Let our deep legal expertise and technology-enabled processes guide you in your U.S. immigration journey
Home > Blog > H-1B Visa
Last Updated On: February 6, 2024 | Published On: September 17, 2022
The H-1B application process is highly complex and involves numerous steps, which are described in detail on this page. H-1B visa is a non-immigrant visa that permits foreign workers in specialty occupations to enter the country. While the H-1B already has an application process that is more complicated than most other visas, this fiscal year, things are a little bit different. What this means is that it’s increasingly important to organize your documents for submission and complete the other necessary steps in the process.
NEWS ALERT: USCIS Announces H-1B Cap Reached for FY 2024. CLICK HERE TO LEARN MORE.
The entire H-1B application process will require various steps involving the United States state, labor, and immigration departments. These agencies have the responsibility of ensuring every foreign job applicant meets the eligibility requirements for the job they are pursuing.
See the latest H-1B Visa Guide: Ultimate Lottery, Timeline & Process
They will also want to be sure that the employer is eligible to hire and sponsor a foreign national for a given visa classification and has the financial ability to pay the necessary wages. They also must determine that offering the position to a foreign worker will not affect qualified U.S. workers. In addition, they will want to be sure that the foreign national doesn’t have a criminal record that may make them inadmissible to the United States.
So, the whole purpose of the entire application process is for you and your employer to demonstrate (with applicable supporting evidence) that you are both eligible for the H-1B as beneficiary and sponsor. So, the process is as follows:
Before you can submit an H-1B visa petition and carry out the H-1B visa application process you must first find a sponsoring company or employer. If you’re currently in the United States as a student on an F1 visa, you should check with your employer as to whether or not they can sponsor you on an H-1B visa. If you are on an L1 visa or another visa status, it’s best to contact an immigration attorney to explore your specific case.
Your H-1B visa can be sponsored by your current employer or a new, prospective employer. What is important is to reach an agreement that the employer, whether new or existing, is willing to sponsor you.
The Labor Condition Application (LCA) is a compulsory document that must be fulfilled by every employer who wants to employ a foreign national on an H-1B visa. It must be filed with the U.S. Department of Labor (DOL). However, before an LCA can be certified by the DOL, certain mandatory procedures must be undergone. They are as follows:
The purpose of the prevailing wage is to ensure that the foreign worker is not underpaid compared to other workers offering the same or similar service in the same area of employment.
The prevailing and actual wages should be confirmed by the State Employment Security Agency. If the prevailing wage exceeds the offer made by the prospective employer then a wage determination will be sought. It’s important to ensure that the foreign worker will not be working below the minimum. The prevailing wage in a specific location. The Foreign Labor Certification Data Center maintains the prevailing wage determinations by location. The prevailing appropriate wage for H-1B visa applications can be determined using any of these three sources:
It is, however, advisable that employers get their PWD from the most reliable of the three sources, which is the NPWC as it offers “safe harbor status.”
After obtaining the prevailing wage, the employer will need to submit the LCA by filing Form ETA 9035 with the DOL. The application must be submitted electronically via the Foreign Labor Application Gateway (FLAG) system. The form must not be submitted more than six months from the starting date of the period of employment.
For employers who have physical disabilities or those who lack internet access, they may be allowed to file their ETA 9035 by mail if they send a prior request for special permission to the Office of Foreign Labor Certification (OFLC).
Once the LCA process has been completed, the employer can proceed to submit the H-1B petition by filing the I-129. Form I-129 is officially known as the Petition for Nonimmigrant Worker. The employer must be sure to include the employment letter with the position’s exact duties, dates of employment, detailed description, salary offered, position requirements, contact information, etc.
The foreign employee’s academic qualifications, training certificates, membership documents, resume, and letter of support must also be included as part of supporting documents.
The final step of the H-1B visa application process is to check the status of your H-1B visa petition by entering your receipt number into the USCIS website. Once USCIS has your application on file, they will update your status on their system.
After your I-129 is approved, you will receive Form I-797 Notice of Action and you are one step closer to completing the process.
If you are in the U.S. then your immigration status will automatically be changed to H-1B. The USCIS will update your I-94 record to indicate your new visa class to H-1B status. You must, however, wait until your status has been changed before you undertake any employment in the country. To receive an H-1B visa stamp, you must submit DS-160 and schedule a visa stamping appointment no longer than 90 days before you start working in the U.S. This is only available to those that are already under a valid nonimmigrant status such as O-1, J-1, or L-1 status.
Alternatively, if you are residing in the U.S., you can apply through consular processing. For that, you will need to travel back to your home country and get your visa stamped at the U.S. embassy or consulate in your country. Bear in mind that consular processing involves some additional applications and documentation. There is also a possibility of administrative processing, which could further delay your employment.
