The H-1B visa is popular among foreign workers because of its low entry barrier (a bachelor’s degree).
Its portability (allowing the holder to change jobs), and its tolerance of the candidate’s dual intent visa status (by allowing an H-1B visa holder to change their nonimmigrant status to a permanent residence and the green card without returning to the home country).
However, its main weakness is the annual cap on the number of visas approved, which renders the process quite competitive.
How Does the H-1B Process Work?
The H-1B employment-based visa allows a U.S. employer to hire foreign workers who are highly skilled in a job position in specialty occupations.
The application process starts when the employer submits registrations on behalf of foreign workers who are already in the U.S. (international students on an F-1 student visa, for example) or a foreign worker located abroad.
The foreign national cannot be issued an H-1B visa without the support of the employer.
Validation od H-1B Visa
The H-1B visa allows an employee to work in the U.S. for up to three years.
In most cases, it is renewable once and only once, for a maximum of six years. To be eligible for the H-1B visa, the prospective petitioner must have received a firm job offer from a U.S. employer for:
- A “specialty occupation” that normally requires a bachelor’s degree or equivalent
- A research and development project administered by the Department of Defense; or
- Work as a fashion model of exceptional merit and ability.
Processing time averages four to seven months, but the U.S. Citizenship and Immigration Services USCIS also provides Premium Processing service.
An employer is not allowed to begin the H-1B petition process less than six months prior to the candidate’s intended start date.
Visa processing runs from April through October of each year.
Ensuring that the Job is a ‘Specialty Occupation’
U.S. law defines “specialty occupation” as an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge.”
Typically, the job must require a bachelor’s degree, and the candidate must possess a degree or its overseas equivalent.
It is sometimes possible to obtain an H-1B visa without an appropriate degree when the foreign worker should have at least 12 years of experience in a related field.
Establishing an Employer-Employee Relationship
To establish a legitimate employer/employee relationship for an H-1B visa:
- The employer must have issued a definite, full-time job offer to the candidate
- The candidate must have accepted the offer
- Proposed duties must be specific
- The job must be a ‘specialty occupation’
- The candidate must be qualified to perform it.
The U.S. Citizenship and Immigration Services will make its decision on a case-by-case basis based on the totality of the circumstances.
The employer must not pay the H-1B visa candidate any less than he would have paid a U.S. citizen employee.
This is required not only to protect the candidate from exploitation, but also to protect U.S. workers from being laid off in favor of cheaper noncitizen employees, and from being forced to accept lower pay to compete with them.
Employers may obtain the prevailing wage determination by submitting a request to the National Prevailing Wage Center. To do this, use the Application for Prevailing Wage Determination Form ETA-9141.
The Labor Condition Application (LCA)
Employment in the U.S. under H-1B status requires Labor certification. Prospective petitioners follow same procedures when filing the Labor Certification Application with the U.S. Department of Labor (DOL) before the H-1B petition is sent to the USCIS. The application must be submitted online through the DOL iCert website on Form ETA-9035.
Employer’s Affirmations In LCA
- The employment will not harm the wages and working conditions of similarly employed U.S. workers;
- The employer will pay the candidate the “actual wage” or the “prevailing wage” for the occupational classification in the field, whichever is higher; Prevailing wage determination is obtained from the National Prevailing Wage and Center (NPWC)
- The employer will notify its employees of the filing of the LCA; and
- There is no strike, lockout, or work stoppage arising from a labor dispute in that occupation.
There is no additional fee for filing an LCA application, and processing takes roughly a week.
A significant consideration in an H-1B petition are filing fees:
- The standard filing fee is currently set at $460, applying to each submission of a petition, a re-filing, an amendment, or a renewal.
- Training fee: The training fee is $750 for employers with 1-25 full-time employees and $1,500 for all other employers except for certain exempt employers. Many cap-exempt employers are exempt from the training fee.
- Fraud prevention and Detection fee: First-time H-1B employee applicants, and H-1B employees seeking to change employers, must pay a $500 fraud prevention fee. This fee does not apply to extensions with the same employer.
- There is a $4,000 fee for companies with more than 50 employees when more than half are on H-1B or L immigration status.
- Fees also apply to certain optional services such as Premium Processing and H-4 visa petitions (see below).
