The H-1B visa is a classic work and residence permit for the United States. The category allows foreign persons with an academic degree or a corresponding equivalent to secure temporary work at a U.S. company or a U.S. organization. The future employment in the U.S. must be in certain specialty occupations.
The H-1B visa is tied to a business, i.e., the official applicant is the U.S. company seeking to hire the future employee. Consequently, one essential prerequisite is a concrete job offer in the United States from a U.S. employer. The foreigner must work exclusively for the U.S. company that submitted the application. Even non-profit, government organizations or educational institutions (e.g., U.S. universities) can apply for this visa.
The future H-1B position in the U.S. for the foreign employee must be H-1B eligible, i.e., it must be classified as a “specialty occupation. According to the definition provided by the U.S. authorities, these are occupations in the United States that typically require knowledge and skills that can be acquired by a university education. Therefore, at a minimum these positions usually require a U.S. bachelor's degree or its equivalent in the relevant work area (e.g., lawyers, engineers, architects, etc.). Other occupations may also be classified as “H-1B eligible.
Therefore, only persons who have at least a U.S. bachelor's degree or who have acquired a non-U.S. academic degree equivalent will qualify for an H-1B visa. A combination of education and vocational training that is accepted as the equivalent to a U.S. bachelor's degree is also conceivable.
The law also assumes that the position that is being offered will constitute a regular working contractual relationship (regular employment).
The H-1B visa is granted on the initial application for a maximum period of three years and may be renewed for another three years. The maximum stay of six years may only be exceeded if a job-related Green Card is requested by the U.S. employer in a timely fashion.
H-1B applications must be submitted by mail in the United States to the appropriate service center of the U.S. Citizenship and Immigration Services (USCIS). In addition, this petition requires that extensive documentation be submitted about the U.S. company, the employment offered, the qualifications of the foreign employee, as well as also an approved labor condition application (LCA) from the U.S. Department of Labor.
This should not be confused with the labor certification (= labor market review by the U.S. employer). When applying for a H-1B visa, the U.S. employer does not have to prove that it could not find a qualified American employee for the advertised position. During the labor condition application procedure (which must be completed before the actual USCIS application is submitted online), officials will check and certify whether the prospective foreign employee has been offered an adequate salary and other working conditions.
If the USCIS application is approved, the U.S. company will receive an approval notice by regular mail. During the last step the future employee must go through the consulate process during which the actual H-1B visa will be issued (the only exceptions to this procedure are status extension or change processes that are initiated from within the United States). The application process usually takes place during the personal interview at the appropriate U.S. consulate in the applicant’s home country.
The H-1B visa category is limited in number and subject to a quota system (H-1B Cap”). Each cap shall apply for a U.S. tax year (Fiscal Year, FY: October 1 to September 30 of the following year).65,000 H-1B visas are currently issued per U.S. tax year (= H-1B Regular Cap). In addition, the H-1B Master's Degree Cap” provides 20,000 visas for those who earned a U.S. master's degree (or higher) at an American university.
Initial H-1B applications may be submitted to the the USCIS starting on April 1 at the earliest with a projected employment start date of October 1. If the quota is exhausted, which has unfortunately happened very quickly in recent years, then the applicant must wait for the following tax year to resubmit their application.
Not all H-1B applications, however, are affected by the quota system. For example, status renewal applications or petitions can always be submitted by certain U.S. educational institutions or non-profit research institutes.
Spouses and unmarried children under 21 years of age receive a derivative H-4 visa lasting the same period as the principal applicant’s H-1B visa. Once children reach the American age of majority (21), they must change their non-immigrant visa status or leave the country.
The spouse with a H-4 visa is not eligible to receive a separate work permit (Employment Authorization Document, EAD). Therefore, neither they nor their children are allowed to accept employment. Under exceptional circumstances the spouse may apply for an EAD if the H-1B visa holder has already applied for immigrant (Green Card) status, and this status is already being adjusted by the state authorities.
Spouses and children with an H-4 visa are allowed to attend private and public educational institutions.