H1B Visa

H1B Visa Overview:

The H-1B is a visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H) that allows U.S. employers to temporarily employ foreign workers in specialty occupations. A specialty occupation requires the application of specialized knowledge and a bachelor's degree or the equivalent of work experience. The duration of stay is three years, extendable to six years; after which the visa holder may need to reapply. Laws limit the number of H-1B visas that are issued each year: 180,440 new and initial H-1B visas were issued in 2017. Employers must generally withhold Social Security and Medicare taxes from the wages paid to employees in H-1B status.

If you plan to work for multiple employers (either full time or part time), each employer must file a separate H1B petition. The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment. H1 visa holders can buy a house or any other real estate property in the USA. H1 visa holders can also invest money in stocks, mutual funds, bonds, etc. H1 visa holders can not be self-employed, freelancers, nor do contract-type of work in free time. Employee cant file H11 for himself.


H1B Eligibility:

Specialty Occupation:

The US H1-B visa is designed to be used for staff in specialty occupations. The job must meet one of the following criteria to qualify as a specialty occupation:

  • Have a minimum entry requirement of a Bachelor's or higher degree or its equivalent.
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree.
  • The employer normally requires a degree or its equivalent for the position.
  • The 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.

Employee Qualifications:

For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a US bachelor's or higher degree required by the specific specialty occupation from an accredited college or university.
  • Hold a foreign degree that is the equivalent to a U.S. bachelor's or higher degree in the specialty occupation.
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
  • Have education, training, or experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
  • Positions that are not specialty occupations, or for which the candidate lacks the qualifications/experience for an H1B visa, may be filled using an H-2B visa. Also, applicants that are not eligible for H-1B visas may want to consult our L-1 visa page. The L-1B visa a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employee from its foreign operations to their US operations for up to five years. The employee must have worked for a subsidiary, parent, affiliate or branch office of your US company outside of the US for at least one year out of the last three years.

Applying for H1-B Visa:

The individual is not allowed to apply for the H1-B visa, it requires sponsoring from U.S. employer. The H1-B filing period starts from 1st April and the filling period will continue till the quota is met. The H1-B sponsors and employers change every year. H1-B visas are dual intent visas as you can get permanent residency as well.

H1-B visas can be filled and approved in 15 days using the premium processing but an extra fee of $1,225 is to be paid. The H1B visa can also be transferred to the new H1-B sponsor company at any time.

Employer petitions for the H1B visa in the following ways:

  • Form ETA-9035:
    Labor Condition Attestation through the ICERT website. The employer assures the DOL that they will provide the employee with fair salary and equal benefits similar to that which is being provided to the U.S. citizen.
  • Form I-129:
    The petition for Nonimmigrant Worker is filed with H Supplement and submitted with supporting documents that include proved LCA and is to be filed with USCIS Regional Service Centre that has jurisdiction over the city of planned employment. When approved, the employer gets notice or approval Form I-797 and a copy is forwarded to the American Consulate.

Documents Required While Applying For H1B Visa

Documents required for h1b visa who are outside the U.S. are as follows:

  • Passport
  • Labor Certificate Approval
  • Appointment Letter offered by your employer
  • Tax returns paper of the company
  • Copy of the letter sent to the Department of Justice
  • Copy of the letter sent to the Consular General of the Indian Consulate
  • Copy of the official valuation of your degrees
  • PG certificate
  • Appointment and Relieving Certificates from the previous companies that you were employed at.
  • Dates of prior stay in U.S. in H1-B status
  • Job description and duty with the sponsoring U.S. Company to be described in short.
  • Copy of current U.S. License or temporary license
  • Copy of resume with supporting certificates
  • Two demand drafts, $45 for processing fee and $100 for issuance fee
  • 2 to 3 passport sized colored photographs
  • If H-4 visa is being applied for dependent members, then you must submit copies of children’s birth certificates and copy of marriage certificate.

