It is no secret that the H1B visa is one of the most popular visas available. But do you know how to get one?
The most sought-after nonimmigrant work visa among foreign workers looking for temporary work in the US, the H-1B visa allows US employers to hire foreign nationals in specialty occupations, meaning those that demand the theoretical or practical application of a body of highly specialized knowledge, such as of an accountant, economist, or scientist).
The specialty occupation must require a bachelor’s degree or master’s degree, or its foreign equivalent.
Every year the number of applicants for this specialty occupation visa increases. It brings a lot of benefits for their holders and even allows them to seek permanent residency in the US.
However, getting one means following strict requirements and timelines. The visa application process even includes being selected in the lottery process.
We will break it down for you and make the H1b visa requirements more understandable to you.
What are the requirements for the H1B visa?
The H1B visa is a nonimmigrant visa, that allows companies to temporarily hire graduated level or otherwise specialist foreign workers, to work on specialty occupations.
It does not allow self-employment, so an employer-employee relationship is mandatory.
The H1B visa allows foreign workers in the US for an initial period of 3 years, which can be extended to another 3 years.
To be eligible for an H1b visa, a few requirements must be met, but they are about to be explained.
How can a company sponsor an H1B visa worker?
Employer requirements for the H1B visa are very simple, as any US employer can sponsor an H1B petition, provided it has an IRS Tax Number, as long as:
- Employers must be able to show the government that they have been unable to find qualified US applicants for the position.
- They must have a valid job offer
- The sponsoring employer is responsible for the fees
More than the employer itself, the job position matters most when considering hiring from abroad.
Not only the immigrant worker must have specialized knowledge, but the occupation must also require theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or master’s degree in the specific specialty as a minimum for entry into the occupation in the United States.
To be considered a specialty occupation, it must require at least one of the following:
- For that particular position, the minimum entry requirement is a bachelor’s degree or its foreign equivalent;
- The industry will typically require a degree in parallel positions across similar organizations or, in the alternative, the work is so complex or unique that it can only be performed by an individual holding a degree;
- The employer normally requires a degree or its equivalent for the position;
- Because the nature of the specific functions is so specialized and complex, the knowledge necessary to perform the functions is typically connected with getting a bachelor’s degree or higher.
Employers seeking to employ foreign nationals under the H1B visa must commit to paying the wage rate that is at least equal to the actual wage paid by the employer to other similarly employed workers in a specific occupation in the area of intended employment.
The prevailing wage exists to ensure that a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed.
The H1B visa is designed for skilled professionals with specialized theoretical and practical knowledge, such as IT specialists, architects, accountants, professors, etc, meaning that the employee must hold at least a bachelor’s degree:
- From an accredited college or university; or
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university.
The H1b worker must also hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment.
Can work experience be sufficient to suppress the education requirement?
If a worker does not have a degree but has the education, specialized training, and/or gained practical experience that is equivalent to completing a US.bachelor’s or higher degree in the specialty occupation, they might still be eligible.
Professionals with 12 or more years of experience might be exempted from the bachelor’s degree requirement. As a general rule, US Citizenship and Immigration Services views three years of work experience as equivalent to one year of degree coursework.
But we strongly suggest you yo seek advice from our legal team before taking any further steps without a bachelor’s degree.
The H1B is among the dual intent visas, meaning that the nonimmigrant worker does not have to prove the intention of returning to their home country.
Under a dual intent visa, the nonimmigrant worker is allowed to seek permanent residency in the US without any concern about losing their current nonimmigrant status.
H1B electronic registration process
Because the H1B visa is very popular, the number of applicants is much higher than the number of available visas, USCIS has established a lottery system to select which applicants can have their visa petitions analyzed.
Annual visa cap
The H1B visa has a congressionally mandated cap of 65,000 regular H-1B visas and another 20,000 for applicants with advanced degrees.
Worth mentioning that up to 6,800 visas are set aside from the 65,000 each fiscal year for the H-1B1 program under the terms of the legislation implementing the US-Chile and U.S.-Singapore free trade agreements.
The lottery process
As of 2020, USCIS started using an electronic registration process that randomly selects cap-subject applicants.