If your application was submitted outside of the U.S., then you will not only have to fill out DS-160 but also schedule and attend an interview at a U.S. embassy or consulate. Once the I-129 form has been approved, you will need to submit a nonimmigrant visa application at a U.S, embassy or consulate in your home country. This process involves certain documentation and a physical interview at the embassy or consulate. If you are granted a visa after your interview, you will be able to travel to the United States.
Keep in mind, however, that this is only a valid document that allows you to travel to the United States. Once you reach a port of entry, you will still need to get approval to enter the country. Also, every visa is issued with an expiration date, which means you must use it to enter the U.S. before it expires. Once you have arrived at the airport or border, you will need to get permission from the U.S. Customs and Border Protection (CBP) for admission to the United States as an H-1B holder.
Learn about H-1B RFE reasons and how to respond in this guide!
H-1B visa application process fees are typically all paid by the employer who is sponsoring the foreign worker. Below is a breakdown of the standard filing costs:
Fee
Amount
Responsible for Fee
Registration Fee
$10
$215 after 1/4/2024
Employer
Premium Processing (optional)
$2,805
Employer or Employee
Public Law 114-113 Fee
$4,000 (if 50+ employees)
Basic Filing Fee
$780
$460 for small employers and nonprofits)
USCIS Anti-Fraud Fee
$500
ACWIA Education and Training Fee
$750 (less than 25 employees)
$1,500 (more than 25 employees)
Attorney Fee
Variable
This is a brief breakdown of the fees and is subject to change depending on the size of your organization as well as other details. Click here to get a complete breakdown of the H-1B application process fees.
Processing times for H-1B visa application petitions are subject to vary from location to location. In general it takes anywhere from 5 to 7 months to process an H-1B application.
If you would like your petition expedited you may elect for premium processing. There is an additional charge for this service and it does not necessarily guarantee approval. The current premium processing service fee is $1,440. With that fee, you can submit an I-907 form, known as Request for Premium Processing Service. This form can be filed together with your I-129 or submitted later while the I-129 is still pending with USCIS. With premium processing, the I-129 petition will be processed within 15 calendar days.
The USCIS developed an electronic registration process for employers seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree petitions, who will have to undergo a pre-registered online process.
It is worth noting that this process does not change or replace the existing H-1B visa application process, it is only put in place to streamline the process and also reduce upfront paperwork and data exchange. The registration will open for a limited period of time and the selection process will begin after the closure of registration. To register for the program, prospective petitioners must first create an online account with USCIS by signing up here on this webpage.
Before petitioners can be eligible to submit a registration, they will have to pay a non-refundable $10 fee for each H-1B beneficiary they want to sponsor. Only petitioners whose registrations were selected will be eligible to file H-1B petitions to sponsor their employees or prospective employees.
The H-1B quota is the maximum number of petitions accepted within that category. There are three main categories within the H-1B visa season as the infographic illustrates:
Regular H-1B Quota: 65,000
Master’s Degree Quota: 20,000
Citizens of Chile and Singapore: 6,800 from the regular quota are reserved for citizens of Chile and Singapore as part of the Free Trade Agreement.
Cap Exempt H-1B: No quota imposed.
As in the previous years, the H-1B visa caps remain at 65,000 for the regular category and 20,000 for the master’s category. Records show that USCIS received a total of 94,213 registrations for the regular quota and 95,885 for the master’s quota this year. So, in line with the H-1B visa application rule, once the USCIS has selected the stipulated limit for each category, other applicants will have to wait until the next fiscal year before applying for an H-1B visa.
Check out our Predictions for H-1B Visa Lottery.
To be eligible for the master’s quota (advanced-degree exemption) there are a number of requirements you must first meet. You must have received your master’s degree from an accredited U.S.-based institution. The institution also has to be public or non-profit in nature as well as accredited by a national accrediting agency. It’s best to not assume that your U.S. institution is automatically accredited because that’s not always the case.
The H-1B visa application process can be tedious and must be approached with care. It’s best to avoid any errors or pitfalls that could lead to a denial or delay of your petition. This is why you need the service of an expert H-1B immigration lawyer to help you obtain your H-1B.
VisaNation Law Group delivers exceptional service to clients around the world. They specialize in H-1B visa cases, employment green cards, family immigration cases, investor visas, and more. With a highly competitive H-1B filing fee and efficient service, their firm is one of the most trusted in the United States. Schedule a consultation today.
Tags: Consular Processing, H-1B Rules, Immigration Forms
