The h-1b visa is one of the most popular visas available, and the benefits an H-1B visa holder can get are many.
Under the H-1B program, US companies can temporarily employ foreign workers in professional occupations typically requiring a minimum of a bachelor’s degree or higher.
Year after year the number of applicants increases, making it increasingly difficult to be selected in the existing lottery process.
Each year 65,000 new visas are made available, with an additional 20,000 visas for those with a master’s degree.
However, in the last fiscal year, over 300,000 applications were received by the USCIS. For such a reason, one must imagine how frustrating it is to have a petition selected in the lottery and subsequently denied due to some deficiency in the filing process.
To help you fill out a winning petition, we prepared a list with our top tips for petition filing and finally get your H1B visa stamp.
The application process begins with finding a sponsoring employer for your petition since the H-1B visa requires an existing employer-employee relationship. It is not possible to apply for an H-1B visa on a self-employment basis.
The sponsoring employer is responsible for the application process, which can be made no more than six months before the employment start date requested for the beneficiary.
For FY 2023, USCIS continued the two-step process, with important dates to watch out for:
- March 1: H-1B registration period opens at noon Eastern.
- March 18: H-1B registration period closes at noon Eastern.
- March 31: Date by which USCIS intends to notify selected registrants.
- April 1: The earliest date that FY 2023 H-1B cap-subject petitions may be filed.
Step 1: The registration process
As of 2020, US Citizenship and Immigration Services implemented the electronic registration process for the H-1B cap. This process has streamlined processing by reducing paperwork and data exchange and has provided overall cost savings to American companies seeking to file H-1B cap-subject petitions.
The registration process begins at noon Eastern Time on March 1 through noon Eastern Time on March 18, 2022.
All prospective petitioners must create an online account on USCIS’s website and register the prospective employee details as well as the details of the prospective employer:
- The employer’s name, Federal Employer Identification Number, and primary office address.
- The name, job title, daytime phone, and email address of the employer’s authorized representative.
- The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number.
- Whether the beneficiary has earned a master’s or higher degree from a U.S. institution, and if so, the degree and institution.
Prospective employers can register more than one beneficiary but must file separate registrations for each foreign worker and pay a 10$ fee per application. The applicant will receive this fee back if the petition is not selected.
If the number of applicants exceeds the annual cap for the H-1B visa, then USCIS will randomly select applications through a lottery process.
Step 2: application process
If an application process is selected at the lottery process, the applicant will receive a notice from USCIS giving them a 90-day window to fill out the petition for the H-1B visa and submit all forms and supporting documents.
For FY 2023, USCIS plans to announce the selected petitions by March 31.
How to prepare for the application process?
Before March 1 applicants must have everything in order to ensure a successful application. Employers seeking foreign workers for specialty occupations must prepare beforehand:
#Finding an eligible nonimmigrant worker
Prospective employers must assure that the beneficiary is eligible for the H-1B visa:
the foreign national holds a bachelor’s degree or a master’s degree and the degree is equivalent to the position requirements, from an accredited educational institution or an equivalent foreign degree in the occupation.
#Check for eligibility for the advanced degrees cap
Foreign workers holding a master’s degree have the benefit of being able to file under the advanced degree exemption.
All unselected master’s applications not selected at the regular cap will enter the master’s cap, meaning that master’s degrees holders have two shots at the lottery.
#Review the job position
A thorough review of the job offer is advisable. The job descriptions must be detailed and show a direct connection between the candidate’s educational level and the offered job duties.
Inform about the prevailing wage and make sure that the job duties qualify as a specialty occupation, otherwise, the USCIS may not consider the position eligible for the H1B status.
#Confirm the prevailing wage requirement
Employers are expected to pay their H-1B workers at least the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed workers. This wage rate must be reported on the labor condition application.
Although the regulations governing the LCA process do not require an employer to use any specific wage methodology to determine the prevailing wage, they do require that the prevailing wage be based on the best information available at the time the employer files an application.
The information must come from a legitimate source of wage information, which may include a wage rate set forth in a collective bargaining agreement.
#Gather all relevant documents for the petition
Having all supporting documents beforehand can be of great help: the applicant’s resume, the employment agreement, an experience evaluation, proof of the employee’s education, relevant training certificates, any professional membership documents, the required filing documents, a letter of support, the employee’s valid license when one is required.
See if the prospective employee hasn’t been previously counted against the cap
If the foreign national is already under a valid H-1B status they are counted against the cap.
An H1B visa holder moving to a new employer or looking for a visa extension does not need to worry about the annual cap.
Also, consider if the employer is not cap-exempted:
- Institutions of higher education: a college or university are examples of such institutions and most of them are non-profit entities.
- Non-profit entities which are “related to” or “affiliated with” institutions of higher education: the most common forms of such H-1B sponsors are research labs, medical hospitals, etc, that are affiliated with colleges and universities.
