H-1B Visa

Each year, there are 65,000 H-1B visas available for professionals, and an additional 20,000 visas for those with master's degrees or higher from eligible universities. However, the demand for H-1B visas typically exceeds the available number. The application process begins in early March 2023, with USCIS accepting digital applications. By the end of March, a lottery is conducted due to the high volume of applications. The selection rate for H-1B visa applicants can range from 25 to 50 percent, depending on the number of applications received. If selected, the full application must be filed by the end of June.

Normally, the H-1B visa is approved for a period of three years, starting on October 1st.

To qualify for an H-1B visa, you must have a bachelor's degree or higher (or equivalent foreign degree) in the specific field related to the H-1B employment. Alternatively, you can have 12 years of relevant progressive job experience. A USCIS officer will assess whether your offered job falls under a specialty occupation and determine if you are qualified to perform the required duties. Your H-1B employer must file a labor condition application with the Department of Labor and adhere to all terms and conditions.

H-1B Visa Process: Step-by-Step Overview

STEP 1: Labor Condition Application (LCA)

- The process begins after you return the completed H-1B Visa and LCA
Requirements Sheet and we finalize key details such as job title, job
duties, and offered salary.
- Once ready, we will file the LCA with the U.S. Department of Labor
(DOL).

Processing Time:
- Existing Employers: Approximately 7 calendar days.
- New Employers: May take up to 10 days, depending on DOL
verification.

STEP 2: Filing the H-1B Petition with USCIS

- Upon LCA certification, the H-1B sponsoring employer must submit a
full petition package to USCIS, including:
- Form I-129
- H Classification Supplement
- H-1B Data Collection and Filing Fee Exemption Supplement
- Certified LCA
- Educational credentials
- Support letter with job description
- Evidence of bona fide employer-employee relationship
- Proof that the position qualifies as a specialty occupation

Processing Time:
- Regular Processing: Approximately 3 to 6 months.
- Premium Processing (Optional): Approval or RFE typically within 15
calendar days.

STEP 3: Visa Stamping or Employment Start

If the beneficiary is outside the U.S.:
Complete Form DS-160 and schedule an H-1B visa interview at a U.S. Consulate (e.g., in Hyderabad, Tokyo).

If the beneficiary is inside the U.S.:
Start working for the employer within 60 days of the H-1B approval or from the petition's requested start date, whichever is later.

To be eligible for H-1B visa classification, both the employer and employee must meet certain conditions:

1. The petitioner must be a US employer.
2. The position must be a specialty occupation.
3. The worker must be qualified for the offered position.
4. H-1B visas must be available.
5. The petitioning employer must obtain a Labor Condition Application (LCA).
6. USCIS must receive and approve the H-1B petition.

The employer petitioning for an H-1B visa must be a US employer, meaning they hire individuals to work in the US and have an employer-employee relationship with the right to hire, fire, pay, supervise, and control the worker's work. The employer must also have a federal employer tax identification number issued by the IRS. Various types of organizations can qualify as US employers.

The proffered position for the H-1B worker must be a specialty occupation, applying a highly specialized body of knowledge and requiring at least a bachelor's degree or its foreign equivalent. Specialty occupations can include fields such as architecture, engineering, mathematics, physical or social sciences, medicine and health, education, law, theology, arts, and more.

To show that they meet the credentials of the position, workers must have a minimum educational requirement of a bachelor's degree in a related field. They can provide a US bachelor's degree or its foreign equivalent, education/training/experience equivalent to specific US degrees, certification by a recognized association, or a combination of education, training, and experience defined as equivalent by USCIS.

What is an H-1B transfer?

An H-1B transfer allows an employee to move from one employer to another, provided that the proper procedures are followed and a transfer petition is filed with USCIS. The responsibility for filing an H-1B transfer lies with the employee, in coordination with their new employer.

It is crucial for the employee not to resign from their current position until the transfer petition is approved. The processing time for an H-1B transfer petition by USCIS can take up to eight weeks.

To file a valid H-1B transfer, the applicant must demonstrate that they maintained valid H-1B status at the time of filing. Additionally, when the H-1B employment involves working at a client site provided by a third party, the sponsoring company must provide supporting documentation, such as an end client letter, contract, purchase order, and other relevant documentation. These documents help establish the employer-employee relationship and demonstrate actual control. Additional evidence can include employment agreements, benefits information, performance reviews, and communication records between the employer and employee.

