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Can any company apply for H1B?

The H-1B visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations. However, not all companies are eligible to apply for H-1B visas for their employees. There are specific requirements that must be met in order to file an H-1B petition.

Who is eligible to file for H1B?

In order to file an H-1B petition, the petitioner must be a U.S. employer. A U.S. employer is defined as:

  • A U.S. company (corporation, LLC, partnership, etc.)
  • A U.S. branch/subsidiary of a foreign company
  • A U.S. citizen
  • A U.S. permanent resident

The key factor is that the entity or individual must have an Employer Identification Number (EIN) issued by the IRS. Self-employed individuals and sole proprietors can file H-1B petitions for themselves if they have a valid EIN.

What types of companies are not eligible for H1B?

Foreign companies that do not have a U.S. subsidiary or branch office cannot directly file for H-1B visas for their employees. This means that the foreign company itself cannot serve as the H-1B petitioner. Additionally, the following types of entities cannot file H-1B petitions:

  • Staffing/recruiting agencies for the purpose of placing workers at third-party worksites
  • Employment placement agencies
  • Labor brokers
  • Non-agent middlemen
  • Job contractors

There are limited exceptions where staffing companies may be able to file H-1B petitions. But in general, a third-party placement is not permitted for H-1B workers.

What are the requirements to qualify as an H1B employer?

To qualify as an H1B employer, the petitioner must:

  • Have an employer-employee relationship with the H-1B beneficiary
  • Be able to pay the required wage for the specialty occupation
  • Have overall control and supervision of the H-1B worker
  • Provide a valid job offer for a specialty occupation

The employer must be able to demonstrate that they have sufficient work and the ability to pay the offered wage for the entire time requested in the H-1B petition. USCIS reviews factors such as the size and financial resources of the company to determine if the H1B employer requirements are met.

What jobs qualify under the H1B visa program?

The H-1B program is specifically designed for “specialty occupations.” These are defined as occupations that require the theoretical and practical application of specialized knowledge along with at least a bachelor’s degree or equivalent in the specific specialty.

Some examples of roles that commonly qualify for H-1B classification include:

  • Computer programmers
  • Software developers
  • Computer systems analysts
  • Database administrators
  • Software engineers
  • Mechanical engineers
  • Financial analysts
  • Medical professionals (doctors, nurses, dentists)
  • Veterinarians
  • Accountants
  • Economists
  • Architects

Generally speaking, jobs in IT, engineering, science, accounting, architecture, and medicine qualify for H-1B status. The key factors are that the job is in a professional/specialized field and that the minimum requirement is a bachelor’s degree or higher.

What is the process for filing an H1B visa petition?

The H-1B visa petition process involves the following steps:

  1. The employer files a Labor Condition Application (LCA) with the Department of Labor (DOL).
  2. After the LCA is certified by the DOL, the employer completes and submits the H-1B petition (Form I-129) with the required fees and supporting documents to USCIS.
  3. If the petition is approved, USCIS issues an I-797 approval notice and the employee can apply for the H-1B visa at the U.S. embassy/consulate and enter the U.S. in H-1B status after approval.

It is important to note that there is an annual cap on the number of new H-1B visas issued. The H-1B cap is currently 65,000 per fiscal year, with an additional 20,000 reserved for workers with a U.S. master’s degree or higher. Due to high demand, an annual H-1B lottery is used to select petitions.

Can a start-up or small business qualify for H1B?

Yes, start-ups and small companies can qualify to file H-1B petitions, provided they meet the requirements. The key factors are:

  • The company is a registered U.S. business entity (corporation, LLC, partnership, etc.)
  • The company has sufficient resources and work available for the H-1B employee
  • The company can pay the required wage for the duration of the H-1B validity period
  • The job being offered meets the criteria of a specialty occupation

USCIS does take company size, financial resources, and years in business into consideration when determining if the H-1B sponsor qualifies as a legitimate employer. Start-ups and small companies may need to provide additional documentation like business plans, funding documents, client contracts, etc. to prove their ability to support the H-1B worker.

What are the main reasons an H1B visa petition could be denied?

Some of the top reasons an H-1B petition may be denied include:

  • The job does not qualify as a specialty occupation
  • The beneficiary does not have the required qualifications/degree for the offered role
  • The petitioner does not establish a valid employer-employee relationship
  • The petitioner does not have sufficient specialty occupation work available
  • The petitioner cannot afford to pay the offered wage for the entire requested period
  • The offered wage does not meet the prevailing wage requirements
  • The petition has technical errors (signatures, fees, forms) or missing documents

Frequently, H-1B petitions are denied because the employer cannot demonstrate that the job itself meets the requirements of a specialty occupation. It is critical for employers to clearly establish how the offered role is professional in nature, requires specialized skills, and has minimum educational requirements.

Can a dependent apply for an H4 visa along with H1B primary applicant?

Yes, eligible dependents of an H-1B visa holder can apply for H-4 dependent status. The H-4 visa allows dependent spouses and children under 21 years old to accompany the H-1B worker to the United States.

To be eligible for an H-4 visa, the dependent must be either:

  • The spouse of the H-1B worker
  • The child under 21 years old of the H-1B worker

H-4 dependents are allowed to live in the U.S. for the duration of the primary H-1B worker’s authorized stay but are not allowed to work. Dependent spouses on H-4 status can apply for work authorization based on certain conditions.

