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H-1B Visa (Specialty Workers)

Foreign professionals can apply for the H-1B visa if they have a minimum of a bachelor’s degree and are highly skilled.

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    What is the H-1B Visa?

    The H-1B visa is a nonimmigrant classification designed for professionals who wish to work in the United States. It enables U.S. based organizations to hire foreign workers with highly specialized expertise in certain occupations. H-1B specialty occupations include I.T., engineering, science, and finance.

    It is a cap-based classification with a total annual numeric limit of 85,000 visas shared between two major categories of applicants. 65,000 visas go to regular cap applicants and the remaining 20,000 to the “master’s” cap. Applicants in the master’s cap are individuals with an advanced degree (master’s or higher) from U.S. colleges or universities.

    The United States Citizenship and Immigration Services (USCIS) uses a lottery system to select randomly from the registration pool. This is because the applications received each year always surpass the stipulated numeric limit.
    The first lottery randomly picks 65,000 applications, and the second lottery used to select an additional 20,000 with an advanced degree.

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    What are the H-1B Visa Requirements?

    The H-1B visa has certain criteria which visa applicants must meet. There are also requirements the job position must meet to qualify as a specialty occupation.

    H-1B Requirements for Visa Applicants

    Generally, H-1B visa applicants are required to hold certain academic qualifications and the skills to work in specialty roles. To fulfil that, you must meet one of the following criteria:
    – Hold a bachelor’s or higher degree required by the specialty job from a U.S. university or college.
    – Hold a foreign degree required by the specialty job from a foreign university or college. The foreign degree must be equivalent to a U.S. bachelor’s degree or higher.
    – Hold an unrestricted state certification or licence that authorizes you to practice the occupation.

    H-1B Specialty Occupation Requirements

    For a job position to qualify as an H-1B specialty occupation, it must meet one of the following criteria:
    – The minimum entry requirement is bachelor’s or higher degree (or its equivalent)
    – The job is unique or complex that it can only be performed by an individual with a degree.
    – The nature of the duties is so specialized that the expertise required to perform the duties is associated with the attainment of a bachelor’s or higher degree
    – The employer typically requires a degree for the position

    H-1B Visa Electronic Registration Process

    Employers who wish to secure an H-1B visa for their prospective workers must first complete an electronic registration process. USCIS implemented this process in 2020.

    Employers will create an account on a USCIS webpage. They will provide required information about themselves and each prospective employee they wish to secure an H-1B visa for. They will also pay a $10 registration fee for each beneficiary (prospective worker). Only those with selected registrations will qualify to file an H-1B visa.

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    How to Apply for an H-1B Visa

    There are various steps involved in an H-1B visa application.
    – LCA Certification
    – Petition Filing
    – Visa Application

    LCA Process

    Before filing an H-1B visa petition, employers must complete Labor Condition Application by submitting Form ETA-9035 to the U.S. Department of Labor (BOL).
    This application must be submitted electronically, and the submission must not be more than 6 months before the start date of the employment.

    DOL will review the application within 7 working days. Employers with certified LCAs can then proceed to file H-1B petitions for their prospective workers. The purpose of LCA is to attest that employers and employees comply with the requirements of the H1B visa.

    H-1B Petition Filing Process

    Employers will submit Form I-129 Petition for a Nonimmigrant Worker to USCIS. The petition must be submitted along with the DOL-certified LCA. It must also include all necessary information and supporting documents to prove eligibility for both the employer and the employee.
    Visa Application Process

    Once the petition is approved, the next step will depend on whether the employee is present in or outside the U.S.

    If You Are Outside the U.S.

    Prospective workers outside the U.S. will need to apply for a visa at a U.S. embassy or consulate in their country of residence. This is called consular processing. You will complete the Form DS-160 nonimmigrant application online with a fee. Upon arrival at the U.S. port of entry, you will then apply for admission in the H-1B status through the U.S. Customs and Border Protection (CBP).

    If You Are in the U.S.

    If you are in the U.S. at the time of the petition approval, you must take the approved I-129 to CBP at a U.S. port of entry. You will then fill out Form I-94 Arrival/Departure Record and enter the country legally as an H-1B holder.

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    Can I Apply for a Green Card While on H-1B Status?

    You may apply for a green card while still on H-1B status. This will allow you to obtain permanent residence and stay in the U.S. for as long as you want.

    There are various ways an H-1B holder can become a lawful permanent resident. The most common way is by applying for an employment-based green card. This includes EB-1, EB-2 and EB-3 visas. Each of these green card categories has its own eligibility requirements and application process. In general, however, they are all petition-based categories. They require that an employer sponsors your application. But if you qualify for the Extraordinary Ability subcategory of the EB-1 visa, you may self-petition your green card application.

    Also, if you have a qualifying family relationship with a U.S. citizen or green card holder, they may sponsor your green card through a family-based green card application.

    If your green card application is approved before the expiration of your H-1B visa, you will adjust your status and become a permanent resident.

    However, if the H-1B visa expires before your permanent residence application is approved, you may have to leave the U.S. pending the approval of your green card.

    You may also reapply for an H-1B visa or another nonimmigrant work visa after staying one year away from the U.S. Sometimes, the green card application process takes several years. Getting another nonimmigrant visa will enable you to return to the U.S. pending the green card approval.

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    What are the Application Fees for an H-1B Visa and Who Must Pay?

