Let our deep legal expertise and technology-enabled processes guide you in your U.S. immigration journey
Home > Blog > H-1B Visa
Last Updated On: October 10, 2023 | Published On: November 22, 2017
The H-1B is a highly-coveted visa that can be difficult to get. Because of this, many of those with advanced degrees ask a common question: are it easier to get an H-1B for PhD holders and students? In this post, we’ll go over the H-1B process and highlight the areas where having a PhD may give you the competitive edge you need to work in the U.S.
If you are a PhD holder or student who is considering getting an H-1B visa, here is a basic overview of the application process.
The H-1B visa is a nonimmigrant visa designed for foreign nationals with specialty occupations. To be considered eligible, you must have a job offer for a specialty position and at least a bachelor’s degree in a related field. For the most part, “specialty position” refers to a job that requires at least a bachelor’s degree to perform.
Because a sponsoring employer is required, you cannot self-petition for an H-1B visa for PhD holders. Your employer will need to fill out and file an I-129 petition on your behalf and also get a Labor Condition Application for you. The latter form is filed with the Department of Labor and serves to ensure that you are being paid at least the prevailing wage and that hiring you will not adversely affect other employees.
Your employer should know that the I-129 cannot be filed until April 1st of the year that you intend to work. On that day, your petition will be placed in a pool from which 80,000 will be randomly chosen in what is known as the H-1B visa lottery.
If your petition is chosen, it will go on to processing, which may take up to six or seven months. If your petition is approved, then you will receive a notification and you will be able to start working as an H-1B nonimmigrant on October 1st of that same year. If six months is too long, you can always pay an extra fee for the premium processing service. However, you should always consult your immigration attorney to determine if this will be appropriate for your case.
While the H-1B process for PhD holders is not necessarily different from the normal process, you will find that you have an advantage in the lottery. This is because the lottery is broken down into two stages, the advanced degree cap and the regular cap.
Once all petitions are in, the USCIS will randomly select 20,000 petitions for those that have advanced degrees. Those petitions for advanced degrees that were not selected in the first stage will be re-entered into the regular cap, essentially giving you a second chance at being selected.
There has been talk about making an exception for PhD holders. The Stopping Trained in America from Leaving the Economy Act (or STAPLE Act) has bee introduced by two congressmen into the House of Representatives. It aims to excuse PhD holders from the limits placed on H-1B visas and green cards provided that they have s STEM degree (science, technology, engineering, and mathematics). The reasoning behind this is to keep highly-skilled workers with PhD’s in the U.S. to benefit the economy by facilitating their immigration.
While this change would be beneficial for getting an H-1B for PhD holders, the current administration has taken measures to restrict access to the H-1B visa with the intention of increasing the number of U.S workers that are hired. The result of this opposition is yet to be seen.
Now that you have your H-1B, you may want to pursue avenues that make your stay in the U.S. more permanent. For that, you want to go for an employment-based green card. The two most common green cards for H-1B holders are:
EB-3: this green card is meant for those with bachelor’s degrees as well as both skilled and unskilled workers. As a PhD holder, you are probably more than qualified for this green card.
EB-2: To be considered eligible for this green card, you must either have an advanced degree or be able to demonstrate exceptional ability in your field. Because you are an H-1B holder with a PhD, this is likely the ideal option for you due to the fact that the EB-2 generally has a much shorter waiting period.
Once you choose your green card, your employer must file an I-140 petition on your behalf and also obtain a PERM Labor Certification. The PERM is very similar to the LCA, though it is much more involved. To get the PERM, your employer will need to post job ads for your position and interview likely candidates with the intention of filling your position with a qualified U.S. worker.
When the USCIS receives your I-140, that date will be marked as your priority date. Check this against the final action dates given for your country and green card category according to the monthly visa bulletin released by the Department of State. Once your priority date matches or passes the final action date, you will be able to adjust your status or go through consular processing.
Because you are already in the U.S. under an H-1B for PhD holders, you are given the option to adjust your status, which simply involves filing an I-485 to adjust from nonimmigrant to immigrant status.
You can also choose to go through consular processing, which means that you must go to a U.S. Consulate or Embassy in your home country to take part in an interview with a consular officer. Despite its apparent complexity, this may be the cheaper and faster alternative depending on your unique situation.
While the H-1B might seem like the ideal visa for PhD holders, the competitiveness of it combined with the relatively small chance of being selected for the lottery can present obstacles. Fortunately, there are alternatives to consider that may be more appropriate based on your circumstances.
The J-1 is program-based rather than employer-based, meaning that an educational or research entity can sponsor you. This is especially useful for PhD students, physicians, and anyone else who’s work involves a program on the J-1 list.
The caveat for this visa, however, is the home residency requirement. This means that, after your stay in the U.S. under J-1 status, you must return to your home country and spend a minimum of two years there before returning to the U.S. for another visa or green card.
The way to bypass this requirement is to get a J-1 visa waiver, which you can do by reading this post about the J-1 visa home residency waiver. Additionally, keep in mind that the J-1 visa does not have dual intent, meaning that you cannot pursue a green card while under J-1 status.
This nonimmigrant visa is reserved for foreign nationals with extraordinary achievement in certain fields. The USCIS provides a near-comprehensive list of evidence that can demonstrate your achievement. If you have held your PhD for some time and have published material in your field, you may qualify.
The main benefit of the O-1 visa is the fact that it can be renewed indefinitely. It is also a dual-intent visa, so pursuing a green card will not incur consequences.
Put simply, this is a student visa. If you are on your way to a PhD, you can apply for an F-1 to study in the U.S. Your visa will be valid until a certain time after your graduation and those with STEM degrees may stay longer. This visa is not dual intent and you will need to switch to another visa, such as the H-1B for PhD holders, in order to apply for a green card.
When it comes to the intricacies of immigration law, there is nothing more valuable than having a seasoned expert in your corner. In order to make sure that you are taking the best route and avoiding any unnecessary and expensive complications, the best thing to do is to hire the services of an immigration attorney.
At VisaNation, there is no shortage of experience that you can take advantage of throughout your H-1B process. VisaNation Law Group lawyers have helped hundreds of individuals like yourself obtain their H-1Bs and similar visas using our optimized methods.
To contact a VisaNation Law Group attorney, you can fill out this form to schedule your consultation with our office today.
Tags: H-1B cap, H-1B Lottery, H-1B Rules, H-1B Sponsorship