If you are applying for a H1-B status when you are already in the U.S., the following documents are to be submitted:

  • Copy of biographic and visa pages of current passport
  • Current U.S. address
  • Foreign address
  • Day and evening phone numbers
  • E-mail address
  • Form I-94 card copy
  • Prior H1-B approval notices copy
  • Dates of prior stay in U.S. under H1-B status
  • Current resume with employment history
  • Copy of university or college degree
  • Copy of credentials evaluation
  • Title you hold with the sponsoring U.S. Company
  • Detailed description of your job and duties
  • Copy of current license, if any that is required for your occupation
  • Social security number
  • Recent W2 copy
  • Recent pay slip copy

Length of stay for H1B:

The H-1B visa is initially granted for up to three years, but may then be extended to a maximum of six years.

Even though the H-1B visa is a non-immigrant visa, it is one of the few US visa categories recognized as dual intent, meaning the H-1B visa holder can apply for and obtain a US Green Card while in the US on an H-1B visa. If you are still in the US on an H-1B visa and wish to remain in the US for more than six years, you can apply for permanent residency in the US to receive a Green Card. If you do not gain permanent residency prior to the expiration of your H-1B visa, then you must live outside the US for at least one year before reapplying for another H or L visa.

The maximum duration of the H-1B visa is ten years for exceptional United States Department of Defense project related work.


H-1B Visa Quota:

H-1B visas are subject to an annual visa cap each financial year. US employers can begin applying for the H-1B visa six months before the actual start date of the visa. Employers can apply as soon as April 2, 2017 for the 2018 cap, but the beneficiary cannot start work until October 1, 2017.

  • The United States Citizenship and Immigration Services sets a limit on how many H1B visas are issued each year.
  • These numbers can change as per regulations of the US government. Historically, the cap is placed at 65,000.
  • An additional 20, 000 H1B visas are issued for qualified people who have completed a Masters degree from USA. This quota is independent and additional to general 65,000 quota.
  • A deadline is placed in each calendar year within which employers are expected to have filed for their H1B visa petitions meant for the next financial year.
  • After this date petitions are not accepted.
  • Due to a limited capacity of H1B visas issued, there is usually a rush and the cap is met within a few days of the deadline.
  • Should the cap remain unmet, USCIS continues to accept applications until that number is met.

What is the fee for H1B Visa ?

Mentioned below is a breakdown of the fee that has to be paid for H1B visa:

Type Amount
USCIS Anti-Fraud Fee $500
Base Filing Fee $325
ACWIA Education and Training Fee $750 (To be paid by employers who have below 25 employees.)
$1500 (To be paid by employers who have more than 25 employees.)
Premium Processing (It is optional) $1,225
Public Law 111-320 Fee $4,000

Dependents of H-1B visa holders:

H-1B visa holders can bring immediate family members (spouse and children under 21) to the United States under the H-4 visa category as dependents.

An H-4 visa holder may remain in the U.S. as long as the H-1B visa holder retains legal status. An H-4 visa holder is allowed to attend school, apply for a driver's license, and open a bank account in the United States.

Effective May 26, 2015, United States Citizenship and Immigration Services allows some spouses of H-1B visa holders to apply for eligibility to work in the United States.[48][49] The spouse would need to file Form I-765, Application for Employment Authorization, with supporting documents and the required filing fee.[49] The spouse is authorized to work in the United States only after the Form I-765 is approved and the spouse receives an Employment Authorization Document card.


H-1B and intent to immigrate permanently:

Even though the H-1B visa is a non-immigrant visa, it is one of the few temporary visa categories recognized as dual intent, meaning an H-1B holder could legally have an immigration intent (apply for and obtain the green card) while still being a holder of the H-1B visa However, this was only allowed in special cases by the USCIS, such as EB-1 visas. Effectively, the non-immigrant visa may eventually lead to permanent residence; companies often support it for cheap labor with the agreement to support the employee with green card petitions.

