H-1B Visa (Specialty Workers)

The H1B is a work visa. As such, it requires an applicant and the specific position they are applying for to meet certain criteria.  As an applicant, you are required to have certain academic qualifications and demonstrate the requisite skills to work in a specialty role. You must meet one of the following conditions to demonstrate eligibility:

• Have a bachelor’s degree or higher degree required to practice the specialty occupation from a U.S. university or college
• Have a foreign degree required by the specialty occupation from a foreign college or university
• Have an unrestricted certification or license that authorizes you to practice the job
• Have training, education, or progressively relevant experience in the specialty equivalent to completing such a degree, and have recognition of expertise through progressively relevant positions related to the specialty. Generally, having 3 years of training or work experience in the field may count as equivalent to one year of college

For a job position to be regarded as a speciality occupation, it must meet one of the following descriptions:

• Its entry requirement is a minimum of bachelor’s or higher degree (or equivalent)
• The role is complex or unique in that it can only be performed by a degree holder.
• The nature of the duties is so specialized that the expertise or skills required to practice it is associated with the attainment of at least a bachelor’s degree
• The employer typically requires a degree for the position

The H1B visa application involves various documentation and steps that both employers and prospective employees must complete. The steps are as follows:

• LCA Certification
• Annual H1B Lottery Registration
• Petition Filing
• Visa Application

The Labor Condition Application is a major requirement in the H1B process. Every employer must complete this requirement before they can submit an H1B petition for their prospective employees. To do this, they must submit Form ETA-9035 to the Department of Labor (DOL).

The purpose of LCA is to ascertain those employers and their prospective employees comply with the hiring and immigration requirements of the H1B visa.

They must submit the application electronically, but the submission must not be more than 6 months before the employment start date.

DOL reviews LCA applications within 7 days for completeness and accuracy. Employers may check the status of their applications and access their certified LCAs. Those with certified LCAs can proceed to the next step.

Employers may choose to complete this process before or after filing their LCAs. Annual H1B registration is a relatively new requirement that started in 2020. In the past, employers were allowed to file H1B petitions for their prospective employees after obtaining LCAs. But now, they must submit an electronic registration in March if they wish to be entered into the annual H1B lottery, which happens in April.

In order to submit a registration, employers must first create an online account. From the account, they can register one or more beneficiaries (prospective employees). The registration costs $10 per beneficiary. They will need to provide the following information in their registration:

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

Employers whose registrations are selected will be notified via their online accounts. Their registration status will show “Selected,” which means they can proceed to file an H1B petition for the selected beneficiary for that fiscal year.

As a petition-based visa, only employers can submit the H1B petition on behalf of their employees. In other words, you cannot self-file the H1B visa as an employee.

Employers with selected beneficiaries must complete their H1B petition within 90 days, starting from April 1 each year. They will file Form I-129, Petition for a Nonimmigrant Worker, with USCIS. The certified LCA from DOL and the Notice of Selection from the earlier registration must be submitted with Form I-129.

Employers whose Form I-129 petitions have been approved will receive a Form I-797 Notice of Action (approval) from USCIS. They can then send a copy of the notice to the prospective employee to apply for a visa.

If the employee is outside the U.S., they will have to undergo consular processing at a U.S. embassy or consulate abroad. If their application is approved, the embassy will issue them a visa to travel to the U.S. Upon arrival at the U.S. port of entry, they will apply for admission through the U.S. Customs and Border Protection (CBP). If they pass the entry requirements, they will be admitted to the U.S. as an H1B non-immigrant holder.

If the employee is in the U.S., they will take the approved petition to CBP at a U.S. port of entry. They will then fill out Form I-94 Arrival/Departure Record and enter the U.S. as an H1B holder.

According to the U.S. immigration law, employers must pay each USCIS fee associated with an H1B petition filing and cannot be borne by employees. However, there are some optional fees that can be paid by either the employer or employees. These may include a premium processing service fee and immigration attorney fee. The employees will also be responsible for their visa application fee during consular processing at the U.S. embassy.

Fees that are paid for by the employer:

Registration Fee: $10
Public Law 114-113 Fee: $4,500.00
Basic Filing Fee: $1,015
American Competitiveness and Workforce Improvement Act (ACWIA) Education and Training Fee: $750 or $1,500
Anti-Fraud Fee: $500.00

Fees that are paid for by the employee:

Consular Processing (Form DS-160): $205.00
Premium Processing Fee (Optional): $2,805(Can also be paid for by the Employer)
Immigration Attorney Fee (Optional): Cost will vary (Can also be paid for by the Employer)

American Competitiveness and Workforce Improvement Act (ACWIA) fee varies depending on the number of employees under an employer. For employers with 1 to 25 full-time workers, the required fee is $750. For employers with 26 or more full-time employees, the required fee is $1,500.

Some organizations are exempt from this fee. Examples are nonprofit organizations that have affiliations to government educational institutions and research organizations.

Premium Processing Service

This is an optional service offered to those who wish to expedite their H1B petition process. Employers who wish to use the service will have to submit Form I-907 with the Form I-129 petition. The service requires an additional $2,805 . With premium processing, employers will receive a decision on their H1B petition within 15 days. This means USCIS will process their Form I-129 quickly and will let them know if their petition has been approved or denied.

Typically, the H1B visa is initially granted for 3 years period of stay. You can extend the visa to allow you to stay longer in the U.S. Generally, it cannot be extended beyond the maximum period of 6 years, except in some situations.

Though the H1B is a non-immigrant (temporary) visa, you can leverage it to obtain permanent residence in the United States. To do this, you will have to apply for a green card while your H1B status is still valid.

There are various ways through which an H1B holder can obtain the U.S. lawful permanent resident status.
The most common way is by applying for one of the employment-based green card categories. These include:

• EB1 Green Card: First Preference Employment-Based Immigrant Visa
• EB2 Green Card: Second Preference Employment-Based Immigrant Visa
• EB3 Green Card: Third Preference Employment-Based Immigrant Visa
• EB4 Green Card: Fourth Preference Employment-Based Immigrant Visa
• EB5 Green Card: Immigrant Investor Program. This is for applicants who have between $900,000 and $1.8 million to invest in the U.S.

Alternatively, if you have a qualifying family relationship with either a U.S. citizen or lawful permanent resident, you may also obtain a green card through a family-based green card application.

• O1 Visa for Professionals with Extraordinary Achievement or Ability
• NAFTA TN Visa for Canadian and Mexican citizens as per the North American Free Trade Agreement.
• L1 Intracompany Transferee Visa: For foreign professionals transferred from overseas to the U.S. It is a visa classification that allows foreign organizations to transfer their staff to their U.S. branches or offices.
• E3 Specialty Occupation: For Australian citizens
• E1 Visa: For foreign traders whose countries have a treaty of commerce and navigation with the United States.
• E2 Visa: For foreign investors also from treaty countries.