H-1B Visa

65,000 H-1B visas are available per year. An additional 20,000 H-1B visas are also available for professional workers who obtained a Master's or higher degree from a public or non profit private university.  More people apply for H-1B visas each year than there are visas available. USCIS starts to take basic digital application in early March and runs a lottery by the end of March each year. Depending on the volume of applications received, the selection rate of H-1B visa applicants could be between 25 to 50 percent. If selected, the full application must be filed by the end of June. 

Normally, the H-1B visa is approved in 3-year increments with the start date of October 1st.

Who is Qualified for H-1B visa?

To qualify, you must hold a bachelor's or higher degree (or an equivalent foreign  degree or 12 years of relevant progressive job experience) in the specific field for which you seek H-1B employment. A USCIS Officer will determine whether your offered H-1B job falls under a specialty occupation and whether you are qualified to perform the job duties of the proffered position. Your H-1B employer is required to file a labor condition application with the Department of Labor and must also strictly comply with all terms and conditions. 

How do I get an H-1B visa? 

1. Find a US Employer who needs your professional services in the field of your expertise.
2. Once the hiring is done and offer letter is signed, the H-1B sponsoring Employer will collect your resume and copies of your passport, degree, diploma, transcripts and job experience letters for processing. 
3. Employer hires an immigration lawyer and send the basic company information, along with job title, job duties, address of the job site, salary, resume, degree, diploma, transcripts, and job experience letters to prepare the H-1B visa. 
4. Immigration Lawyer will discuss the case with the employer and provide a missing document list. 
5. Once agreed by all parties on terms and conditions, Immigration Lawyer will request the H-1B employer to post the LCA notice of posting at the job site and file a Labor Condition Application. 
6. Our law firm starts to prepare I-129 and other forms as well as petition letter and obtains credential evaluation if and when needed. 
7. It takes 7 days to obtain certified Labor Condition Application. The certificate LCA and immigration forms must be signed by the H-1B employer prior to filing the H-1B visa petition to the USCIS. 
8. H-1B petitions subject to the cap (H-1B lottery) will need to be registered with the USCIS BETWEEN March 1st to March 20th by paying the $10 H-1B visa registration fee. If selected in the lottery, the full H-1B petition must be filed within 90 days. 
9. About 65,000 H-1B visas are available each year. Additional 20,000 H-1B visas are available for people holding US Master's or higher degree from Public or non-profit college or university. 
10. H-1B transfer, H-1B extension, H-1B amendment can be filed anytime and are not included in the H-1B visa lottery.
11. H-1B visa Initial Filing Fees: employers with less than 25 employees pay $1,710 and employers with more than 25 employees pay $2,460. Employer with more than 50 employees and where 50% or higher of the employees hold H-1B or L-1 visas pay an additional $4,000. The premium processing fee of $2500 is optional. 
12. H-1B Receipt Notices shall arrive within 2 to 3 weeks of filing an acceptable H-1B visa petition at the correct USCIS Service Center. 
13. H-1B Premium processing cases (for an additional fee of $2500) will be processed within 2 weeks if premium processing is allowed by the USCIS at that particular time. Normal processing time varies and could take around 4 to 6 moths. USCIS will either approve the H-1B visa or request for additional evidence on availability of specialty occupation, qualification of the H-1B worker and maintenance of status of the H-1B worker is already in the US in another visa category. 
14. Upon approval of the H-1B visa by USCIS, you can start to work if you are already in the US or apply for a work visa at the Embassy or Consulate. When your petition is approved, your employer or attorney will receive a Notice of Action, Form I-797, which serves as your petition's approval notification. 
15. To apply for an H-1B visa at the US embassy or consulate, you will complete and submit DS 160 and other relevant forms and pay set fee. At the H-1B visa interview, The Consular Officer will verify your petition approval through the Department of State's Petition Information Management Service (PIMS) and will verify your background and credentials. At this time, the Consular Officer will also verify bonafideness of the H-1B visa sponsoring employer. Once the Consul Officer issues the H-1B visa, you can come and start to work. 
16. US government agencies involved in the H-1B visa life cycle: The Employment and Training Administration (ETA) of the USDOL approves the LCA; The U.S. Citizenship and Immigration Services (USCIS) approves H-1B visa classification (status); The Department of State or the Embassy or Consulates issues the H-1B visa; The Wage and Hour Division (WHD) of USDOL enforces the employer's LCA obligations; and lastly the FDNS monitors the genuineness of the H-1B visa program through random site visit.  
17. Why hire our law firm for your H-1B visa? Keshab has successfully handled over 75,000 H-1B visas. He has extensive experience in dealing with complex H-1B visa matters including successfully responding to difficult Request for Additional Evidence (RFEs).  Has represented 100s of corporations and thousands of individuals. Call us at 2125716002 or send an email to [email protected]

