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H1B Visa
Overview
The H-1B visa is a non-immigrant work visa that allows U.S. companies to hire foreign workers for specialty occupations. This visa is especially popular in the technology, engineering, and healthcare sectors, as it enables employers to fill positions requiring specific expertise and education. The H-1B visa is initially valid for three years, with the possibility of extending it for another three years, totaling six years. Extensions beyond this six-year period are possible only if the foreign worker reaches a certain stage in their Green Card sponsorship. Additionally, the H-1B visa is subject to an annual cap, making the application process highly competitive.
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Requirements for an H-1B Visa
To qualify for an H-1B visa, both the employer and the foreign national employee must meet several key requirements:
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Employer Requirements:
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U.S. Petitioner: A U.S. employer must be willing to sponsor the foreign worker for temporay employment in the United States.
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Job Offer in a Specialty Occupation: The employer must provide a job offer to the foreign worker in a specialty occupation (one normally requiring a specific specialty degree).
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Labor Condition Application (LCA): The employer must submit an LCA to the Department of Labor (DOL), certifying that they will pay the prevailing wage for the position and that hiring the foreign worker will not adversely affect the working conditions of U.S. workers
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Employee Requirements:
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Educational Qualifications: The applicant must have the required educational credentials, usually including at least a U.S. bachelor’s degree or its equivalent in the relevant field
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Professional Experience: If the applicant does not have a bachelor’s degree, they may qualify based on a combination of education and professional experience (typically three years of experience for each year of college education not completed).
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Benefits of an H-1B Visa
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Dual Intent: H-1B visa holders can apply for permanent residency (Green Card) while maintaining their non-immigrant status, allowing them to work towards a long-term stay in the U.S.
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Dependents: H-1B holders can bring their spouse and children under the age of 21 to the U.S. on H-4 visas. H-4 visa holders are eligible to apply for work authorization (Form I-765) once the H-1B worker obtains an I-140 (immigrant petition) approval.
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Job Flexibility: H-1B visa holders can change employers, provided that the new employer files a new H-1B petition. They are eligible to begin work upon receipt of the new H-1B petition by USCIS (H-1B portability), allowing for greater mobility in the job market.
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Duration of Stay: H-1B status is initially granted for three years and can be extended for a total of six years. Extensions beyond six years may be possible if the applicant has started the Green Card process. Specifically, under sections 104 and 106 of the American Competitiveness in the 21st Century Act (AC 21), it is possible to obtain H-1B status beyond the six-year limit if:
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365 days or more have passed since the filing of any application for labor certification (Form 9089) that is required or used by the foreign worker to obtain status as an EB immigrant; or
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365 days or more have passed since the filing of an EB immigrant petition (I-140); or
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The foreign worker is the beneficiary of an approved EB immigration petition and is unable to file to adjust status to U.S. permanent legal residence due to the unavailability of an immigrant visa number.
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H-1B Visa Lottery System
Due to the high demand for H-1B visas, the U.S. Citizenship and Immigration Services (USCIS) implements a lottery system to randomly select petitions for processing when applications exceed the annual cap. The cap is currently set at 65,000 H-1B visas per fiscal year, with an additional 20,000 visas available for applicants holding a master’s degree or higher from a U.S. institution.
Lottery Process:
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Registration: Employers must first register their H-1B petition electronically during the designated registration period, typically occurring in March. There is a registration fee for this process.
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Random Selection: If the number of registrations exceeds the cap, USCIS conducts a random lottery to select which petitions will be processed. Selected employers will be notified, and they can then file the full H-1B petition.
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Petition Filing: Once selected in the lottery, employers must file the complete H-1B petition (Form I-129) within a specified period. Petitions that are not selected will not be processed, and the employers must wait until the next registration period to reapply.
How to File for an H-1B
The application process for an H-1B visa involves several steps, primarily managed by the U.S. employer:
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Labor Condition Application (LCA) filing with U.S. Department of Labor:
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The U.S. employer must first make a formal job offer to the foreign worker.
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The employer then files a Labor Condition Application (aka LCA) with the Department of Labor (DOL), attesting to the wage and working conditions. This includes:
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Job title and job category.
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Salary and benefits.
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Work location.
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The LCA must be certified by the DOL before proceeding to the next step.
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Form I-129 Filing:
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Once the LCA is certified, the employer completes and files Form I-129 (Petition for a Nonimmigrant Worker) with USCIS. This form includes:
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Information about the employer.
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Details about the offered job in a specialty occupation.
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Confirmation that the foreign worker qualifies for the specialty occupation.
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The certified LCA.
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Attach Supporting Documentation:
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With it's I-129 filing, the employer must provide supporting documents, including:
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Proof of the employee’s educational qualifications (degrees, transcripts, foreign educational evaluation).
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Evidence of the employer's business operations (FEIN letter, formation documents, tax documents, etc).
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A detailed job description outlining the duties and responsibilities and how Beneficiary will be supervised by the Petitioner.
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USCIS Processing:
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Once the petition is filed, USCIS will review the application and may approve, deny or issue a request for evidnece (RFE). Processing times may vary, but premium processing is available for an expedited review in 15 business days. The additional filing fee for premium processing is $2,805..
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If approved, USCIS will issue a Form I-797 (Notice of Action).
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Visa Application:
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If the employee is not visa-exempt (Canadian) and is outside of the U.S., they must apply for an H-1B visa at a U.S. embassy or consulate. This involves:
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Completing Form DS-160 (Online Nonimmigrant Visa Application).
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Paying the visa application fee.
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Attending a visa interview, where they will present documentation, including the Form I-797 approval notice.
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Entry to the U.S.:
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Upon receiving the I-797 / H-1B visa stamp, the employee can enter the U.S. to begin their employment.
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Contact Us
If you’re considering applying for an H1B visa or have any questions about the process, our law firm is here to assist you, don't hesitate to contact us and book a consultation at your earliest convenience. We specialize in U.S. employment immigration law and can guide you through every step of the application process. Contact us today to schedule a consultation!