Nonimmigrant Worker to USCIS. This form requires your employer to provide:

Background information about you
Background information about your employer
Information about your position
Information about your immigration history and needs

Currently, petitioners must pay at least $460 to file Form I-129.

Additional application requirements for H-1B and H-1B3 visas

Along with Form I-129, fashion models and workers in specialty occupations who wish to obtain H-1B or H-1B3 visas must have their employers file a Form ETA-9035/9035E Labor Condition Application (LCA). This application asks for details about the employer and the jobs they’re offering to H-1B nonimmigrants. The LCA must be certified by the Department of Labor.

Special requirements for applicants outside of the country

If you’re outside the U.S. when seeking an H-1B visa, after the government approves your Form I-129, you may have to apply for your visa through the U.S. Department of State at a U.S. embassy. But even if you don’t have to apply for a visa through the Department of State, you have to apply for admission to the United States through U.S. Customs and Border Protection.

How many H-1B visas are available?

For many applicants, there’s an H-1B visa lottery because the U.S. government currently caps the number of H-1B visas it grants at 65,000 per year. This is called the “regular cap”. Out of the 65,000 H-1B visas available under the regular cap, the government sets aside up to 6,800 for noncitizens with specialty occupations from Chile or Singapore.

Exemptions

Visa seekers with advanced degrees, such as a U.S. master’s degree or an equivalent, are exempt from the regular cap. However, if the number of noncitizens seeking an H-1B visa under the advanced degree exemption exceeds 20,000, any applicants after the first 20,000 are subject to the regular cap. There may also be regular cap exemptions for visa applicants from specific countries and territories, including:

Guam
The Commonwealth of the Northern Mariana Islands

Employers for applicants from Guam or the Commonwealth of the Northern Mariana Islands must file their H-1B petitions before December 31, 2029, if they want to take advantage of the cap exemption.

Registering to receive a capped visa

To get in line to receive one of the 65,000 visas available under the regular cap or one of the visas available under the advanced degree exemption, petitioners must electronically register. The employer and noncitizen worker need to provide information about the worker and pay a small registration fee (currently $10).

Through their USCIS online account, the government will let a petitioner know if their registration has been:

Selected, which means their employer can submit its Form I-129 petition for the employee to receive a visa
Not selected, which means the employee is ineligible for an H-1B visa based on their registration
Invalidated because of failed payment
Denied, which means the same registrant submitted multiple registrations for the same beneficiary, and all registrations for that fiscal year are invalid

If you don’t receive a notification that you were selected, but your registration wasn’t denied, invalidated or deemed ineligible, your registration remains a submitted registration in the system.

Note that in March 2023, USCIS discovered it needed to select additional registrants to meet the 2024 cap. So the government will once again randomly select registrants for an H-1B visa lottery and give them the opportunity to petition for an H-1B visa. Only individuals who already submitted their electronic registration are eligible for this random selection.

What can you do if your visa petition is denied?

People who petition for H-1B status and are denied visas have may have the option to seek reconsideration or reapply based on the following circumstances:

Those who were denied a visa because of missing information have one year from the date of refusal to provide additional information (otherwise, they have to reapply)
Those who were denied a visa because they didn’t sufficiently demonstrate their qualifications for the visa must reapply

How an attorney may help

While the USCIS website is a great resource for noncitizens seeking an H-1B visa, some individuals prefer working with an attorney. For example, petitioners for the visa may find it challenging to prove that their prospective employee’s skills or degree makes them eligible for an H-1B visa, or that they are paying appropriate wages to justify certification.

An experienced immigration attorney can research and make sound arguments to help employers and nonimmigrant employees prove they’re entitled to an H-1B visa.

Share with

Author Bio

The Marble Team

Your family & immigration law firm

We are Marble - a nationwide law firm focusing on family & immigration law. Marble attracts top-rated, experienced lawyers and equips them with the tools they need to spend their time focused on your case outcome.

See my bio page