Can dependents work on H4 EAD visa?

In general, H-4 dependents are not allowed to work while in the United States. However, certain H-4 dependents can apply for Employment Authorization Documents (EAD) which allow them to legally work.

The requirements to be eligible for an H-4 EAD include:

  • Must be the spouse of an H-1B worker
  • The H-1B spouse must either have an approved I-140 petition or be in H-1B status beyond 6 years under the AC21 extension

If approved for an EAD card, the H-4 spouse can work for any employer in any job or position. Having an EAD does not limit the kind of employment. Dependents on H-4 status cannot self-employ – they must work as employees for a company.

What are the typical visa interview questions for H1B?

During the H-1B visa interview, applicants can expect to be asked a variety of questions by the consular officer. Some typical H1B visa interview questions include:

  • What is your job title and job duties?
  • What degree do you hold and what is your field of study?
  • How is your field of study related to the offered job position?
  • Who is your employer and what does the company do?
  • Have you worked for this employer before? In what roles?
  • What will your specific day-to-day activities be for this job?
  • What is the offered salary for this position?
  • Are you currently working in H-1B status and seeking a visa renewal?

H-1B applicants should be prepared to explain how their education, work experience, and skills directly relate to the offered specialty occupation in the U.S. Supporting documents like transcripts, resumes, and employer letters help demonstrate qualifications.

What are the benefits of H1B visa vs L1 visa?

Factor H-1B Visa L-1 Visa
Eligible Candidates Foreign nationals in specialty occupations requiring specialized knowledge and a bachelor’s degree minimum Executives, managers or specialized knowledge workers employed abroad by the petitioning U.S. company or an affiliate for 1 continuous year out of the past 3 years
Petitioner U.S. employer U.S. company or organization
Annual Cap 65,000 + 20,000 master’s quota No annual limits
Maximum Length of Stay Up to 6 years total L-1A: 7 years max
L-1B: 5 years max
Work Authorization Only for sponsoring employer Only for sponsoring employer. L-1A eligible to work for qualifying “affiliates” after meeting requirements
Dependents H-4 dependents eligible, H-4 EAD may be available L-2 dependents eligible, no EAD
Dual Intent Allowed Not allowed
Processing Time Can take 6+ months Generally faster than H-1B, 2-3 months

As shown in the table, both H-1B and L-1 provide working status in the U.S., but have key differences in eligibility criteria, petitioners, duration of stay, work authorization, and processing times. Companies should evaluate both visa types based on their specific needs and transfer candidate profile.

What is the process to extend H1B visa?

To extend H-1B status, the employer must file a petition requesting an extension before the worker’s current H-1B validity expires. The steps include:

  1. Complete and submit Form I-129 petition for extension along with required fees and supporting documents
  2. Provide a copy of the previously approved I-797 form for the worker’s current H-1B
  3. Include evidence that the employee continues to work in the approved specialty occupation position for the sponsoring employer
  4. Submit updated employment verification letters, educational documents if any changes
  5. If approved, USCIS issues new I-797 approval notice with extended validity dates
  6. H-1B worker must have valid passport and can continue working for same employer once extension petition is approved

As long as the worker still has remaining time on their maximum 6 year limit, H-1B status can be extended in increments of up to 3 years at a time. The employer is required to continue paying at least the prevailing wage certified on the Labor Condition Application.

What is the process to transfer H1B to a new employer?

To transfer an H-1B to a new employer, the new employer must file a petition before the worker’s current H-1B status expires. The steps include:

  1. New employer files I-129 petition requesting H-1B transfer with fees and documents
  2. Include a copy of the H-1B worker’s most recent I-797 approval notice
  3. Submit letter from new employer confirming job offer
  4. Provide documentation on new job and qualifications
  5. USCIS reviews and approves new H-1B transfer petition
  6. H-1B worker must have valid passport and can begin working for new employer from the I-797 approval date

It is important that the transfer petition be submitted before the current H-1B expires to maintain valid status. The worker can begin employment with the new employer as soon as the transfer is approved – they do not have to wait for October 1.

Can H1B holders apply for a green card?

Yes, H-1B visa holders may apply for permanent resident status (green card) through employment-based immigrant petition. The steps involve:

  1. Employer sponsors worker by filing Form I-140 immigrant petition
  2. Immigrant petition is approved establishing worker’s eligibility for green card
  3. Worker files adjustment of status application (Form I-485) to apply for green card
  4. After approval, worker and dependents become conditional permanent residents
  5. Must file Form I-751 after two years to remove conditions and become full permanent residents

When the I-140 and I-485 are pending, the H-1B worker can obtain extended H-1B status beyond the 6 year limit until a decision is made on the green card. Obtaining permanent resident status allows the worker and dependents to live and work in the U.S. indefinitely.

Conclusion

The H-1B visa program allows U.S. employers to hire qualified foreign professionals in specialty occupations. However, there are specific requirements and eligibility criteria that must be met for a company to sponsor a worker for H-1B status. Small businesses and startups can qualify but need to demonstrate their legitimacy, ability to pay the required wages, and have qualifying specialty occupation jobs.

H-1B workers can be accompanied by dependents and eventually apply for permanent residence. Understanding the H-1B process and requirements allows employers to effectively utilize this program for filling talent needs from abroad.