The H1B visa is a beacon of hope for many international professionals aspiring to work in the United States. It is a non-immigrant visa under the Immigration and Nationality Act, Section 101(a) (15) (H) that allows foreign workers to work in specialty occupations. The applicants must meet certain criteria, including holding at least a bachelor’s degree, working in a specialty occupation, and demonstrating the lack of qualified U.S. applicants.

In general, H1B visas are granted through a random lottery if there are more applicants than visas available. The lottery selects enough applicants to meet the H-1B cap of 65,000 for the regular quota and 20,000 for the master’s quota. Given the complexity and competitiveness of the H1B visa process, it’s essential to understand its nuances, from eligibility criteria and application procedure to the selection process, visa duration, and possibilities for extension. This comprehensive guide aims to demystify the H1B visa process, providing a roadmap for aspiring applicants.

H1B Visa Requirements:

The H1B visa allows foreign workers to work in the USA for an initial period of 3 years. You can apply for another three-year extension of your H1B visa after that. But keep in mind that within this total six year period, you should find a pathway of becoming a permanent resident in the United States. The US institutions must meet some specific requirements to hire a foreign worker, and the foreign workers must have specific qualifications to be employed as well. Here, we will discuss the requirements in detail.

Requirements for hiring a foreign worker on an H1B visa:

Before hiring a foreign national on H1B visa, an employer must meet the following criteria:

• Must demonstrate to the US government that there is no qualified US citizen or resident for the position.
• Must have a valid job offer for the position.
• Willing to bear all costs for the VISA application.

Job offer requirements:

To be eligible for H1B visa, the candidate must have a job offer that falls under the category of specialty occupation. The job offer must meet one of the following criteria to qualify as a specialty occupation:

• At least a bachelor’s or higher degree or its equivalent is required.
• The required degree must be common in the other parallel positions available in the industry.
• The nature of the job is so complex that it can be performed only by an individual with a degree.
• The employer normally requires a degree or its equivalent for the position.

Wage requirements:

To get approval, the H1B employer must pay its H1-B workers at least the prevailing wage set by the U.S. Department of Labor. The U.S. Department of Labor sets the prevailing wage rates based on education, experience, required expertise, and location, like US workers. These guidelines have been set to make sure that H1B workers are paid on par with US workers and are not exploited by employers as cheap labor. However, it should be noted that if the actual wage for a particular job in the area of employment is higher than the prevailing wage rate, then the H1-B worker must be paid at least that higher amount.

Is there any H1B visa cap?

The U.S. government has set an annual cap on the number of new H1-B work visas that can be issued each fiscal year. In general, the total number of available H1-B visas is 85,000, among which 20,000 are exclusively reserved for individuals who have earned advanced degrees such as a master’s or Ph.D. from accredited U.S. institutions.

The approval of H1B is not a guaranteed process. The potential H1B candidates are selected via a random lottery. This is because in each fiscal year, the number of H1B registrations received exceeds the annual cap. During the lottery-based selection process, the 20,000 advanced degree petitions are selected first, and then any unselected advanced degree registrants are placed in the general pool for the 65,000 cap.

After the selection, the employers can submit H1B petitions on behalf of their prospective employees during a designated filing period, usually beginning in the first week of April each year. The selected petitions are then processed, and if approved, the foreign workers can obtain H-1B status and begin (or continue) employment in the United States.

Key Steps for the H1B Visa Application Process:

The H1B visa application is a multi-step process that requires various steps involving the US state, labor, and immigration departments. The process can be summarized as follows:

Step 1: Identifying a Sponsor

To initiate the H-1B visa application procedure and file a petition, you must first locate an employer who will sponsor your visa. This is the most important step, as you cannot apply for an H1-B visa on your own. Not every company in the U.S. will want to sponsor you. Therefore, it is crucial that, before working for any company, you reach an agreement that the company will sponsor your H1-B visa.

Step 2: Employer Files a Labor Condition Application (LCA)

Your employer must file a LCA to the U.S. Department of Labor (DOL). In this application your employer must certify that you will at least get prevailing wage or higher comparable to similar positions in your workplace area, and your employment will not adversely affect current U.S. employees. LCA is tied to a H1-B job position and not to a specific individual.

Step 3: Employer files H1-B Petition with USCIS using form I-129

After the LCA approval, your employer can proceed to submit the H-1B petition by filling out Form I-129. This is known as the petition for non-immigrant workers. With the petition, the employer must submit the employment letter with the position’s exact duties, dates of employment, detailed description, salary offered, position requirements, contact information, etc. Other documents, such as academic qualifications, training certificates, membership documents, resumes, and letters of support, must also be included as supporting documents.

