Many employers hire foreign employees in speciality occupations through the H-1B Visa.
But, how exactly does the petition for the H-1B visa work? Read on to find out.
What is the H-1B visa?
The H-1B visa allows U.S. companies to temporarily hire foreign workers in speciality occupations, which are jobs that typically require higher education as well as specialized theoretical and practical knowledge and skills in a field. The most common fields in which employers use the H-1B program are tech, science, engineering, medicine, and business, but applicants include experts in all sorts of trades.
To obtain an H-1B visa, applicants must have a U.S. Bachelor’s degree or a higher degree from an accredited institution, or have an equivalent degree from another country, or have learned the necessary experience, knowledge, and skills from a speciality occupation equivalent to holding a degree.
As the largest guest worker visa program in the United States, there exists a congressionally mandated cap of 65,000 H-1B visas issued per fiscal year. This is often called a “regular cap.” For applicants who have earned a U.S. master’s degree or a higher degree, there exists an exemption which allows an additional 20,000 applicants to be admitted into the H-1B program. This is often referred to as the “advanced degree exemption.”
I’ve heard about a lottery associated with the H-1B visa. What is that about?
The lottery is an annual random selection process conducted by USCIS to determine which applications are accepted under the congressionally mandated cap of allotted visas per fiscal year.
In the 2016 application pool, USCIS received 199,000 H-1B petitions. USCIS used a computer-generated random selection system, also known as a lottery, to first randomly select petitions to fill the 20,000 cap under the advanced degree exemption. All unselected advanced degree petitions were then grouped together with the general category petitions. From this combined pool, the remaining petitions were chosen for the 65,000 cap under the general category provision. USCIS then rejected and returned the remaining, unselected petitions along with their filing fees.
How much does it cost to submit an H-1B visa application?
There is a $460 base filing fee for an H-1B petition. There is no fee waiver for this application. Certain additional fees may apply, depending on the type of employer organization and other factors. For example, USCIS requires employers to pay an extra $500 Fraud Prevention and Detection Fee when filing “initial” or “change of employer” petitions. These two fee payments must be submitted in separate checks. The $500 fee does not apply to H-1B “extension” petitions.
With all related fees, it costs, on average, approximately $3000 to file an H-1B petition. Hiring an immigration lawyer to help you file the form costs, on average, an additional $2000-3000. But by using SimpleCitizen for Business, you can cut your costs significantly while still getting the professional legal help you need.
Who must pay for the H-1B petition filing and legal fees?
Most fees are not legally required to be paid by the employee, or applicant. The employer cannot require that an employer pay for or reimburse the employer for most filing fees and any attorney fees for the H-1B visa. This means that the employer cannot engage in any agreement with the employee to pay back the cost, nor can the employer take the fee amount out of the employee’s pay. The employer must sign the application to state he or she will not seek reimbursement from the employee. However, employers may be able to require an employee to pay the fees for filing an application for their dependent spouse or child.
What is the process of applying for an H-1B visa?
The process of applying for an H-1B visa involves the following steps:
- You must obtain a job offer from a U.S. employee.
- Your employer must file your H-1B visa application with all required documentation, including a Labor Condition Application (LCA) and Form I-129, Petition for a Nonimmigrant Worker.
- As an employee, you cannot file your own H-1B visa petition. Only your employer, or your prospective employer who has extended to you a job offer, may file an H-1B petition on your behalf.
- Petitioners must mail the application to the appropriate USCIS-sanctioned service center. A list of service center addresses can be found here.
- For more information on the LCA, go to the Department of Labor’s Office of Foreign Labor Certification
USCIS will then select the H-1B petitions through the random selection lottery process until the caps have been met. If your case is approved, USCIS will send to your employer a Form I-797 Notice of Action, which simply states that your petition has been approved. Your employer will then forward the form to you. You do not need to fill anything out on Form I-797.
What documentation must my H-1B petition include?
There are many additional documents that must be submitted to complete the H-1B visa application. Listed below is the preferred order of documents in a submission:
- Form G-28 (if represented by an attorney or accredited representative)
- Form I-129, Petition for a Nonimmigrant Worker
- H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile-Singapore petitions)
- H-1B Data Collection and Filing Fee Exemption Supplement
- All supporting documentation to establish eligibility.
- Provide a table of contents for supporting documentation and separate the items as listed in the table.
- These types of documents include evidence of your educational background. This usually means a copy of the degree. However, if you have met all the requirements for a degree, but the degree has not yet been awarded, you may submit a copy of your final transcript or a letter from the registrar stating that you have completed all of the degree requirements. If your qualifications are based on both education and work experience, provide evidence for both your educational and work experience.
- English translations are required for documentation written in other languages.
- Arrival-Departure Record (Form I-94) if the beneficiary is in the United States
- SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
- SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
- Form I-566 if the beneficiary is a current A or G nonimmigrant
- Department of Labor certified LCA, Form ETA 9035
- Employer/attorney/representative letter(s)
- Other supporting documentation
- Copy of the petition, if necessary.
- Clearly mark it as “COPY” so that it is not mistaken for a duplicate filing. USCIS will reject any duplicate filings.
How should my employer and I properly submit the H1-B visa application?
It is important for you and your employer to correctly submit the H-1B application to ensure that USCIS does not reject it for missing information or other concerns. You and your employer must:
- Complete all sections of Form I-129.
- Make sure each form has an original signature.
- Include a signed check with the correct fee amount for each separate fee (USCIS does not allow combined-amount checks).
- Submit all required documentation and evidence with the petition when you file it.
- Make sure that the Labor Condition Application (LCA) properly corresponds to the position in your petition.
- File the petition with the correct USCIS service center. A list of service center addresses can be found here.
Does an approved H-1B visa automatically grant entry into the U.S.?
No, USCIS approval of your H-1B petition does not grant admission into the U.S. If your application is approved, you will have to attend an interview at a U.S. Consulate to get your H-1B visa stamped, which then means you are admitted entry into the U.S. During the interview, a Consular Officer will verify your education background, work experience, details of your U.S. employment, and any other relevant information. Upon successful completion of the interview, the Consular Officer will issue your H-1B visa.
What is the difference between H-1B approval and an H-1B visa?
Applicants who have been granted H-1B approval will be sent Form I-797, which confirms their H-1B status approval. This means that you are legally allowed to work for the company listed on the form. Once you have passed your U.S. Consulate interview, you will gain your H-1B visa. This visa acts a permit for you to enter the United States for a specific time limit. While you can hold multiple H-1B approvals from various companies, a visa can be stamped for only one company.
How long can I stay in the U.S. with an H-1B visa?
H-1B visas are usually valid for three years. USCIS can limit the duration of the visa according to the information your employer provides in the H-1B application. For example, if an employer cannot prove that the applicant is more likely than not needed for the full three year period, USCIS may issue the visa for less than three years. You may file to renew your H-1B visa for up to an additional three years.