Mastering the H-1B Visa: A Comprehensive Guide

For foreign nationals looking to work in the United States, the H-1B visa is a valuable pathway. This visa allows qualified professionals to work in specialized fields, filling crucial skills gaps in the U.S. However, the path to an H-1B visa is highly competitive due to a strict numerical limitation (the “H-1B cap”) and a complex petition process. In this guide, we cover the essentials, from eligibility and application steps to navigating employment transitions and alternatives if you’re not selected in the annual H-1B lottery. Finally, we’ll introduce how The Build Fellowship’s innovative cap-exempt solution can help you continue your career in the U.S.

Understanding the H-1B Visa and Key Eligibility Requirements

The H-1B visa is designed for "specialty occupations," which are jobs requiring a high level of expertise in fields such as IT, engineering, finance, and healthcare. Qualifying for an H-1B visa involves meeting both professional and educational requirements, as well as specific employer criteria.

Core Requirements for H-1B Eligibility:

1. Specialty Occupation Requirement: The position must require specialized knowledge, usually gained through a bachelor’s degree in fields like engineering, mathematics, or computer science. Some common H-1B roles include software developers, analysts, and architects.
2. Educational and Professional Requirements: Applicants must hold at least a bachelor’s degree (or experiential equivalent) in a field directly relevant to the job. For those with foreign degrees, an evaluation might be required to establish equivalency to a U.S. degree.
3. Employer-Employee Relationship: The applicant must be employed in a W-2 position, where the employer has direct control over their employment terms, tasks, and work location.
4. Fair Wage Requirement: Employers must attest that they will pay at least the prevailing wage for the position to ensure fair compensation, as part of the Labor Condition Application (LCA) filed with the Department of Labor (DOL).

To read more on how The Build Fellowship assists foreign nationals with career solutions that bypass the H-1B lottery, see our General Fellowship Information Page.

Step-by-Step Guide to the H-1B Application Process

1. Employer Registration for the H-1B Lottery (Cap-Subject H-1Bs Only): The annual H-1B registration period opens each March, during which time employers submit their candidates into the H-1B lottery pool. Given the limited annual cap of 65,000 visas (plus an extra 20,000 for U.S. master’s degree holders), “winning” the lottery is essential for most applicants.
   • Regular Cap: 65,000 visas for all general applicants.
   • Master’s Cap: Additional 20,000 visas reserved for U.S. advanced degree holders.
2. Only selected candidates move forward with the petition process.
   
   2024 Updated Rule: Under a new rule, each applicant is now given only one entry in the H-1B lottery based on their passport number, limiting multiple entries that previously could be submitted by different employers. This change aims to create a fairer process and reduce duplicate entries in the lottery.
   
   
3. Filing the Labor Condition Application (LCA): The employer files an LCA with the DOL to ensure compliance with wage standards, safeguarding U.S. workers from being adversely affected by hiring foreign workers. The LCA is submitted online, and approval typically takes about a week.
4. Submitting Form I-129 (H-1B Petition): Once the LCA is certified, the employer files Form I-129 with USCIS. The filing package includes a job description that validates the role as a specialty occupation, evidence of the candidate’s educational qualifications, and USCIS filing fees. A Form I-129 can take two to seven months for standard processing, although premium processing is available for an additional fee, ensuring a decision within 15 business days.
5. Visa Stamping and Consular Interview: If the Form I-129 petition is approved, and a candidate is outside the U.S., that candidate must attend a visa interview at a U.S. embassy or consulate abroad. Applicants complete Form DS-160, pay the required visa fees, and present essential documents, including passports, the DS-160 confirmation page, and the USCIS Form I-797 H-1B approval notice. If the interview goes well, the H-1B visa is stamped into the applicant’s passport.
6. Arrival in the U.S. and Start of Employment: Upon arrival, visa holders present their documents to Customs and Border Protection (CBP) and can then legally begin work with the sponsoring employer.