- Non-profit research organizations: there are several hundreds of establishments in the US that fall in this class, but “not for profit research organization” must mean that the establishment must be “not for profit” as well as a “research” entity.
- Government research organizations: defined as “a United States Government entity whose primary mission is the performance or promotion of basic research or applied research.”
Tips for filling an H-1B petition
#Register on time
As obvious as it may sound, registering on time is crucial for the H-1B process. It does not matter how meritorious your application might be if you did not register for the lottery process at the proper time. Your application will not be considered.
#Carefully fill out Form I-129
This seems basic, but it is important to complete all required sections of Form I-129, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement in accordance with the regulations and form instructions.
#Make sure information is accurate
Ensure that any information provided during the registration process matches the information provided on the visa petition.
If any information does not match, USCIS might request the applicant to provide an explanation with the petition and supporting documentation as to why there was a change or why the information does not match the petition, or USCIS may simply reject or deny the petition.
#Sign all the forms
Make sure each form has an original signature, preferably in black ink.
#Submit more than one petition
A foreign worker can work for more than one employee under h1b status, so you should take advantage of as many applications as possible for different employers.
Having multiple petitions filed by different prospective employers can increase the chances of being selected.
#Be careful with duplicates
Keep in mind that a prospective petitioner may only have one registration submitted per beneficiary per fiscal year, otherwise USCIS will invalidate all registrations submitted for that beneficiary by that prospective petitioner from the selection process.
#Provide strong evidence that the employer can pay the prevailing wage
It is important to show that the prospective employer can afford to pay the prevailing wage according to the attestation made on the Labor Condition Application.
Remember that the prevailing wage is one of the H-1B visa requirements. Submitting tax records or bank statements may suffice.
#Make sure the position matches the employee’s qualifications
As mentioned before, petitioners must ensure that the job positions match the qualifications of prospective employees. The beneficiaries must have specialized knowledge related to the position.
#Ensure that the job is under the specialty occupation category
To be considered a specialty occupation, the occupation must require:
- Theoretical and practical application of a body of highly specialized knowledge; and
- Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.
Failing to demonstrate that the job is a specialty occupation will lead to denial of the petition.
Part-time jobs are eligible for H-1B visas, provided that they meet the specialty requirements.
#Pay all the filing fees
All H-1B fees must be paid when applying for the H-1B visa. All petitions with incorrect filling fees will be rejected.
For FY2023, the fees are:
- H1B Registration Fee: $10
- Base filing fee: $460
- AICWA fee: $750 or $1,500
- Fraud prevent & detection fee: $500
- Fee-based on Public Law 114-113 ( if applicable): $4,000
- Premium processing fee (Optional) $2,500
According to USCIS orientations, a separate check for each fee must be submitted. For example, if the applicant is required to pay the base filing fee, the fraud fee, and the ACWIA fee, then they should submit three separate checks.
If the applicant submits only one check as a combined payment for all applicable fees and certain fees do not apply or are incorrect, USCIS will reject the H-1B petition. If the payment is made through money orders, they must be properly endorsed.
#Make sure all fees are paid by the prospective employer
All fees associated with an H-1B filing must be paid by the employer and cannot be borne by the H-1B employee. However, the premium processing fee can be paid by either the employer or the employee.
The employer is required to sign an attestation in the labor condition application that they paid the fees and that they will not seek reimbursement from the employee.
#Set a concrete start date
H-1B cap petitions for the FY 2023 cap must include an employment start date no earlier than Oct. 1, 2022.
Petitioners must indicate a start date of Oct. 1, 2022, or later (and six months or less from the receipt date of the petition) on the petition or it will face rejection or denial.
Generic start dates, such as “As Soon As Possible” or “ASAP” will be rejected by USCIS.
#”Unfairly increasing chances of selection”
As mentioned, USCIS will disregard any duplicate petitions made by the same company for the same beneficiary.
Moreover, applicants must certify that I further certify that the registration reflects a legitimate job offer and that the organization on whose behalf the registration is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary.
If the USCIS finds out that the employer worked with another entity to submit multiple registrations for the same beneficiary, both the employer and the employee might be subjet to appropriate federal law enforcement agencies for investigation and further action.
Premium processing provides expedited processing for the H1B application within 15 calendar days. If USCIS fails to process the petition in 15 days, the premium processing service fee will be refunded and USCIS continue with expedited processing.
However, keep in mind that using premium is not a guarantee of approval, and the premium processing fee is not refunded in case of denial of the visa petition.
Work with an Immigration Attorney
Applying for an H-1B visa with professional guidance can help you save money and time. Let us put our skills to work for you. We can help you fill out your H-1B application, avoid mistakes, guide you through the entire process and help you get your visa stamp.
The Herman Legal Group law practice is national and they serve clients throughout the U.S. and the world. These days, most of their meetings with clients and prospective clients are conducted online, via Skype, Zoom, WhatsApp, Facetime, or Google Meet.
A small investment in seeking a consult can save you of the frustration due to taking action without the advice of experienced immigration counsel.