Filing the H-1B petition
H-1B employers cannot file a petition or a request for an extension for their candidate more than six months before the candidate’s projected start date (typically October 1).
Rough overview of the process
- The employer must deliver a definite, full-time written job offer to the candidate, and the candidate must accept the offer.
- The employer must submit a Labor Condition Application(LCA) to the DOL, wait for approval, and comply with intra-company employee notification requirements.
- The employer must prepare an H-1B petition and gather supporting documentation (such as evidence of any training certificates, education or professional membership documents if relevant, resume, etc.)
- The employer must file the H-1B petition, along with the filing fee, with the appropriate USCIS service center.
- The U.S. Citizenship and Immigration Services USCIS will notify the employer if the petition was selected in the H-1B lottery.
- If the petition is selected in the lottery, it will be reviewed by the USCIS. If it is not selected, the USCIS will return the filing fee.
- After examining the petition, the USCIS will either approve it, deny it or send a request for additional evidence (RFE).
- If the candidate is located abroad, he or she must make an appointment for an interview with the appropriate U.S. embassy or consulate, and bring all H-1B documentation and his/her passport so that the embassy or consulate can to obtain a visa stamp on the passport.
WARNING: Multiple filings for the same beneficiary by the same employer are not allowed and can be penalized.
The following documents are required for an H-1B application process:
- Form G-28 (if the employer is represented by an immigration lawyer or an accredited representative).
- Form I-129, Petition for a Nonimmigrant Worker.
- H Classification Supplement to Form I-129 H Supplement (or Free Trade Supplement for petitions supporting Chile-Singapore workers)
- H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement
- Supporting documents required by the instructions for the above forms, such as evidence of the candidate’s educational qualifications (transcripts, etc.), along with a table of contents for ease of reference.
- Form I-94 (Arrival/Departure record) if the candidate is currently in the US.
- Form ETA 9035, Department of Labor certified Labor Condition Application.
- Cover letter from employer/attorney.
- Other supporting documentation may be required (for example, the I-20 if the candidate is a current or former student present in the US on an F-1 visa).
- A copy of all of the foregoing forms and documents, if the candidate will be applying for an H-1B visa at a U.S. embassy or consulate abroad. Clearly, mark it “COPY”.
- A check or money order for all applicable filing fees.
H-1B Visa if you live outside the United States
Supporting documents will be required if the petitioner is located outside of the U.S. and therefore requires consular processing to have a visa stamped onto his passport so that he can enter the US.
If you apply outside the U.S. you will use consular services. After you get your I-129 form approved, you will submit a nonimmigrant application at a foreign embassy.
Upon the application for the visa, you may go to the United States. When you get to the entry points, you will need to get permission from the U.S. Customs and Border Protection (CBP) for admission to the United States as an H-1B holder.
Although the total annual H-1B visa cap is set at 85,000, several annual sub-caps apply, including:
- The Regular Cap: The standard cap is 65,000 approved petitions per fiscal year.
- The C/S Cap is 6,800 for Chile/Singapore H-1B1 petitions, taken out of the 65,000 regular cap.
- The U.S. Master’s Degree Cap is 20,000 approved petitions for candidates with a U.S. master’s degree or higher and a corresponding job position to this level of expertise.
- Cap-exempt employers: Some employers are not subject to the H-1B cap at all. This prospective employer may be a college and university or any institution of higher education, and non-profit organization associated with them, as well as a non-profit and government research organization. It might even be possible to apply for a cap-exempt visa for beneficiaries eligible for the advanced degree exemption if the candidate will work primarily with a cap-exempt organization that is not their direct employer.
- Cap-exempt petitions: H-1B amendment, renewal/extension, and employer transfer petitions are not subject to any annual cap.
The H-1B Lottery
In 2022, H-1B petitions are accepted beginning on March 1 when the registration process starts.
Since the caps are usually reached within the first week of the filing period, and since the visa process is very competitive, you must submit your petition during this short time window.
Employers seeking to hire a foreign national have to register USCIS online accounts before the registration period begins to submit registrations.
Only registrations submitted through the USCIS account will be considered.
The lottery does not change or replace the existing H-1B visa application process. Its aim is only to streamline and upfront paperwork and data exchange.