H-1B sponsorships require that both the employer and employee meet several conditions. To be eligible for H-1B visa classification:

• The petitioner must be an U.S. employer
• The position must be a specialty occupation
• The worker must be qualified by meeting the credentials of the offered position
• H-1B visas must be available
• The petitioning employer must get a Labor Condition Application (LCA)
• U.S. Citizenship and Immigration Services (USCIS) must receive the H-1B petition file and approve it

H-1B Petitioner Requirements

Under H-1B requirements, the employer petitioning for an H-1B visa must be a United States employer. A United States employer is one that:

• Hires a person to work in the U.S
• Has an employer-employee relationship which consists of the right to:
• Hire
•  Fire
•  Pay
• Supervise
• Control the worker's work
• Has a federal employer tax identification number issued by the Internal Revenue Service (IRS)
•  A U.S. employer may consist of any of these roles:
• Person
• Firm
•  Corporation
• Contractor
• Association
• Other types of organizations

H-1B Employment Requirements

The proffered position in which an H-1B worker will be employed must be a specialty occupation. Therefore, it must:

• Apply a highly specialized body of knowledge
• Require a minimum of a bachelor's degree or its foreign equivalent

Examples of jobs in fields which count as specialty occupations include:

• Architecture
• Engineering
• Mathematics
• Physical or social science
• Medicine and health
• Education
• Law
• Theology
• Arts

This list is not exhaustive. A worker who specializes in a field which requires a certain body of knowledge and has the necessary requirements may be granted an H-1B visa.

Education Required for H-1B Jobs

The employment offer for the foreign worker must require a minimum educational requirement of a bachelor's degree in a related field. In order to show that they meet the credentials of the position, workers may submit:

• A U.S. bachelor's degree or higher from an accredited institution or its foreign equivalent
• Education, training, or experience that may be equivalent to specific U.S. degrees. A few ways equivalency may be proved by is:
• Completing a college-level equivalency exam in the specialty
•  An evaluation by a reliable credentials evaluation service
• Certification by a nationally recognized association that regularly certifies competence in the specialty
• A combination of education, training, and experience defined by USCIS as equivalent so specific U.S. degrees:
  • Three years of progressive experience is equivalent to one year of university level education
  • A bachelor's degree and five years of progressive experience
  • No equivalence allowed. The worker must have a U.S. or foreign equivalent doctorate degree
• Bachelor's degree
• Master's degree
• Doctorate degree

What is H-1B Transfer? 

H-1B visa Transfers allow an employee to transfer from one employer to another if the proper procedures are followed, and the Transfer petition is filed with the USCIS. It is the Employee's responsibility to file a H-1B Transfer with the cooperation of their new employer.

An employee should not resign from their current position until the petition for Transfer is approved. It can take up to eight weeks after submitting the application for the USCIS to process a H-1B Transfer petition.