USCIS announced on January 28, 2022, that the initial registration period for the FY2023 H-1B visa cap will open at 12 pm (ET) on March 1, 2022, and run through 12 pm (ET) on March 18, 2022. During this time, potential petitioners and representatives can use the online H-1B registration system to complete and submit their applications.
This is a preliminary step, for the immigration services to understand more about the sponsoring employer, the foreign worker (if there is a valid passport, for instance), and the job.
Step by Step of the Electronic Registration Process
To submit the H1B petition and run the lottery, assuming that no representative will be involved, the employer must:
Step 1: Create an account on the USCIS website, using a “registrant” account within myUSCIS to submit registrations, selecting “I am an H-1B registrant”. This cannot be changed until the initial registration period opens.
Step 2: Submit their company information as part of their first H-1B registration, as well as the information if the beneficiary foreign worker. It is possible to submit more than one beneficiary at a time.
Step 3: After completing the filing process, the employer must electronically sign and certify the registration.
Step 4: pay the required fee of 10$ per beneficiary.
After completing the registration, the applicant will get a receipt number which allows them to check the H1B status on the USCIS website.
In case the employer chooses to work with a representative, they will use their representative account and the employer receives a passcode to check all the registration details.
If your registration is selected at the lottery, you will have a 90-day window to submit the H1B petition.
Petition filing process
Your application has been selected at the lottery and now you must file the H1B visa petition within 90 days. This is how the filing process works:
Step 1: Before filing an H-1B petition, the H1B employer must obtain a Labor Condition Application certification from the Department of Labor (DOL).
The labor certification must describe the details of the work, such as job duties, working hours, location, and wage, with the following conditions:
- The employer is expected to pay the H-1B worker a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area where the H-1B worker will be placed.
- The employer will ensure that work conditions are not prejudicial to other similarly employed workers.
- At the time of the labor certification application, there should not be a strike or lockout at the place of employment.
Step 2: once the LCA is certified by the DOL, the employer must submit Form I-129 to the United States Citizenship and Immigration Services (USCIS), petitioning for the H-1B visa on behalf of the foreign worker, accompanied by all supporting documents.
Step 3: After getting an approved petition by the USCIS, the H-1B worker who is outside the US may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa and then apply to U.S. Customs and Border Protection for admission to the US under H-1B status.
How hard it is to get an H-1B visa?
Each year the number of visa applicants increases. For Fiscal Year 2022, USCIS received 308,613 H-1B registrations for only 85000 visa allocations.
After being selected at the lottery, the H1B visa application will be carefully revised by USCIS to be approved.
The good news is that if the first selected applications are not submitted or are not approved, the unused visas will become available again for selection until all visas are granted.
So, if your application is not selected by March, 18 but after the 90-window a certain number of H1B visas are still available, USCIS will conduct a new selection among those who had already registered for this fiscal year.
This process gets a lot easier if the job position is on the USCIS list of H-1B cap-exempt employers.
#Cap exempt employers
Cap-exempt employers can hire professionals on H-1B visas throughout the year regardless of the annual cap. This process gets a lot easier if the job position is on the USCIS list of H-1B cap-exempt employers.
#Higher education institution:
The most common form of institution of high education is a college or university and it happens that most of the colleges and universities in the US are non-profit entities.
#Non-profit organization associated with a higher education institution:
Research labs, medical hospitals, and other entities linked with schools and universities are the most popular types of H-1B sponsors.
#Non-profit research or government organization:
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.
A nonprofit research organization is one that is “mainly involved in basic research and/or applied research,” according to the USCIS. Additionally, a governmental organization is defined as “a United States Government agency whose major objective is the conduct or promotion of basic or applied research.”
How Can We Help?
Although the H-1B filing process is not extremely complicated, you should rely on expert advice before making any mistakes that could jeopardize your H-1B petition.
The Herman Legal Group has over 25 years of experience in working with the U.S. Citizenship & Immigration Service. The team is friendly, professional, and wants to help. Leverage their experience for your case
Schedule a personal consultation with Attorney Richard Herman by calling 1-800-808-4013 or 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.
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