The H-1B is a temporary work visa for nonimmigrant professionals with petitioning employers. This is given to those who work in specialty occupations in the United States. These occupations require a bachelor’s degree or higher, or equivalent experience. The visa allows foreign professionals to work in the U.S. for three years and can be extended for a total of six years and may continue to be extended if the foreign national has a labor certification filed or I-140 approved. It also allows dependent immediate family members—children and spouse—to live in the U.S. on an H-4 visa.
The annual cap for the H-1B visa is 65,000. An additional cap of 20,000 visas is available for individuals who hold a U.S. master’s degree. However, H-1B workers can be exempt from this cap if their petitioning employer is an institute of higher education, a government research organization, or a non-profit entity. Those who are extending their H-1B visas or changing employers are also not subject to the cap.
1. Application Requirements for the H-1B Visa
2. Position in a Specialty Occupation
- The H-1B visa applicant must hold or be offered a position in a specialty occupation with a U.S. employer.
- A specialty occupation requires highly specialized knowledge.
- Qualified positions include IT workers, medical practitioners, accountants, engineers, architects, lawyers, professors, researchers, and other professional occupations.
3. Educational Attainment
- A bachelor’s or advanced degree college or university, or the equivalent, is required. The degree must be related to the H-1B specialty position offered.
- For degrees obtained outside the United States, must be equivalent U.S. degrees.
- In some cases, educational equivalency can be granted through a combination of basic education, specialized training, and relevant work experience. The general rule is three years of specialized work experience for every year of University education.
4. Qualified U.S. Employer
- The petitioning employer must be a person, firm, corporation, or organization with an IRS tax identification number.
- The petitioning employer must have the financial capability to provide the prevailing wage.
- An official job offer must also be provided to indicate that the position is a specialty occupation and that the H-1B employee is qualified for it.
- The job should be a bona fide job with specialty occupation work available for the employee to perform.
5. Steps in the H-1B Visa Process
To start the H-1B visa process, there should be an eligible U.S. employer who’s willing to file the H-1B visa on their employee. Unless exempt from the H-1B cap, the employer must enter the employee into the H-1B visa lottery which is generally held in March each year. If successful in the H-1B lottery, the H-1B can then be filed as follows:
- File the G-28 Form. A G-28 form is filed by petitioners represented by an H-1B lawyer. The form must be signed by the attorney and the petitioner and filed before starting the actual visa application process.
- Submit Form ETA-9035. The U.S. employer files the Labor Condition Application online through the Flag Portal System of the U.S. Department of Labor. Wait for its approval before proceeding to the next step.
- File the Form I-129. After approval of the LCA, file the Petition for a Nonimmigrant Worker. The H Classification, Data Collection, and Filing Fee supplements on the form must be completed properly. The form is then submitted along with the approved LCA, supplementary documentation, and filing fees.
- File Form I-907 for Premium Processing. Get an H-1B visa faster by requesting for premium processing. Pay the filing fee of $2,500, then submit Form I-907 along with a copy of the I-129 receipt.
The processing for the H-1B visa takes approximately several months. A petitioner who wants the process expedited can request Premium Processing for an additional filing fee. This will cut down the processing time to just 15 days.
Ensuring complete documentation, proper filing, and payment fees can be daunting. To be approved for an H-1B visa, you must make sure that all required documents are filled out properly and filed on time. There are also new regulations that might be confusing for those not familiar with immigration law. So it’s always best to work with an immigration attorney who can assess your situation and ensure that your petition is filed properly.
Consult with an H-1B visa lawyer who has extensive knowledge of immigration laws, particularly in business and employment immigration. At Ramchand & Raval, our immgration lawyers have the expertise guide you through the H-1B process.
Get professional advice. Schedule a consultation with an H-1B visa lawyer now.