H1B Visa

The H-1B visa is subject to a yearly cap of 85,000 visas issued each fiscal year. Of this number, 65,000 visas go to regular cap applicants and the remaining 20,000 visas are set aside for those with advanced degrees (a Master’s Degree or higher).

Since this type of visa is quite popular, the U.S. Citizenship and Immigration Services (USCIS) uses a lottery to select randomly from the surplus of H-1B visa applications. The lottery is divided into two different drawings where the first randomly pick 65,000 from the general pool and the second drawing randomly picks 20,000 from those with an advanced degree.

Individuals who are interested in applying for an H1B visa must be accepted into a job position that meets at least one of the following requirements:

• The position requires a minimum of bachelor’s degree (or equivalent)
• The position requires a Master’s or Doctoral Degree
• The position requires advanced training or vocational skills

The H1B visa petition process is first started by the employer in the United States. The employer must have an open work position for which they can not find an American employee qualified. In addition, this position requires either an advanced education degree or is particularly specialized.

After an employer finds a foreign worker who is qualified for the position, they will then start the H1B visa process.

In order to apply for an H-1B Visa, visa applicants must meet the following requirements:

• Acceptance into a job that requires theoretical and practical application of a body of highly specialized knowledge
• Possess a Bachelor’s degree (or equivalent) or higher in the specific specialty or have an unrestricted state license, registration, or certification that allows you to fully practice the specialty occupation
• Have recognized work experience in their specialty
• Have a Certified Labor Condition Application

In order to apply for an H-1B2 (DOD Researcher and Development Project Worker Visa), visa applicants must qualify to work in research and development projects of the US DOD or other government positions. In order to prove that they qualify, they must meet the following requirements:

• Be accepted into a job that requires a Bachelor’s degree or higher (or its equivalent)
• Submit a verification letter from the Department of Defense project manager for the particular project stating that the applicant will be working on a cooperative research and development project or coproduction project under a reciprocal government to government agreement
• Submit a general description of the applicant’s duties on the particular project with a start date of employment
• Submit a statement that lists the names of non-citizens currently employed on the U.S. project along with their start dates. Foreign workers whose employment ended in the past year on the U.S. project must also be included
• Possess a Bachelor’s degree (or equivalent) or higher in the specific specialty or have an unrestricted state license, registration, or certification that allows you to fully practice the specialty occupation
• Have recognized work experience in your specialty

It should be noted that a Labor Condition Application (LCA) will not be needed for this category of the visa.

In order to apply for an H-1B3 (Fashion Model Visa), applicants must meet the following requirements:

• Be accepted into a position or services that require a fashion model of prominence
• Be a fashion model of distinguished merit or ability
• Submit a Labor Condition Application

The H1B visa application process involves many steps for both the employer and employee. The steps are as follows:

• LCA Certification (done by employer)
• Annual H1B Lottery Registration (done by the employer)
• Petition Filing (done by the employer)
• Visa Application (done by the employee)

H1B (Specialty Occupations) visa applicants and H1B3 (Fashion Model) visa applicants both need to submit an LCA certification. This is an important component of the H1B visa as it establishes that both the employer and employee comply with the hiring and immigration requirements for the work visa.

Employers must acquire LCA certification before they can petition for prospective employees. In order to do this, they must submit Form ETA-9035 to the Department of Labor (DOL). This application can be submitted electronically however the form must not be submitted more than 6 months before the start of employment.

The DOL normally reviews LCA applications within 7 days to make sure they are complete and accurate. After this review, employers may check the status of their applications and even access them online. If the LCA is approved and certified, they may then continue on to the next step.

Registering for the annual H1B lottery started in 2020. Before this lottery registration, employers filed H1B petitions for their prospective employees after receiving their certified LCA. Now, employers must submit an electronic registration in March if they would like to be entered in the annual H1B lottery which takes place in April.

To register, employers must first create an online account at the U.S. Citizenship and Immigration Services website. They may then register one or more prospective employees (beneficiaries) by providing the following information:

• The legal name of the petitioning organization
• Employer Identification Number
• Authorized signatory’s name, title, and contact details
• Employer address
• Prospective employee’s name, date of birth, gender, country of birth, and citizenship
• Prospective employee’s academic qualifications

It costs $10 to register each prospective employee. Employers whose registrations are selected in the lottery will be notified via their online accounts. If selected, they can then proceed to file an H1B Petition for their employee for that fiscal year.

After the Employer has received the LCA certification and has been selected in the lottery, they can then submit an H1B petition on behalf of their employee.

Employers whose employees are selected must complete their H1B petition within 90 days, starting the 1st of April of each year. To do this, they must file Form I-129 (Petition for a Non-Immigrant Worker) to the USCIS along with the certified LCA and Notice of Selection from the lottery.

After Form I-129 is approved, employers will then receive Form I-797 (Notice of Action) from USCIS. The employer should then send a copy of this notice to the employee in order to apply for a visa.

If the employee is not in the U.S., they must then undergo consular processing at a local U.S. embassy or consulate in their country. If the application is approved, the embassy or consulate will then issue the employee with a visa to travel to the United States. When they arrive at a U.S. port of entry, the employee will then need to apply for admission through the U.S. Customs and Border Protection (CBP). If they pass the entry requirements, they will then be admitted to the U.S. as an H1-B visa holder.

If the employee is already in the United States, he/she will have to take the approved petition to CBP at a U.S. port of entry where they will need to fill out Form I-94 (Arrival/Departure Record). After this form is filled out, they will then enter the U.S. as an H1-B visa holder.

U.S. immigration law mandates that employers must all the fees associated with filing for an H1B petition. Employees are not responsible for these costs. Employees will only need to pay for the application fee if they undergo consular processing at a U.S. embassy in their home country. Other costs such as premium processing service fees and immigration attorney fees can be paid for by either the employer or employee. The following is a list of H-1B visa application fees.

Fees that are paid for by the employer:

Registration Fee: $10
Public Law 114-113 Fee: $4,000
Basic Filing Fee: $460
American Competitiveness and Workforce Improvement Act (ACWIA) Education and Training Fee: $750 or $1,500
Anti-Fraud Fee: $500

Fees that are paid for by the employee:

Consular Processing (Form DS-160): $190
Premium Processing Fee (Optional):$2,500 (Can also be paid for by the Employer)
Immigration Attorney Fee (Optional): Cost will vary (Can also be paid for by the Employer)

The ACWIA fee will vary depending on the number of employees employed by the employer. Employers with 1-25 full-time workers will be required to pay $750. Employers with more than 25 full time-workers will be required to pay $1,500. Some organizations do not have to pay this fee such as non-profit organizations that have affiliations to government educational institutions and research organizations.

Premium Processing Service
Premium Processing is an optional service for those who would like to expedite their H1B petition process. In order to use this service, employers must submit Form I-907 with Form I-129. The service costs $2,500 and a decision of the petition will be granted with 15 days.

Consular Visa Application Fee
Prospective employees who are outside the U.S. and have to undergo consular processing will have to file Form DS-160 (Online Non-Immigrant Visa Application). This form costs $190 and can be paid for by either the employee or employer.

Most H1B visas are valid for 3 years after which they can be extended after their expiration. The maximum amount of time you can stay in the U.S. under an H1B visa is 6 years in total however the USCIS may allow a visa holder to stay longer in some circumstances.