A properly filed H-1B Transfer must prove the applicant has maintained valid H-1B status at the time of filing H-1B Transfer. Furthermore, 3rd party client site placement requires the H-1B sponsoring company to provide end client letter, contract and purchase order and overcome doubts over employer-employee relationship and actual control by providing documentation to overcome these doubts which include but not limited to employment agreements, benefits information, and performance reviews, email communication printouts, screen shots of all interactions between the employer/employee.  

H-1B Cap

The H-1B visa provides specialty occupation foreign workers the ability to stay and work in the United States. Congress has set the annual cap for H-1B visas at 65,000. However, not all H-1B visas are subject to this cap. Each year, 6,800 visas are set aside for the H-1B1 program for citizens of Chile and Singapore. This exemption exists because of free trade agreements between these countries and the United States. USCIS transfers any unused visas in this group to the next fiscal year to use for the regular H-1B cap.

Another exemption from the H-1B cap is the advanced degree exemption. This exemption is available for beneficiaries who have earned a master's degree or higher. The main requirements are that the degree is from a United States institution, a nationally recognized agency accredits the institution, and the institution is either public or non-profit.

Other ways to be considered H-1B cap-exempt are if the employer is a higher education institution, a non-profit associated with a higher education institution, or a non-profit or government research organization. If the beneficiary works in either Guam or the Commonwealth of Northern Mariana Islands (CNMI), they may also be exempt from the H-1B cap. H-1B workers in Guam or CNMI are exempt if their employers file the petition before December 31, 2029.

If USCIS has previously granted an H-1B cap to a beneficiary, then they will not be subject to the cap. USCIS will continue to process an extension of stay and change of employment for the H-1B holder along with cap exemption.

H-1B Validity Periods

The H-1B visa is designed for temporary workers in a specialty occupation. Workers in the United States with H-1B status may not exceed their duration of stay beyond the typical six-year maximum. If they have already spent six years in the U.S., they must remain outside the country for one year. After this time, they may qualify for another H-1B visa, which would also be limited to the six-year maximum.

USCIS may allow extensions of H-1B visas beyond the six-year maximum in certain situations. To legally stay in the U.S. with an extended stay, workers must be on the way to an employment-based visa or permanent resident status. Due to a significant demand for employment-based visas, and annual caps on how many visas are issued, many workers find that their applications are still under review as their H-1B visa is expiring. In this case, an H-1B beneficiary may still be able to extend their status incrementally through one or three-year periods. An H-1B worker must have a pending Form I-140, labor certification request, or petition for permanent resident status to be eligible for incremental extensions. Additionally, workers must continue to meet all the requirements for H-1B status to qualify for an extension.

The foreign worker must meet specific requirements to be eligible for a three-year extension of H-1B status. They must have an approved I-140 petition in EB-1, EB-2, or EB-3 categories, be otherwise eligible for adjustment of status from H-1B worker to employment-based visa, or be eligible to apply for adjustment of status but were subject to a cut-off date. To qualify for the three-year extensions, an applicant does not need to be on H-1B status currently. For one-year extensions, applicants must have previously been on H-1B status, or it has been 365 days since they filed a Labor Certification Application (LCA), or the LCA or I-140 petition has not expired or been denied.

USCIS has recently made provisions in the form of grace periods if workers suddenly find themselves without a sponsoring employer. At the start and end of an H-1B validity period, workers will have a ten-day grace period to settle before beginning employment or leaving the country. Additionally, if an employee is terminated before the end of their official H-1B duration of stay, they will be granted a grace period.

Labor Condition Application

The first step for an employer to file an H-1B visa petition on behalf of an individual is filing a Labor Condition Application for Nonimmigrant Workers (LCA) and obtaining certification from the Department of Labor. Without a certified LCA from the Department of Labor, an H-1B visa petition cannot be filed.

