The H1B visa is an employment-based visa and is the most sought-after in the United States. This is why the available annual slots get filled up within hours of opening the application window. Therefore, staying updated about the visa and application process is crucial to avoid missing out. Moreover, the rules concerning this visa and the opportunities it has to offer are constantly changing.
The application process for an H-1B visa may seem complicated, but all that’s needed is accurate information.
Thus, below are answers to frequently asked questions concerning H-1B visas, including the process, requirements, and more. Keep reading to learn more about the H-1B visa and better your chances of getting yours approved.
What does an H-1B Visa for a Prospective Employer Entail?
An H-1B is an employer-sponsored non-immigrant category that lets someone who isn’t a US citizen or permanent resident work in the country. The visa beneficiary works in a specialty occupation for up to six years unless there are peculiar exceptions.
The employer applies for the H-1B on behalf of the beneficiary and prospective employee through the USCIS. The H-1B employer is also required to pay the H1B beneficiary whichever is higher between the prevailing wage or actual wage.
H-1B procedures and record-keeping is complex and often require an attorney or trained personnel to complete the paperwork. H-1B visa is the most popular nonimmigrant worker visa in the US. Applicants may apply under Specialty Occupations, Fashion Model, or DOD (Department of Defense) Cooperative Research and Development.
The visa is obtained by foreign nationals who are eligible to perform specialty occupations, paid consultation, or engage in activities of related nonprofit entities in the United States. If there is a need for these individuals to remain beyond the stipulated time, they can commence the green card application process. The green card process, like many others, requires the assistance of an attorney who offers immigration legal services.
Who is Eligible to File and Obtain H-1B Visa Petition?
Only prospective US-based employers can file the H-1B visa petition on your behalf. That implies that you must have gotten a job offer from a US employer to qualify for the visa. Also, the job has to match the following specialty requirements:
- It must require a bachelor’s or higher degree or its equivalent, and
- It must be too complex for someone with lesser qualifications to perform, and
- You must have the academic qualifications and field experience required to fulfill the specialty occupation.
H-1B beneficiaries cannot self-sponsor their petitions, except on rare occasions which are subjected to thorough scrutiny by the USCIS. Professional occupations that qualify for H-1B status include engineering, mathematics, biological, physical, social sciences, and business administration. The position will require at least a bachelor’s degree in a related area to qualify for an H-1B visa, which the applicant must have.
Does a Job in H1B Status Have a Minimum Wage Paid?
Yes, there is a minimum salary for a job in H-1B status, to which the employer must provide proof. The US employer hiring the H-1B worker must provide documentation to prove that it can and will pay the latter the necessary wage. Two types of wages an H-1B employee may receive include the prevailing wage and actual wage. The prevailing wage refers to the salary workers in similar occupations in the geographic area of potential employment are paid.
The actual wage refers to the wage which the employer pays employees in similar occupations at the intended employment location. The employer has to certify that it isn’t displacing any US employee to hire the H-1B beneficiary. Such will also need to certify that there are no work stoppages like strikes in the company or occupation where the H-1B applicant will be employed.
The employer will make these declarations by submitting an LCA (Labor Condition Application) form to DOL for certification.
How Long Can You Stay on an H-1B Visa in the USA?
You can generally stay up to six years in the United States on an H1B visa that your job duties cover. As a holder of the H1B visa, you may be admitted for up to three years; the admission time can be extended for another three years.
Once the time has elapsed, you will be required to return to your home country within sixty days. This sixty-day period is known as the grace period and is granted to employees who resign, are terminated, or are laid off from their positions.
After leaving the country, you will be required to remain outside the US for at least one year before another visa can be approved. However, some H1B visa holders working on Department of Defense projects may remain in the status for up to ten years.
Meanwhile, you may obtain a one-year extension beyond the six-year limit if you have a labor certification. You may also apply for an extension if you have the 1-40 Petition for Immigrant Worker form pending over 365 days.
Furthermore, if your 1-140 petition has been approved, but the immigrant visa isn’t available to you, you may apply for a three-year extension.
What is the H1B LCA?