H-1B Petition Processing
During H-1B processing, the USCIS will review the job description, proposed salary, and the qualifications of the candidate. It will also carry out a background investigation of the candidate.
After the registration, you will see one of the following statuses on your registrant account:
The H-1B Lottery Status
When you log on to the USCIS case status online tool, one of the following statuses will be next to your case number:
- Submitted: Your application is still being considered by U.S. Citizenship and Immigration Services. This status may stay like this until the end of the fiscal year.
- Selected: Congratulations, you are selected! Now, the sponsoring employer has to file the I-129 petition within the appropriate deadline (the earliest date is April 1)and USCIS service center noted on your file.
- Not Selected: Means that your petition wasn’t selected through the lottery. This status will also remain until the end of the fiscal year.
- Denied: There are reasons for rejecting your application. Usually, it is because the employer registered the same foreign worker more than once.
- Invalidated-Failed Payment: Your registration was submitted, but the payment method was declined, not reconciled, or is otherwise invalid.
The Premium Processing fee is currently set at $2,500. If Premium Processing is selected, case processing will take no more than 15 days after the visa lottery takes place, unless a USCIS requested additional documents (RFE).
More information about the entire process of premium processing, you can find on the USCIS website.
Good to Know
- The 15-day period begins when the visa lottery takes place, not when the USCIS receives Form I-907;
- If the applicant is not selected in the selection process, the petition will be rejected and the application fee will be refunded;
- If a Request for Evidence is issued, the 15-day period will be recalibrated to start when the applicant’s response to the RFE is received by the USCIS;
- A refund of the Premium Processing fee will not be issued for rejection, but will be issued if a response is delayed beyond the 15-day limit; and
- Premium Processing is frequently suspended, especially during periods of high USCIS workload.
An H-1B visa initially granted with a term of up to three years, can generally be extended for another three years.
After this six-year period expires, the foreign worker must either return home or use some other status to justify remaining in the United States.
Amended H-1B Petitions
Any “material” change in working conditions will require the filing of an amended H-1B petition and the submission of new H-1B visa fees.
A “material” change could mean a change in job duties, working hours, or job location. You may need an immigration attorney to help you determine whether a particular change is likely to be considered “material” by the USCIS.
Portability is one of the main inherent advantages of the H-1B visa. It applies not only to employees in H-1B status but also to former H-1B holders who are awaiting adjudication of their petitions for permanent residence.
With portability, a foreign worker in valid H-1B status don’t have to work for the same company.
Instead, he or she can start a new job with a new employer as soon as the employer files a new H-1B petition for him, without delaying his start date until the USCIS accepts his petition and without waiting for his original H-1B visa to expire.
Additional filing fees will be necessary.
The foreign worker will enjoy a 60-day grace period before being obliged to leave the U.S. if:
- The employee’s petition is rejected
- The employee gets fired or laid off from his job, during which time he can seek further employment with another employer willing to sponsor him for H-1B status.
This setup can work well for the original employer as well since if an H-1B employee changes jobs, the former employer is excused from paying for the employee’s return flight home even if the former employer laid him off or fired him.
One of the benefit requests that H-1B holders can make is obtaining H-4 nonimmigrant status for certain dependents.
Dependents who can apply for temporary residency in the U.S. include spouses and children under the age of 21.
Legal spouses and unmarried children of an H-1B visa holder may be eligible to apply for the H-4 status:
- An applicant starts the process at a U.S. Consulate or embassy and apply for an H-4 visa stamp by providing evidence of their status.
- An applicant in the U.S. uses Form I-539 and start the application process at the U.S. Citizenship and Immigration Process (USCIS).
Do You Need A Lawyer To Obtain H-1B Visa?
If you want to avoid any undesirable scenario throughout the application process and ensure on-time filing, correct account type, and proper form submission of your registration, you should consider hiring an attorney.
Your immigration lawyer can lead you through the registrations and application process and advise you on what other documents, as well as register USCIS online account and file a petition on your behalf- yes, your lawyer can do everything on your behalf by creating a representative account.
Call now and book your consultation with Richard Herman if you want to file an H-1B petition. Our law firm has extensive experience in providing immigration services in the field of immigration law.
Herman Legal Group law firm have had the privilege to help a number of clients from all around the globe to get an H-1B visa and obtain the green card.
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