Navigating the H-1B Grace Period During Employment Transitions

Unexpected employment changes can disrupt your H-1B status. Thankfully, USCIS provides two types of grace periods for H-1B holders:

1. 10-Day Grace Period: This grace period is offered at two points:some text
   • At the beginning of your visa validity period, allowing you time to settle in the U.S. before starting work.
   • After your employment naturally concludes, giving you 10 days to wrap up your affairs before departing.
2. 60-Day Grace Period: For those who experience sudden termination or resignation, the 60-day grace period allows you to secure a new job, change visa status, or leave the U.S. If you intend to change employers, the new employer must file a new H-1B petition on your behalf.
3. During the 60-day grace period, your options include:

• Finding New Employment: Using H-1B “portability”, you can work for a new employer as soon as USCIS receives that employer’s H-1B “transfer” petition.
• Starting a Company: If you have sufficient funding and can establish a clear employer-employee relationship, you may file an H-1B petition through your own company, meeting the requirements as both the employer and employee.
• Changing Visa Status: Some potential visa statuses include F-1 student status, H-4 dependent status (if eligible), or B-1/B-2 visitor status.
• Leaving the U.S.: Departing within 60 days avoids unlawful presence and potential re-entry bans.

Cap-Exempt H-1B Options with The Build Fellowship

Given the restrictive nature of the H-1B lottery, cap-exempt options offer greater flexibility. Cap-exempt employers like universities and nonprofit organizations are not subject to the H-1B cap, meaning they can sponsor H-1B visas year-round. The Build Fellowship capitalizes on this opportunity by partnering with nonprofits and universities to create part-time mentoring roles for foreign nationals.

How The Build Fellowship Works:

• Part-time Employment: Fellows lead university students in industry projects leveraging expertise to guide students through project simulations and train them with skills in their specialized field.
• Concurrent Employment: Fellows can retain their full-time job by having their primary employer file a concurrent cap-exempt H-1B, sidestepping the lottery entirely.
• Support System: Our Fellowship program provides a network, and ongoing immigration support for skilled professionals who wish to remain in the U.S. without relying on the H-1B cap.

With our Build Fellowship Projects Directory, you can explore the initiatives fellows lead at our partner universities. To connect with immigration experts, check out our Vetted Immigration Attorneys for trusted advice.

Exploring Alternatives to the H-1B Visa for Skilled Professionals

For those not selected in the lottery or seeking an alternative pathway, here are some visa options:

1. Cap-Exempt H-1B Visa: This option allows professionals to work with certain U.S. employers that are exempt from the H-1B cap.
2. O-1 Visa: Suitable for individuals with extraordinary ability in their field, proven through achievements and recognition.
   Our O-1 visa program, Build Extraordinary, provides comprehensive agent representation and legal services, allowing talented individuals to focus on their careers while we manage their visa application.
3. L-1 Visa: For intracompany transfers, ideal for multinational employees working in U.S. branches.
4. F-1 Visa with OPT/STEM OPT: Students graduating from U.S. institutions can work on an F-1 visa through Optional Practical Training, especially beneficial for those in STEM fields.

The Build Fellowship allows you to pursue cap-exempt employment while continuing your career in the U.S. without interruption. Learn more on our Fellowship Information Page.

Frequently Asked Questions

1. Can I change employers on an H-1B visa?
   Yes, H-1B visas are “portable”, meaning individuals in H-1B status can switch employers as long as the new employer files an H-1B petition on their behalf. Under the portability rules, you can start working with the new employer upon USCIS receipt of the new employer’s H-1B petition.
2. How does The Build Fellowship help foreign nationals bypass the H-1B lottery?
   The Build Fellowship partners with nonprofits and universities, allowing foreign nationals to take on part-time mentorship roles, making them eligible for a cap-exempt H-1B status. This allows your primary employer to file a concurrent cap-exempt H-1B, bypassing the lottery altogether. Learn more on our General Fellowship Page.
3. How can I maintain lawful status during job transitions?
   The 60-day grace period provides time to secure new employment, change visa status, or prepare for departure. The Build Fellowship offers cap-exempt options for skilled workers looking to transition seamlessly.
4. Can H-1B visa holders' spouses work in the U.S.?
   Yes, H-4 visa holders (spouses of H-1B holders) may apply for work authorization if their H-1B spouse has an approved Form I-140, the initial step towards a green card.

About The Build Fellowship: Cap-Exempt H-1B Solutions for Skilled Professionals

The Build Fellowship offers a powerful solution for foreign nationals who want to continue working in the U.S. but have not been selected as part of the H-1B lottery. Through our partnerships with nonprofits and universities, we enable fellows to work in cap-exempt roles while retaining their primary employment. For inspiring success stories, read testimonials from clients who have succeeded through The Build Fellowship.

Law firms interested in partnership opportunities with The Build Fellowship can visit our Partnering for Success Page.

‍The Build Fellowship is committed to empowering foreign nationals by providing seamless, cap-exempt visa solutions, supporting your professional journey in the U.S. without the uncertainty of the H-1B lottery.

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