To make sure that H-1B petitioners are not hiring immigrants at low wages, there are a few attestations and activities that the employer must state in the LCA:

• The employer must pay the foreign worker a higher or equal wage to the prevailing wage rate for similarly employed individuals in the area with similar experience and qualifications.
• The employer must attest that the working conditions offered to the H-1B worker will be the same conditions as its US workers. Working conditions refer to hours, shifts, vacation periods, and benefits. 
• The H-1B worker must not be hired for a position that is in labor dispute due to a strike or lockout. 
• The employer must attest that within 30 days before filing the LCA, they have given notice of the filing to either:
• The union bargaining representative, if the H-1B worker's future position is represented by a union, or 
• All employees if the position is not unionized. This notice may be given through hardcopy or electronically. 

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

USCIS sends a notice called a request for evidence, or RFE, when they need more proof to decide an H-1B case. The H-1B classification applies to individuals who perform services in a specialty occupation. When an employer files Form I-129, Petition for a Nonimmigrant Worker, they must provide evidence of their relationship with the employee and their qualifications.

For USCIS to determine that the proffered position is a specialty occupation, the petitioner must provide adequate evidence to satisfy at least one of the four criteria:

1. A bachelor's or higher degree or equivalent is usually the minimum requirement for entry into the particular position.
2. The degree requirement is common to the industry in parallel positions among similar organizations. Alternatively, employers can show that their specific role is so unique that an individual can only perform it with a degree.
3. The employer typically requires a degree or its equivalent for the position.
4. The specific duties are so specialized that the knowledge necessary to perform the duties is usually associated with attaining a bachelor's or higher degree.

To perform services in a specialty occupation, the beneficiary must meet one of the following criteria:

1. Hold a U.S. bachelor's or higher degree or equivalent foreign degree required by the specialty occupation from an accredited college or university.
2. Hold an unrestricted state license, registration or certification which authorizes them to practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
3. Have education, specialized training, and/or progressively responsible experience equivalent to completing a U.S. bachelor's or higher degree in the specialty occupation and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

If adequate initial evidence is not submitted with an H-1B petition or does not demonstrate eligibility, USCIS may deny the request for lack of proof or request that the evidence be provided within 12 weeks. A request for evidence will specify the evidence already provided and what is still required. There are several reasons why USCIS may issue an RFE:

1. Specialty Occupation

The petitioner did not establish that the position qualifies as a specialty occupation defined by the four criteria.

2. Employer-Employee Relationship

The petitioner did not establish a valid employer-employee relationship with the beneficiary by having the right to control the beneficiary's work, including hiring, firing, or supervising the beneficiary for the requested period.

3. Availability of Work

The petitioner did not establish that they have specific qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.

4. Beneficiary Qualifications

The petitioner did not establish that the beneficiary was qualified to perform services in a specialty occupation.

5. Maintenance of Status

The petitioner did not establish that the beneficiary properly maintained their current status.

6. Labor Condition Application (LCA)

The petitioner did not establish that they obtained a certified LCA and that the LCA corresponds to the position. An LCA as certified by the Department of Labor must accurately represent employment terms.

7. AC21 and Six-Year Limit

The petitioner did not establish that the beneficiary was eligible for AC21 (American Competitiveness in the 21st Century Act) benefits or suitable for an H-1B extension after hitting the six-year limit.

8. Itinerary 

The itinerary accompanying the H-1B petition must include the dates and locations of the services to be provided.

9. Filing Fee

The petitioner did not establish that they paid all required filing fees.

USCIS checks all petitions filed for H-1B through the Validation Instrument for Business Enterprises (VIBE) Program. VIBE uses data from an independent information provider to validate basic information about companies petitioning to employ noncitizens. Discrepancies between evidence submitted through the petition and information obtained by VIBE can cause an RFE notice.

An important note is that USCIS updated its policy guidance regarding deference in prior eligibility determinations. That guidance directed officers to generally defer to initial determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition. USCIS will consider previous decisions made and afford deference to its prior decision-making. President Biden's executive order aims to identify barriers that impede fair access to immigration benefits. 

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