A Guide To H1-B Visas For The USA

The H1B Work Visa for the USA allows an employer in the United States to employ foreign workers in speciality occupations for a period of up to six years.

During the application process for US visas, the H1B visa functions much like a UK work permit application, in that the process is employer led and begins with an offer of employment from a United States-based company.

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Unlike the UK, where the Highly Skilled Migrant Programme or HSMP allows a candidate to relocate in order to seek employment, US immigration for work purposes in all cases requires a pre-arranged job offer and employer who is willing to undergo the complex petitioning process. 

Further, the H1-B beneficiary must possess the requisite educational and/or work experience requirements related to their proposed position in the US to meet the ‘specialty occupation’ as described below. It is advisable to seek advice from US visa specialists early in the proceedings.

Benefits

The H1B visa for the USA is regarded as a non-immigrant visa and as such is not intended as a route to settled status in the USA.  However, US employers may decide to sponsor a foreign beneficiary for a green card by undertaking a labour certification process and filing a petition with USCIS.

Duration

H1B visas for immigration to the United States are initially granted for three years which may be extended for another three years up to six years maximum.  Please note that there are ways to have one’s H1B status extended beyond the six years, but you should consult with our US branch office for more information on US visas.

Eligibility Criteria

Much like UK work permits, H1-B visas for the US, depend upon an employer petitioning on behalf of a candidate, and candidates cannot initiate the process of application themselves. Applications for USA visas of this class depend on a guaranteed offer of permanent full-time employment from a US based employer. However, the candidate in question must also satisfy a range of criteria.

The US H1B visa class is aimed at potential employees who will be immigrating to the USA in order to undertake employment in a “speciality occupation”, i.e. a job that requires a significant deal of specialist knowledge and skills evidenced by the attainment of a US equivalent Bachelor’s Degree. As a result, candidates are expected to have either:

• The equivalent of a 4-year US equivalent Bachelor’s degree, relevant to the field in which employment is being offered (Most UK Bachelor’s Degree’s are equivalent).

• 12 years of relevant work experience in a “specialised field”, or a combination of education and work experience totalling 12 years (1 year of higher education equals 3 years of work experience).

• Professionals such as doctors, lawyers, and accountants must be licensed to practice in the state in which employment is offered. This may involve passing a relevant state professional examination.

Furthermore, there is a quota or limited amount of H1B visas allotted in a fiscal year.  April 1st is the first day that H1B applications are accepted by USCIS. 

As such, it is highly recommended that US employers prepare petitions for their foreign beneficiaries well in advance of this filing date.  If visas are used up, then the beneficiary will have to wait until the following fiscal year to apply.  

In the last few years, the number of H1B applications has more than doubled the quota or exceeded the number of allotted visas resulting in a lottery being conducted by USCIS for all applications received.  Please note that there are exemptions to the H-1B quota and you should consult with our US branch office for further information.

Employer Requirements

As an employer-led process, applying a for a USA H1B visa also stipulates that companies wishing to bring foreign nationals to the United States through this system should meet certain requirements. In America, visa applications of this kind from a company whose workforce already includes successful H1B visa applicants may require a position to be advertised in the United States before the process of petitioning for a foreign national can begin. In companies where H1-B American visa workers make up 15% or more of the workforce, this will be required.

Once a successful USA visa application is made and a skilled worker is in place, the company will be responsible for any costs incurred by the employee, should the position terminate prematurely. This requirement does not stand in the case of resignation, however, if a candidate is dismissed before the proposed duration of the position, reasonable costs for the candidate moving back to their last place of foreign residence must be covered by the employer.

Dependents

In America, immigration through H1B visas is not directly intended as a permanent route for immigration to the USA. However, it may lead to a Green Card visa application and even if a candidate returns home at the expiry of an H1B visa, it is likely that they will have been living and worked in the USA for a period of some years.

As a result, spouse immigration and dependent immigration are permissible on this route and the spouse, partner or dependent children of an applicant may join them in the United States. Dependents immigrating to America will be granted a USA H-4 visa in order to join their H1B partner in the country.

H-4 America visas do not allow their holders to work in America, and as a result, a spouse or dependent will not be permitted to seek or undertake employment without applying in their own capacity for a USA work visa. USA H4 visas do however permit holders to study in the USA.