The ultimate guide to the H-1B visa and new H-1B spouse visa

Immigration, Rights

By Greg McLawsen

Co-written by Mike Allen, immigration lawyer and founding attorney of Advenienz Legal PLLC.

The basics: The H-1B professional visa

You have probably seen them before, but the basic requirements for an H-1B specialty occupation visa are:

  • The H-1B sponsor must be a U.S. employer.
  • The job offered needs to be a “specialty occupation.” What does that mean? Roughly speaking, that the professional job requires at least a bachelor’s degree for entry into the position.
  • The “speciality occupation” must be related to your studies.
  • You must be paid at least the “prevailing wage” for the job (i.e., what an American worker would expect to be paid).
  • A visa number needs to be available under the annual H-1B quota system or “H-1B cap.”

The numbers: Filing date and visa quota

April 1, 2015 is the earliest possible filing date for H-1B visas for the 2016 season, for a start-work date of October 1, 2015 or later. There only 65,000 H-1B visas available each year under the quota. In addition, there are 20,000 “cap exempt” visas for holders of a masters-level education or higher from a U.S. university.

Commentators predict that the H-1B cap will be reached quickly this year — possibly within the first five days after April 1, as was the case in 2014. It is critical to ensure that a cap-subject H-1B filing is properly completed; technical errors can cause the filing to be rejected and the chance at a visa will be lost for now.

The lottery: How it works

You may have heard of the H-1B lottery, but it’s not the sort of lottery you can buy a ticket for. Instead, this is the government’s way of assigning the available visas when the demand for H-1B visas far outstrips the supply under the official quota. Basically, it works like this:

  • USCIS first looks for “cap-exempt” petitions for workers with U.S. advanced degrees — master’s level or higher. Since there are only 20,000 visas under the advanced degree exception, if USCIS gets more than 20,000 of these petitions the extras go back into the general H-1B pool with everyone else.
  • This leaves USCIS with a pool of general H-1B petitions and the leftover cap-exempt visas. A computer application is then used to randomly pick 65,000 petitions.
  • Winners of the lottery will be forwarded for further processing by USCIS. The petitions that are not selected are returned to the filers, along with the application fees.

What do you do if you’re not selected for an H-1B visa? You have options. Learn more in our next article, “7 alternatives to the H-1B visa.”

The new H-4 dependent visa, for spouses of H-1B workers

Historically, the spouses of H-1B workers have been left in unemployment limbo. The spouse or unmarried child of an H-1B visa holder was able to get an H-4 visa, but unless the H-4 spouse got his own visa, he was not authorized to work.

USCIS announced an important change to that policy this year. Starting May 26, 2015 certain spouses of H-1B workers will be eligible to apply for work authorization as an “H-4 dependent” of the primary worker. The new program is available only for spouses of H-1B holders who are in the process of seeking permanent residency, and where the government has approved the initial immigrant petition for that process.

In practice, spouses of new H-1B holders generally will not be able to seek an H-4 work permit right away. The rule change tends to benefit spouses of workers who have held H-1B status for several years already, due to the long processing times involved with employment-based green cards.

Learn more about H-1B visas

Visit Avvo to read more guides and tips about the H1-B visa petition process. And check out the USCIS website:

Do you have questions about your application? Use Avvo Advisor to speak to a top-reviewed immigration attorney within minutes. Just select your location, choose “immigration” and purchase your session for $39, and an immigration lawyer will call you within minutes.

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Mike Allen is the founding attorney of Advenienz Legal PLLC and of counsel to Puget Sound Legal. Mike focuses on U.S. immigration law, with an emphasis on business immigration. He assists public and private growth companies and entrepreneurs with relocation strategies for bringing talented workers to the United States on a temporary and permanent basis.