OVERVIEW OF THE H-1B VISA APPLICATION PROCESS

H-1B VISA: INDIVIDUALS WORKING IN A SPECIALTY OCCUPATION

⚖️ ELIGIBILITY CRITERIA

H-1B Visa requirements:

➡️ The recipient must have completed a four-year bachelor’s degree in a field of study related to the position;

➡️ The industry standard for education requirements associated with the position must include a bachelor’s degree;

➡️ If the recipient received his or her degree overseas or did not complete a four-year bachelor’s degree, an education evaluation must be conducted;

➡️ The salary for the position must meet current requirements for minimum wage;

➡️ If the employee will be working off-site, additional proof of employment may be needed;

📑 SUPPORTING DOCUMENTS 

H-1B VISA: APPLICATION PROCESS

Those who meet the criteria for one of the three main types of H-1B visas must follow a three-step process when applying, which includes actions taken by the employer. H-1B visas, which are nonimmigrant employment visas set aside for foreign workers with special skills or working in specialized fields, are valid for six years and spouses of H-1B visa holders may enter the U.S. on H-4B visas.

H1B Premium Processing is a faster method to obtain an H1B visa. However, the US Government does charge an extra fee of $1,225 for Premium Processing (to expedite the application processing in as little as 15 days). Regular Processing is a more cost-effective method but it takes longer. There is no set timeframe for a visa to be processed by the USCIS when filed through Regular Processing (it can take anywhere from 1 month to 6 months)

1️⃣ Employer files Labor Condition Application (LCA).

Employers must get a certification of a Labor Condition Application for H-1B (specialty workers) and H-1B3 (fashion models) applicants. This does not apply to H-1B2 (Dept. of Defense Research and Development workers) applications. For more information about this requirement, see the DOL’s Hiring Foreign Workers. 

In the Labor Condition Application, the employer must promise to comply with certain labor requirements. The labor condition requirements are as follows:

• The U.S. company will pay the H-1B holder a wage that is equal to the wage paid to similarly qualified workers or, if greater, the standard wage paid for the position in the corresponding geographical location.
• The employer will provide working conditions that will not adversely affect existing, similarly employed workers. There must be no strike or lockout at the time of the application and a notice of the application with the DOL must be provided to the union representative (if applicable) or posted at the business location.

When the LCA is approved, the Department of Labor (DOL) will return a certified copy to the H1B sponsoring company.

2️⃣ Employer files Petition for Nonimmigrant Worker (Form I-129) to U.S. Citizenship and Immigration Services (USCIS)
Form I-129 (PDF), the Petition for a Nonimmigrant Worker, must be completed by the employer and submitted to the proper USCIS Service Center. The employer must also submit a DOL-certified Labor Condition Application (explained above) with this form. To be accepted, the application must be accompanied by all of the required fees, documents and information, education and experience evaluation and related documents, training certificates, professional memberships, resume, employment agreement, and letter of support.

Processing times vary depending upon service center and the visa. It could take a few months. If the H1B employer can demonstrate that there is a substantial need for the employee, USCIS may approve the petition sooner. Employment cannot begin, however, until USCIS has issued the appropriate visa.

Receipt issued by USCIS: The petitioner (sponsoring company) will get a receipt from the USCIS Service Center which includes a nine digit reference number pertaining only to that particular case. It will also include information about  H1B processing times and general information pertaining to the petitioner and foreign worker. This is the petitioner’s first confirmation that the petition is awaiting adjudication.

The prospective employer then issues a letter to the applicant advising him/her of this receipt and providing information on processing times and so forth. The notice should warn him or her not to resign from current employment, sell accommodation or make any major life changes until he or she is advised  that the H1B visa petition has been approved

Petition Approval. Generally a case will be approved within or on the designated time frame outlined in the USCIS receipt. An approval notice (Form I-797) is then sent to the petitioner. The Form I-797 shows dates during which for the recipient can work in H1B status for the petitioner.

3️⃣ Prospective worker (outside the U.S.) applies for visa/admission 

After Form I-129 submitted by the employer is approved (along with the Labor Condition Application), the prospective foreign worker outside the U.S. must apply for an H-1B visa (if required) and/or entry at a U.S. embassy or consulate. Irrespective of the visa requirement, all prospective H-1B workers must apply for entry into the U.S. in the H-1B classification with USCIS.

H-1B2 VISA: DEPT. OF DEFENSE RESEARCH AND DEVELOPMENT WORKER

To be defined as a DOD cooperative R&D project, it must be related to an inter-government agreement handled by the DOD and associated educational requirements must include a bachelor’s degree or its equivalent.

Applicants for H-1B2 visas must meet one of the following criteria to be eligible:

• Have a U.S. bachelor’s degree or its equivalent as required for the job
• Have a foreign degree equivalent to a U.S. bachelor’s degree or its equivalent as required for the job
• Hold a registration, certification, or unrestricted state license authorizing the full practice of the job (and be engaged in that occupation)
• Have expertise in the field through related positions and have training, education, or experience in the specialty

H-1B3 VISA: FASHION MODEL

To qualify for an H-1B3 visa,  a prominent fashion model must be needed for the job and the applicant must be a fashion model with exceptional or outstanding merit and ability.