H-1B Specialty Workers Visa Attorney
The H-1B visa program allows businesses to sponsor foreign professionals to work in the United States temporarily. The non-immigrant visa is for non-US citizens in specialty occupations outside the country that require practical and theoretical expertise at a high level.
These skilled foreign professionals with specialized knowledge may operate in fields like I.T., computing, finance, accounting, banking, engineering, teaching, medicine, legal, telecommunications, etc. This visa program allows US companies to fill positions where qualified Americans may be short by employing foreign workers, albeit temporarily.
The H-1B visa was launched in 1990 to address workforce gaps in the US, allowing businesses to employ foreign professionals with unique expertise.
- The foreign individual must hold a bachelor’s degree or its equivalent relevant to the job.
- The employer looking to sponsor the individual must prove that the candidate’s skill is fit for the position.
- They must also prove that they are offering competitive wages.
Since its launch, the H-1B visa has played a vital role in driving innovation and helping US industries maintain competitiveness worldwide. With access to highly skilled talents outside the country, several businesses and industries have tremendously advanced.
The H-1B Visa Application Process
The application process for the H-1B visa is in different stages, with due diligence expected all the way. From before filing the petition to filing to USCIS’s review for approval or denial, and more.
It is important to note that there is an annual maximum amount of H-1B visas that can be granted. The cap means that petitions may exceed the available slot. When this is the case, petitions to be processed are selected randomly via a lottery.
Having divided the application process into four, let’s take a look at the details:
Before Filing the H-1B Petition
The employer must:
- Determine the eligibility of the foreign professional for the H-1B visa. The educational background, professional qualifications, suitability for the position, etc.
- Submit a completed Labor Condition Application (LCA) showing that the following are true:
- Giving non-US citizens a job does not harm American workers.
- The non-US citizens will be paid the typical wage for the job they do.
- The workers will no longer have a job if there is a strike or lock-out.
Filing the H-1B Petition
Typically, the H-1B petitions are filed during a designated filing period, often in the first week of April. The employer or their legal representative must file the petition (forms, supporting documents, filing fees, etc.) with the USCIS. The list below highlights some of the required forms:
- Form I-129
- Petition for a Nonimmigrant Worker
- Form I-129W
- H Classification Supplement to Form I-129, among others.
After the employer’s legal representative has filed the H-1B petition with USCIS, USCIS then checks the petition to make sure both the job and the foreign worker meet the eligibility criteria.
USCIS may request more information from the employer if it is needed before deciding to approve or reject the petition. It is called a Request for Evidence (RFE). For an additional fee of $2,500, some H-1B petitions have access to Premium Processing. This means that the processing time is reduced to 15 business days.
After the H-1B Petition Approval
After the approval of the petition:
- The foreign worker can visit a US consulate in their country of residence to apply for the H-1B Visa.
- If the foreign professional is already in the United States with a different visa, they can apply for a change of status.
- After the H-1B visa has been approved, the foreign worker can move to the US and begin to work with their sponsor.
Qualifications and Eligibility for H-1B Success
The purpose of the H-1B visa is to fill specialized job roles in the United States with highly skilled foreign workers who have the required expertise in the industry of their employment. Employers and foreign workers looking to maximize this opportunity must understand the requirements and the criteria for eligibility. Let’s explore these details together:
Educational and Professional Requirements
For the H-1B visa, the major thing is the specialized knowledge or skills that the foreign worker will add to the US job market. Hence, the foreign worker:
- Must have a minimum of a bachelor’s degree in their specialized field or the equivalent in years of on-the-job experience.
- The said degree should be relevant to the position they are looking to occupy.
The H-1B Specialty Occupation Visa allows businesses to sponsor highly skilled non-US citizens to work in the United States temporarily. They must have jobs in specific areas, like IT, computing, finance, accounting, banking, engineering, teaching, medical, legal, telecommunications, etc.
Unlike the EB-2 and EB-1A employment-based visas, the H-1B visa requires a US employer as a sponsor. It is the employer who petitions on behalf of the foreign worker for H-1B status. Just as the foreign worker has requirements to meet, so do the employer and the job have their requirements, such as industry-competitive pay, among others.
Evidence and Documents
As stated earlier, the employer petitioning on behalf of the foreign professional will provide evidence in the form of documents proving the qualification of the foreign worker and the job offer. Academic certificates, licenses, professional certifications, employment letters, need for a foreign worker, and every other document relevant to the job details.
It is worthy of note that because of the evolving immigration policies and the state of the job market in different markets in the United States, there may be changes to required documents at times. Also, the annual H-1B visa cap means that it is important that the petition and applications are gotten right the very first time.
You can schedule an appointment with our highly experienced immigration attorneys for professional guidance and help on the entire process.