In the past, the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself because requirement to maintain a foreign address for this non-immigrant classification was removed in the Immigration Act of 1990. The Trump administration expressed its dislike of the use of the H-1B visa, a nonimmigrant visa, as a pathway to permanent residence, and it has said it intends to restructure the immigration/permanent residence pathway with efficient systems such as Points-based immigration system. In apparent response, some green card seekers look to alternatives, like the EB-5 visa, which offers better prospects for permanent immigration than the H-1B visa. As a response to the abuse of H-1B visas, groups like Progressives for Immigration Reform advertised opposition posters throughout San Francisco's Bay Area Rapid Transit (BART) stations and trains.


Tax status of an individual with H-1B status:

The taxation of income for an individual with H-1B status depends on whether they are categorized as either nonresident aliens or resident aliens for tax purposes. A nonresident alien for tax purposes is only taxed on income that is effectively connected with a trade or business in the United States and United States-source income that is fixed, determinable, annual, or periodical.[26] A resident alien for tax purposes is taxed on all income, including income from outside the United States.

The classification is determined based on the substantial presence test. If the substantial presence test indicates that the individual is a resident, then income taxation is like any other U.S. person and may be filed using Form 1040 and the necessary schedules. Otherwise, the individual must file as a non-resident alien using Form 1040NR or Form 1040NR-EZ; the individual may claim a benefit from tax treaties that exist between the United States and the individual's country of citizenship.

An individual in the first year in the U.S. may choose to be considered a resident for taxation purposes for the entire year, and must pay taxes on their worldwide income for that year. This first-year choice can only be made once in an individual's lifetime. A spouse, regardless of visa status, must include a valid Individual Taxpayer Identification Number or Social Security number on a joint tax return with the individual in H-1B status.

Tax filing rules for an individual in H-1B status may be complex, depending on the individual situation. A tax professional who is knowledgeable about the rules for foreigners may be consulted.


Social Security tax and Medicare tax:

Employers must generally withhold Social Security and Medicare taxes from the wages paid to employees in H-1B status.

Similarly to U.S. citizens, a person who worked in H-1B status may be eligible to receive Social Security benefit payments at retirement. Generally, a worker must have worked in the U.S. and paid Social Security taxes obtaining at least 40 credits before retirement. The person will not be eligible for payments if the person moves outside the U.S. and is a citizen of a country with a social insurance system or a pension system that pays periodic payments upon old age, retirement, or death.

The U.S. has bilateral agreements with several countries to ensure that the credit granted into the U.S. Social Security system, even if it is fewer than 40 credits, is taken into account in the foreign country's comparable system and vice versa.


How the H-1B Visa Benefits U.S. Employers:

Foreign professionals are not the only ones that stand to grow from the H-1B benefits. Employers have much to gain from as well. This visa, which caters to people with educational backgrounds in science, technology, engineering, and mathematics (or STEM for short), allows the best of the world’s professionals to enter the U.S. and work for your company.

Combat Local Labor ShortagesMany employers are located in areas that have a labor shortage and may not have access to qualified U.S. workers who are willing to move permanently to your area. The H-1B process gives employers the opportunity to hire temporary professionals from overseas to complete projects or fill specialty positions.

Global CompetitivenessThese days, in order to compete with today’s market, you need to have a global presence. Hiring H-1B employees can strengthen your competitiveness abroad and could also provide quality permanent workers if you are willing to sponsor applicants for employment-based green cards.


Possible Alternatives to the H1B Visa:

People who may be eligible for the H1-B may also be eligible for:

  • the TN visa (for citizens of Canada or Mexico);
  • the E3 (for citizens of Australia);
  • O1 (extraordinary ability in a wide range of fields);
  • L1 visa (if they have been employed overseas for at least one continuous twelve-month period within the last three years);
  • The E1 (treaty trader) or E2 (treaty investor) visas may also be worth looking into.

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