The H-1B visa is a common initial work visa, often following from a student visa to future green card. However, it has exacting skill requirements and strict timing deadlines. Learn more below.
H-1B petitions, like most employment-based visa petitions, must be filed by a U.S. business entity (the “Petitioner”) seeking to employ a foreign worker (the “Beneficiary”). The U.S. business entity must be registered with the U.S. Internal Revenue Service tax authorities, and must sign up with the U.S. Department of Labor. For H-1B lottery season, the Petitioner must also pre-register online with the U.S. Citizenship and Immigration Services (USCIS) in March.
An H-1B petition benefits a foreign worker who has the skills to fulfill a “specialty occupation” job position – meaning a position which at a minimum requires skills typically associated with a bachelor’s degree.
A typical robust H-1B petition typically takes around three weeks to prepare and file, depending on employer responsiveness. Aside from discussions with the attorney’s office, the following hard deadlines apply to most H-1Bs:
Employer must register with DOL (2-3 business days)
Employer must submit Labor Conditional Application DOL ETA Form 9035 and have it certified by DOL (10 business days)
Employer must register with USCIS online (2-3 business days).
USCIS will conduct its lottery selections in late March and notify those selected to move ahead.
Selected employers must file H-1B petition Form I-129H during early April, if subject to the H-1B Cap.
If approved, H-1B is typically valid starting Oct. 1 of the same year in which it was filed. H-1B duration is typically from 1 to 3 years, and may be renewed for a total not to exceed 6 years.
The H-1B Cap Lottery
Most first-time H-1B visas are subject to a hard limit (“cap”) of 85,000: a general selection of 65,000, plus a special selection of 20,000 exclusively for holders of U.S. master’s degrees. Some employers are exempt from the H-1B visa cap, including those positions with higher education institutions, non-profit organizations associated with a higher education institution, and non-profit research or government organizations.
Recent Regulatory Changes and Considerations
The previous White House targeted the H-1B process for fraud prevention, and introduced several new limitations. Several of these have been overturned or rescinded by the current Biden Administration.
Computer Programmer and similar job positions were subject to increased scrutiny;
Positions in lower wage levels faced increased challenges during adjudication;
Positions located at third-party worksites faced increased scrutiny, including requests to show sufficient work orders to sustain the foreigner’s placement there for the entire requested time (i.e. up to 3 years of proof of future work orders);
Biden’s Administration reversed the Trump-era rules requiring higher minimum wages for foreign workers.
Pathway to a Green Card
The H-1B is usually approved for 1 to 3 years, and may be renewed, to a maximum of 6 years. However, the H-1B status itself does not result in Lawful Permanent Resident status (a “green card”), but it is often used as an initial stage to prepare the foreign worker for one.
Often, a U.S. employer who is pleased with their H-1B worker’s performance can also file an EB-2 or EB-3, which are immigrant green card petitions for an employee. These future plans may seem distant, but wise employers should take these EB-2/EB-3 plans into account even as they prepare the initial H-1B, because these separate petitions should present consistent facts. Additionally, the EB-2 and EB-3 petitions often introduce additional requirements above and beyond the H-1B work arrangements.
Get your H-1B filed with accuracy and security, and meet the Cap Lottery deadline with confidence. Contact Us to set up a consultation.