The H-1B LCA (Labor Congress Application) is a requirement for the visa application process. The Department of Labor (DOL) uses it to determine whether an employer is fit to employ an H1B employee or not.
The LCA tells the DOL all it needs to know about the intended US employer, including whether or not it can pay the prevailing wage. It is the first step of the H-1B application process and must be filled out and certified by the DOL before further steps are taken.
An LCA includes the following information about the employer, employee, and specialty position:
- Job title, duration, and location;
- The prevailing wage for similar positions in the geographical area of the job;
- Salary offered to the H1B beneficiary for the job being offered;
- Employment status of the employee, whether part-time or full-time;
- H1B employer’s contact information, and
- How many H1B employees will be working in the same position.
What Does the H-1B Visa Process Entail and Do You Have to Pay Taxes?
The process is initiated by the applicant’s potential employer, who files for an LCA with the Department of Labor. The LCA has to be filed first before the H1B visa is filed. Once the employer has fulfilled all the requirements to obtain the LCA, such can file the H1B visa. After obtaining the LCA, the employee will file a petition with the USCIS on behalf of the H1B beneficiary.
The documents to submit will include proof that the applicant and job offer meet the specialty occupation requirements. The application start date is April 1st of every fiscal year; the work start date is no earlier than October 1st of the same year.
The USCIS receives thousands of H1B visa petitions every year, and the number increases each year. Thus, you may want to prepare your file with an immigration attorney before the application start date to increase your chances.
How Long Does the H1B Process Take for Foreign Nationals, and Can You Speed It Up?
The H-1B visa processing duration differs from one case to another; petitions are usually approved within two to five months. However, your potential US employer may submit the LCA up to six months before your intended resumption date. The H1B visa petition may not be filed before April 1st in most cases for an employment start date of October 1st.
Meanwhile, speeding up the H-1B visa application is possible, but it’ll require paying more than expected. The USCIS promises premium processing service of H1B visa applications for $1,225 to $1,440 above the standard filing fees. The fees also include action on your petition within fifteen calendar days.
To enjoy premium processing, you must show proof of social security benefits, payment of social security taxes, and a USCIS receipt notice of your application for a nonimmigrant status keeping you in the United states temporarily.
What Does the Portability Rule for H1B Visa Petitions Say?
The portability rule for H1B visas states that if you were previously granted an H1B visa, you could begin working for a new employer. You can start working for such as soon as they file an H1B petition for you. You wouldn’t necessarily have to wait to receive the 1-797 notice that the application has been received. The rule states that you can begin work once you’ve got the evidence that the USCIS has received your application.
Thus, you can port to a new H1B employer as soon as your new H1B petition has been filed. You do not have to wait for the USCIS to approve a new petition, which can take at least three months.
Who is Qualified for H1B Visa Portability?
Petitioners who meet the following conditions are eligible for immediate employment authorization portability:
- Such has been lawfully admitted to the US – that is, you entered via the accepted means and with an inspection. Legal admission into the United States means you were processed by CBP and granted a 1-94. Visa-exempt applicants may have other means of proving legal entry into the States.
- Such filed the new H1B employment petition before the end of their authorized stay period, and the USCIS or CBP granted it. This implies that the new H1B visa petition must have been filed before the end date of the first petition.
- The petitioner was admitted with authorization since they were lawfully granted entry into the US.
It is important to speak to the attorney or experienced personnel on your case before commencing with portability processing. This is to ensure you are not violating your H1B violations, which can result in it being revoked.
What is a Specialty Occupation, and What Are the Required Documents Involved?
An H1B applicant will be entering the US temporarily to offer services in a specialty occupation. The specialty occupation is a service requiring the theoretical and practical application of highly specialized knowledge to perform it fully. This occupation type requires the completion of a specific education course culminating in a degree, bachelor’s or higher, in the US.
The H1B employee must prove that they are eligible for the specialty occupation by submitting the following documents:
- A copy of the immigrant’s US bachelor’s degree or higher as required by the occupation,
- A copy of evidence equivalent to the US degree or evidence of education and experience equivalent to the required US degree,
- Any required license or official permission to perform the specialty occupation in the state of intended employment, and
- Any written contract between the H1B beneficiary and the US H1B employer or a summary of terms of an oral agreement. The employee will be employed under the said contract or summary of terms.