The H-1B Cap and Lottery System
Due to the limited amount of H-1B visas granted annually, both employers and foreign workers need to understand the lottery system that USCIS uses to approve petitions. According to data gathered by Forbes from USCIS, only 14.6% of eligible H-1B registrations were selected for the 2024 fiscal year. That figure is a significant drop compared to 26.9% for 2023 and 43.8% for 2022.
Let us look at the H-1B visa cap and lottery system together:
Annual H-1B Visa Cap
As of the date of publishing this writing, the H-1B cap for a fiscal year is at 85,000 visas. The regular cap is 65,000 visas while an additional 20,000 visas are for foreign workers with an advanced degree (master’s degree or higher) from institutions in the United States.
The H-1B Visa Lottery System
The current H-1B processing system requires registration in the selection process. Due to the fixed maximum amount of H-1B visas issuable in a fiscal year, the registration process is used to select the petitions to be processed when the applications have crossed the cap. Note that it is a different selection for the regular cap (65,000) and the cap for advanced degree holders from US institutions (20,000).
Employer Responsibilities in the H-1B Process
For the H-1B specialty occupation visa, the employer in the United States has the majority of the processing responsibilities. Below are some of the obligations expected of the employer:
- Wage Requirements: The employer is expected to match or exceed the wages paid to employees occupying a similar position. Other influencing factors in determining the wage are the skill level required, the location, etc.
- Labor Condition Applications (LCAs): Before filing an H-1B petition with the USCIS, the employer or their legal representative must obtain a certified LCA to assert that the employer will pay the required wage and ensure safe working conditions. The employer must be ready to present the LCA during any H-1B compliance audits conducted by either DOL or USCIS.
- Documenting Changes in Employment: It is expedient that employers file an amended H-1B petition should the terms of employment change, such as job location, role, and the like. Not filing this amendment when necessary can lead to compliance issues, thus the employee on the H-1B status. The more reason to have a seasoned immigration attorney to help avoid such happenings.
- Public Access Files (PAF): The employer is obligated to keep a PAF for every one of its H-1B employees. The documents in the Public Access File include the job’s benefits, the LCA, and other compliance documents.
- Transparency must be ensured between the employer and the employee. Hence, the employer is mandated to inform the employee of their H-1B petition filing with a copy of the certified LCA.
- Audits and Penalties: USCIS and the DOL can conduct audits to ensure the employer is complying with the regulations of the H-1B program, and defaulting can lead to penalties.
H-1B Status Timeline and Extensions
The standard duration of the H-1B status is three (3) years but can be extended for another three years, as long as the visa holder still meets the eligibility criteria. The application for extensions is in one-year increments up to three times to make up the possible additional three-year extension.
It is important that the H-1B visa holder applying for the extension continues to meet the visa’s eligibility criteria and is under employment with the sponsor (employer).
However, after that six-year limit, a further extension is possible on some occasions. Primarily, this is possible when the H-1B visa holder is in the process of applying for permanent residency (green card). In further detail, individuals who have gotten an approved I-140 petition but are not able to adjust their status yet have access to this extension.
Also, individuals with H-1B status who spent some of their authorized stay period outside the US could recapture that time by an extension.
If a foreign worker on an H-1B visa changes employers during their authorized stay period, the new employer has to file another H-1B petition for the worker. Note that the initial time spent with the previous employer applies to the six-year limit.
A detailed explanation of the H-1B visa extension can be provided by our immigration professionals. They can help ensure all expected timelines and conditions are met.
H-1B Dependents and Considerations
Like other work visas like the H-3 visa, the dependents of an H-1B visa holder are eligible for the H-4 visa. The H-4 visa allows the dependents to accompany the H-1B visa holder to the United States, where they can live and study. Some H-4 visa holders can also obtain authorization to secure employment.
H-1B visa dependents typically include family members (spouses and unmarried children under age 21). The application process involves filing Form I-539, an Application to extend or change non-immigrant status and other documentation that may be required. Note that the feedback and timelines of an H-4 visa are dependent on the outcome of the H-1B status application.
While changes are expected from time to time concerning policies regarding the H-4 visa, it is vital to be well-informed and updated. Our immigration attorneys are constantly updated on such policy reviews and can always help ensure compliance.
Contact CFUIS – H-1B Visa Attorney
Many employers want to hire non-US citizens, but due to the limit of H-1B Visas approved each year, it is sometimes hard to come by. Talk to our H-1B visa attorney to help with the process.
We understand the detailed process of getting work authorization in the US. We can help you prepare the petition and application. We will also review all the supporting documents to ensure you do not make common mistakes that lead to the rejection of many applications each year. You can schedule an appointment, email us, fill out our contact form, or call us at 813-298-7222.