H1B Visa (Specialty Workers)

The H1B visa has certain criteria which visa applicants must meet. There are also requirements the job position must meet to qualify as a speciality occupation.

H1B Requirements for Visa Applicants

Generally, H-1B visa applicants are required to hold certain academic qualifications and the skills to work in speciality roles. To fulfil that, you must meet one of the following criteria:
– Hold a bachelor’s or higher degree required by the speciality job from a U.S. university or college.
– Hold a foreign degree required by the speciality 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.

H1B Specialty Occupation Requirements

For a job position to qualify as an H1B speciality 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

Employers who wish to secure an H1B 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 H1B 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 H1B visa.

There are various steps involved in an H1B visa application.
– LCA Certification
– Petition Filing
– Visa Application

LCA Process

Before filing an H1B visa petition, employers must complete the 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 H1B 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.

You may apply for a green card while still on H1B 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 H1B holder can become a lawful permanent resident. The most common way is by applying for an employment-based green card. This includes EB1, EB2 and EB3 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 H1B visa, you will adjust your status and become a permanent resident.

However, if the H1B 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 H1B 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.

According to the U.S. Immigration National Act (INA), petitioning employers must pay each USCIS fee associated with an H1B 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 H1B 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 nonprofit 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 H1B prospective employees outside the United States. The Form DS-160 nonimmigrant application online fee is $190. There may be other fees, which vary widely from one embassy to another. The employee is generally responsible for this, although some employers may choose to bear it.

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 H4 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.

The H1B 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 H1B 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.