Step 4: After the Approval

Once your I-129 is approved, you will receive a Form I-797 Notice of Action. Appropriate actions must be taken based on your current location. If you were already working under your OPT, then you need to make sure that your H1B status is active. Your immigration status will be changed to H1B, which will be reflected in your I-94 record. If you are outside of the United States, then you must fill out Form DS-160, apply for consular processing, and attend the H-1B visa interview.

H-1B Visa Application Process Filing Fees:

Your employer is responsible for paying the necessary application, processing, and filing fees. Your employer will initiate the petition after you are selected in the H1B lottery. However, the overall cost of the processing fees might range from USD 1700 to USD 6500 based on several factors, such as optional fees, attorney fees, and employment criteria. You might incur additional costs based on the nature of your application.

The following is the tentative cost for the whole process:

• Registration fee: used to be $10, but after April 1, 2024, this fee will be $215.
• Standard filing fee: The standard filing fee for the I-129 petition is $460. This includes H-1B transfer, refiling, amendments, and renewal fees.
• ACIWA Education and Training Fee: For companies with up to 25 full-time workers, the fee is $750. Anything more than that will cost an increased rate to $1500. However, this American Competitiveness and Workforce Improvement Act (ACWIA) fee is waived for nonprofit entities.
• Fraud Prevention and Detection Fee: A $500 fee is applicable to new H-1B applicants or people who are transferring their H-1Bs.
• Public Law 114-113 Fee: An additional $4000 fee is applicable to companies with over 50 employees, with more than half on H-1B or L-1 status.
• Discretionary Fees: If you want to expedite the process, then it will cost you an additional $2500, and you will need to submit Form I-907. If you have eligible family members for H-4 dependent visas, then those will incur additional costs.

Required Documents to Submit for an H1B Visa Application:

Please make sure that you do not miss out on any documents during submission. Otherwise, it might delay your case and cause a possible rejection. You must submit the required documents for employees, as listed below:

• Your current passport.
• A copy of your current passport pages.
• All previous passports.
• Receipts that prove you have paid your visa fees.
• A photograph that meets the digital image requirements.
• Visa interview appointment letter (original and 1 copy).
• Printed Form I-129 Receipt number, the original, and 1 copy of Form I-129.
• Copy of Form I-797.
• Letter from your employer with your job description.
• Your qualifications (diplomas and certifications).

If you have worked before in the US, you also have to submit:

• Your tax return forms.
• Names and contact information of previous employers and supervisors.
• Resume or CV.
• Pay slips for the past 12 months.

If this is the first time you are applying, you should submit these additional documents:

• Resume or Curriculum Vitae (CV).
• Names and contact information of supervisors and managers of your current and previous jobs.
• Names and contact information of two co-workers from your current and previous jobs.
• A letter describing your job duties and responsibilities for the job you will have in the US.
• Photographs of your current and previous job locations.
• Photographs of the building where you will be working in the US (outside and inside), an annual report, a prospectus, or any brochures.
• Bank statements.

What is the usual processing time of H1B?

The overall processing time for an H1B visa takes 5 to 7 months, in general. However, the processing time might vary depending on the location. Especially if you are processing the H1B visa from outside the US, then it will take longer time.

If you want a faster processing for your petition, then you can choose premium processing. This service has a fee associated with it and does not ensure approval. Right now, there is a $1,440 premium processing service charge. You can send an I-907 form, which is the Request for Premium Processing Service form, with that charge. This form may be submitted subsequently, while your I-129 is still pending with USCIS, or it may be filed with your I-129. The I-129 petition will be processed in 15 calendar days if premium processing is chosen.

Does your H1B get denied?

If you are a genuine applicant and submitted your petition properly, then there is less chance of rejection. However, there are some common reasons why a visa officer might deny your H-1B visa during the interview or stamping process:

• The employer does not seem genuine and has a very limited history of operating inside the USA with the capacity to hire and pay an H-1B worker.
• The employer fails to establish the employer-employee relationship, e.g. lack of pay stubs, tax filing etc.
• The foreign worker does not have the required US equivalent education and experience
• The offered employment does not meet the “specialized knowledge” requirement

What if one gets fired while on H1B?

If your employer, who sponsored your visa, terminates your employment, then you will need to find a new employer and submit new paperwork within a 60-day grace period set by USCIS. You need to either apply for a change of visa status, e.g., from H-1B to B2, or return to your home country if you are unable to find a new employer . If you are hired again after your departure from the USA, you need to go through the H-1B visa application procedure again as a new applicant.

Path to Green- Card:

The H1B visa is a dual intent visa. This means the H1B visa holder can also express interest in becoming a permanent resident of the USA. As the H1B visa is a limited term visa, you should think of finding the right path to become a permanent resident in USA within the six-year period. In another article, we will write more about becoming a permanent resident in the United States.