    According to the U.S. Immigration National Act (INA), petitioning employers must pay each USCIS fee associated with an H-1B filing and cannot be borne by employees. However, some optional fees, such as premium processing service fee attorney fee, can be paid by either the employer or the employee. The employee is also responsible for their visa fee during consular processing at the U.S. embassy. The following are the H-1B associated fees and who pays what.

    Fee                                                                  Amount                      Party Responsible

    Registration Fee                                             $10                              Employer

    Public Law 114-113 Fee                                 $4,000                         Employer

    Basic Filing Fee                                              $460                            Employer

    Anti-Fraud Fee                                                $500                            Employer

    ACWIA Training and Education Fee              $750 or $1,500            Employer

    Premium Processing Fee (Optional)              $2,500                         Employer or Employee

    Attorney Fee (Optional)                                  Varies                          Employer or Employee

    Consular Processing  (Form DS-160)            $190                            Employee

    NOTE: Some important explanations about H-1B visa fees:
    ACWIA or American Competitiveness and Workforce Improvement Act fee varies depending on the number of employees the employer has. For employers with 1-25 full-time workers, the fee is $750. For those with 26 or more full-time employees, the fee is $1,500. Some organizations are exempt from this fee. Examples are nonprofits organizations with affiliations to government research organizations and educational institutions.

    Premium Processing Service: This is an optional service available to those who want to expedite their visa application process. To use the service, employers must submit Form I-907 along with the Form I-129 petition. It requires an additional $2,500 and guarantees a 15-day processing time frame. This means USCIS will make a decision on the petition within 15 days.

    Consular Visa Application Fee: Consular processing is required for H-1B prospective employees outside the United States. The Form DS-160 nonimmigrant application online fee is $190. There may be other fees, which varies widely from one embassy to another. The employee is generally responsible for this, although some employers may choose to bear it.

    Get in touch with our expert immigration lawyers to learn how to apply for a H-1B Visa. Contact us

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      Can H-1B Visa Holders Travel with Their Family?

      You can bring your spouse and unmarried children under the age of 21 to the U.S. However, they will also have to undergo the same visa application process and seek admission to the U.S. in the H-4 nonimmigrant status. They can accompany you or join you later. They will be allowed to remain in the U.S. as long as your visa remains valid.

      Once you’ve started the process of obtaining a green card, your spouse can apply for a work permit by filing Form I-765, Application for Employment Authorization. If approved, they will be able to work in the U.S. without restriction.

      How Long Does H-1B Visa Last?

      The H-1B visa is generally issued for up to an initial 3-year period of stay. You may extend your stay after the expiration. The maximum period you can stay on H-1B is six years in total, though USCIS may allow a longer stay in some circumstances.

      If your employer terminates your appointment before the end of the authorized period of stay, they will be liable for the cost of your return transportation. But if you voluntarily resign, they will not be liable for your return transportation.

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                Frequently Asked Questions

                The H-1B lottery is a system USCIS uses to randomly select the number of applicants needed to meet the annual cap. The Visa cap is the annual numerical limit placed on some visa classifications.

                For an H-1B visa, the annual cap is 65,000 for professionals with a bachelor’s degree and above. And another 20,000 for applicants who hold at least a master’s degree from a U.S. institution of learning.

                This means USCIS cannot issue more than a total of 85,000 H-1B visas in a year. Every year, far more applications than this number are submitted within a few days. For instance, for the 2022 H-1B season, USCIS received a total of 308,613 applications in March 2021. This is why the lottery system is always used to select from the pool.

                Due to its cap-based nature, the H-1B visa is highly competitive. The cap is usually met and surpassed within a few days after opening the application webpage. This makes applicants seek other nonimmigrant visa alternatives. The good news is there are various other work visas similar to H-1B. They include:

                – O-1 Visa for Individuals with Extraordinary Achievement or Ability
                – NAFTA TN Visa for Canadian and Mexican citizens in line with the North American Free Trade Agreement
                – L-1 Intracompany Transferee Visa: This works for professionals who are being transferred from another country to the U.S. It is an arrangement that enables foreign companies to transfer their staff to their U.S. branches or offices.
                – E-3 Specialty Occupation designed for Australian citizens
                – E-1 Visa: This designed for foreign traders whose countries maintain a treaty of commerce and navigation with the US
                – E-2 Visa: For investors also from treaty countries.

                Sometimes, USCIS may need additional information to help them make a decision on a visa application. They will send a message to the petitioner or applicant containing the items required and the deadline for submission. This message is called request for evidence (RFE).

                In the case of an H-1B visa, the missing information could be about the employer or the employee, and it must be provided within 60 days. Failure to meet up will lead to delay or jeopardize the entire application process.

                The most common reasons for H-1B RFEs are:

                – Missing information about an employer’s Federal Tax ID Number, wages reports or financial statements
                – Inadequate evidence about employee’s educational background
                – Questionable or unclear relationship between the employee and the employer
                – Additional information to demonstrate employee’s academic qualification and experience in relation to the job position

                Here at IAS, our team of immigration lawyers has already helped several companies and individuals get their H-1B visas. We can offer you a premium service completely tailored to your needs.

                – You can benefit from our guidance, which includes:
                – Liaising with you and your sponsor;
                – Completing your Form I-129 Petition;
                – Confirming that you possess adequate expertise consistent with the one requested by your job position in the U.S.;
                – In case you receive an H-1B RFE from USCIS, we will act timely to save your petition.
                Use our online inquiry form or contact us today on +1844 290 6312. With our help, you can get your H-1B Visa without being discouraged by the competition!