H-1B Cap:

The H-1B visa allows foreign workers in specialty occupations to work and stay in the United States. The annual cap for H-1B visas is set at 65,000. However, there are exemptions to this cap. Each year, 6,800 visas are reserved for the H-1B1 program, which applies to citizens of Chile and Singapore due to free trade agreements with the US. Any unused visas from this group are transferred to the regular H-1B cap for the next fiscal year.

Another exemption is the advanced degree exemption, which applies to beneficiaries with a master's degree or higher from a US institution that is nationally recognized and either public or non-profit.

Certain employers and workers may also qualify for H-1B cap-exempt status. This includes higher education institutions, non-profits associated with higher education institutions, non-profits or government research organizations, and workers in Guam or the Commonwealth of Northern Mariana Islands (CNMI) if the petition is filed before December 31, 2029.

If an H-1B cap has been granted to a beneficiary in the past, they are exempt from the cap. USCIS continues to process extension of stay and change of employment requests for H-1B holders with cap exemption.

H-1B Validity Periods:

The H-1B visa is intended for temporary workers in specialty occupations. The maximum duration of stay in the US under H-1B status is typically six years. If an individual has already spent six years in the US under H-1B status, they must remain outside the country for one year before becoming eligible for another H-1B visa, which would also be limited to a maximum of six years.

USCIS may grant extensions beyond the six-year limit under certain circumstances. To stay in the US with an extended stay, workers must be on their way to obtaining an employment-based visa or permanent resident status. Due to high demand and annual caps for employment-based visas, many workers find their applications still under review as their H-1B visa approaches expiration. In such cases, H-1B beneficiaries may be eligible for incremental extensions of one or three years. To qualify for these extensions, the beneficiary must have a pending Form I-140, labor certification request, or petition for permanent resident status. They must also continue to meet all requirements for H-1B status.

USCIS has implemented grace periods to provide flexibility in certain situations. At the beginning and end of an H-1B validity period, there is a ten-day grace period for employees to settle before starting employment or leaving the country. If an employee is terminated before their official H-1B duration of stay ends, they are granted a grace period.

Labor Condition Application:

The first step in filing an H-1B visa petition on behalf of an individual is submitting a Labor Condition Application for Nonimmigrant Workers (LCA) and obtaining certification from the Department of Labor. A certified LCA is a prerequisite for filing an H-1B visa petition.

The LCA ensures that employers do not hire foreign workers at wages lower than the prevailing wage rate for similar positions in the area. The LCA also requires employers to attest that the working conditions offered to H-1B workers are the same as those provided to US workers in similar positions. Additionally, it requires notification to be provided to the union bargaining representative (if applicable) or to all employees regarding the filing of the LCA.

Common Issues with H-1B Request for Evidence (RFE) Notices:

USCIS issues a Request for Evidence (RFE) notice when additional proof is needed to adjudicate an H-1B case. Common reasons for receiving an RFE include:

1. Specialty Occupation: Failure to establish that the position qualifies as a specialty occupation according to the defined criteria.
2. Employer-Employee Relationship: Inability to demonstrate a valid employer-employee relationship, including the right to control the beneficiary's work.
3. Availability of Work: Failure to demonstrate that the employer has specific qualifying assignments in a specialty occupation for the entire requested period.
4. Beneficiary Qualifications: Inability to establish that the beneficiary is qualified to perform services in a specialty occupation.
5. Maintenance of Status: Failure to prove that the beneficiary properly maintained their current status.
6. Labor Condition Application (LCA): Failure to obtain a certified LCA or demonstrate its correspondence to the position.
7. AC21 and Six-Year Limit: Inability to establish eligibility for AC21 benefits or H-1B extension beyond the six-year limit.
8. Itinerary: Lack of inclusion of dates and locations of services in the itinerary accompanying the H-1B petition.
9. Filing Fee: Failure to provide evidence of paying all required filing fees.

USCIS employs the Validation Instrument for Business Enterprises (VIBE) Program to validate basic information about companies petitioning for H-1B visas. Discrepancies between submitted evidence and VIBE information can result in an RFE notice.

It is important to note that USCIS has updated its policy guidance on deference to prior eligibility determinations. This guidance directs officers to generally defer to previous determinations of eligibility when adjudicating extension petitions involving the same parties and facts as the initial petition. USCIS considers previous decisions made and grants deference to its prior decision-making. The aim is to identify and address barriers that impede fair access to immigration benefits, as outlined in President Biden's executive order.

Contact us today at 212-571-6002 for more information.