What Are the Benefits of an H-1B Visa?
The H-1B status provides opportunities for professionals on a development project who have a certified labor condition application to accept temporary employment in a professional capacity in the United States. The H1B visa applicant receives a salaried income from his employer and is allowed to stay up to six years in the US.
The applicant’s spouse and children below twenty-one years of age may remain in the country for the duration of the H1B beneficiary’s authorized stay. Such are issued H-4 visas and aren’t allowed to work as H-4 visa holders.
The applicant’s family, including their spouse and children below 21 years old, can attend school on their H-4 visa status. Finally, beneficiaries may be permitted to work for two employers for the duration of their H1B status. This is because more than one H-1B petition may be in effect simultaneously.
What Is the H-1B Visa Annual Cap, and How Does It Operate?
H-1B visa cap refers to the limit of H1B petitions the United States Citizenship and Immigration Services is allowed to issue in a fiscal year. An H1B fiscal year starts on October 1st and ends the following year on September 30th. Individuals who seek permanent residency or a green card can have their documents properly filed to be enlisted.
The regular H1B cap is currently set at an annual numerical limit 65,000 for the initial period which is always the authorized period determined by Congress. Out of the 65,000, 6,800 are reserved for Singapore and Chile nationals, leaving 58,200 for the other applicants. An employer or other employees who hold a particular position in an establishment or want a dual intent visa can apply for the H-1B status at this time.
There are two types of H1B cap: the regular cap and the masters’ cap. The H1B Masters Cap is reserved for applicants with a master’s degree from a reputable US institution. A degree requirement is a key to apply for this type of H-1b status and the absence of it will adversely affect your application.
It is also sometimes referred to as master’s or advanced degree exemption and is capped at 20,000 visas. This brings the total H-1B visa cap per fiscal year to 85,000, including those available for similarly employed workers who are physically present.
When Can You File Your H-1B Visa Petition?
The H1B visa application process has a timeframe because the cap regulates it. Employers are expected to submit petitions on behalf of their intended employees from April 1st, the application start date. The application window stays open from the first business day in April until the petitions reach 85,000 or after seven days. Collection of H1B visa applications stops after that.
An employer files a petition when an application for an H1B visa has been denied unjustly. It can be for employees in its service center who perform services that are unique to the business or individuals who occupy unique positions in the business.
Such a person is expected to provide all the paperwork of the foreign national for whom the application is filed. If possible, you can attach the dual intent visa and a motion challenging the visa denial. In your petition, you are expected to copy the appropriate authorities including the consular officer for the consulate abroad.
H-1B visas have relatively low requirements compared to other non-immigrant work visas, making them the most sought-after. Unfortunately, that also means it gets filled up pretty quickly – usually within hours after the application window has been opened.
Thus, applicants are advised to get the employment authorization document ready and forms accurately filled and completed before time. This way, you can submit your application as soon as, if not immediately, the application window opens.
Worthy of mention is that you can apply for premium processing if you have an attorney that understands the process. This is why building a good attorney client relationship is essential to facilitate the process. Your attorney checks to be sure your state and federal taxes are intact before making such an application.
Richard Herman Legal Group Can Help You
In your quest to understand how HIB visa processes work, you are not alone. If at any point you need help with any step in the process, we can help you. We are an award-winning immigration law firm with over 26 years of experience with similarly qualified workers like you.
You can schedule an appointment with us today by calling +1-216-696-6170. If you want to schedule a personal consultation with Attorney Richard Herman, you can book online and consultations can be done via Facetime, Skype, Zoom, WhatsApp, or in-office.
The green card process can be truncated by several factors, including denial of nonimmigrant visa. Once you know the required documents and the H-1B application process, applying is easy. However, the steps can be tricky, and only an immigration attorney or experienced immigration service provider can ensure you don’t miss any. So, we recommend working with any of those professionals after gathering all the information you can on an H1B visa.