How does the H-1B Visa process work?

Do you have a University-level degree? Do you have a job offer in the United States for a job that requires a University degree? If so, you may be an excellent candidate for the H-1B Nonimmigrant Visa.

The H-1B Nonimmigrant Visa is a visa that allows individuals to work in what the law calls, “specialty occupations.” What this really means, is that if you have a job offer in the United States for a position that requires you to have a University degree or higher, and the employer normally requires that qualification for the position you are being offered, there is a really good chance that the position qualifies as a “specialty occupation” for purposes of the law. The official definition for these “speciality occupations” is: an occupation that requires theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor’s degree or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. Thus, if you meet the degree requirements (or have the right work and training experience instead of a degree), AND you have a job offer for a position in the field of your degree, then there is a good chance you can live and work in the U.S. with a successfully obtained H-1B Visa. It is not so simple, however. Unfortunately, there is quite a lot of work and expense that must go into petitioning for an H-1B Visa. Also, the process will differ a bit, depending on whether you are soliciting this visa from inside of the United States (on another valid nonimmigrant status), or whether you’re applying from your home country via the consular processing (embassy) route. Explaining these subtle differences between consular processing and change of status, is not the aim of this article, however. If you are in the United States already with a nonimmigrant status, after reading this article, please see our article, How do I change status to have an H-1B? For more information on the adjustment of status route. This article is only meant to serve as an introduction to the H-1B Visa, and hopefully shed some light on the most basic parts of the H-1B process for those that are interested. As always, obtaining an H-1B and other Immigration Benefits, is a very complex and nuanced process. This article is not a substitute for the advice of an experienced Immigration Attorney on this process, and the help of an attorney should be sought in order that the beneficiary has the best overall shot at successfully obtaining this visa. With that being said, let’s get into some of the basic information regarding the H-1B Visa.

H-1B Basics:

For better or for worse, the H-1B is kind of a lottery. The window for applying for an H-1B Visa opens on or around April 3rd each year, for the upcoming fiscal year, which starts on October 1st of the year preceding the calendar year; the year that gives its name to the fiscal year. Thus, the fiscal year for 2018 actually began on October 1st, 2017, and it will end on September 30th, 2018.Generally speaking, there are only 65,000 H-1B Visas available for each Fiscal Year (there are actually more which will be explained). Your employer has to apply for an H-1B Visa on your behalf, and they can only apply for an H-1B Visa, no more than 6 months before your employment start date. Thus, your employer can only submit your H-1B Application (Form I-129) on April 3rd, if you will start your position on October 1st, 2nd or 3rd; as a later start date won’t be permitted with an April 3rd filing date. Your employer will generally need to get your petition in as early as possible, in order for you to have the best shot at getting one of these spots, as there is quite a lot of competition. While there are only 65,000 general H-1B Visas available each fiscal year (and up to 6,800 of these are reserved for nationals of Chile and Singapore), there are additional H-1Bs that are “cap exempt” (not subject to the 65,000 limitation), available to those with the right qualifications. For one, the first 20,000 H-1B Visas filed on behalf of Beneficiaries (those the visa is for), who hold U.S. Master’s Degrees or higher, are exempt from this overall cap. Additionally, individuals who are going to be employed by universities (and other U.S. institutions of higher education), university affiliated or related nonprofit entities, nonprofit research organizations or government research organizations, are also exempt from the cap. Thus, if you are a professor or a researcher and you have a job offer by an entity in the class described, you will not have to worry about this 65,000 H-1B Visa Cap, and you can pretty much apply at any time. If you are not a cap exempt beneficiary, you and your future employer will really need to get your petition submitted as early on as possible, in the H-1B application season. Okay you may be thinking, great. I can search for a job in the United States and get a job offer, and then just have my future employer file my petition around April 3rd for an early October start date. Not so fast. Nothing with respect to U.S. Immigration is as easy as it seems. BEFORE ANY OF WHAT WE HAVE JUST DESCRIBED WITH APPLYING FOR YOUR H-1B CAN TAKE PLACE, YOUR EMPLOYER WILL NEED TO APPLY FOR AND RECEIVE, AN APPROVED UNITED STATES DEPARTMENT OF LABOR, LABOR CONDITION APPLICATION. The good news is that this is a relatively easy process and your employer can obtain a certified Labor Condition Application in about 7 days.

About the Department of Labor, Labor Condition Application:

This also unfortunately, cannot be filed more than 6 months before the intended start date for your position. Thus, one can only be so proactive with regards to filing an H-1B application. Your employer will need to obtain a Certified Labor Condition Application. To submit a Labor Condition Application (LCA), your employer can do so online on the U.S. Department of Labor’s “iCERT System.” The submission is free, and your employer will simply need to attest to a few things with respect to the conditions of employment, of you as the foreign worker, and their similarly situated U.S. workers. Basically, they will have to attest in filing the LCA, to the following: that they will pay the required wage to the foreign worker(s); that they will provide the foreign worker(s) working conditions that will not adversely affect the working conditions of similarly situated U.S. workers; that there is no strike, lockout, or work stoppage at the time of filling for the LCA, with regard to the position that the foreign worker(s) is being hired for; and that, they have provided notice to their U.S. workers that they intend to file a LCA and hire a nonimmigrant worker. Assuming the employer has proactively given notice to their U.S. workers (which can be accomplished in a number of easy ways), an employer can file an LCA and receive it back as “certified” from the Department of Labor IN AS LITTLE AS 7 DAYS.ONCE THE EMPLOYER HAS A CERTIFIED LABOR CONDITION APPLICATION, THE H-1B PETITION (which is in the form of an I-129 Petition for Nonimmigrant Worker), CAN THEN BE FILED. So the prudent thing to do, is to prepare the H-1B (I-129) and get everything ready for filing. Then your employer will submit the LCA at the earliest possible time with respect to the 6 month limitation (cannot submit the LCA more than 6 months before the start date of the position), and then they will file the H-1B immediately once the LCA comes back certified; around 7 days after its submission.

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So what happens if you get an H-1B Visa?

Well if you happen to obtain one of the 65,000 H-1B Visas, or one of the “Cap Exempt” ones, you should consider yourself very lucky. You will be granted an initial stay in the U.S. of up to three years. You can very often extend this to a total of six years, and you can sometimes (though harder to do), and depending on the circumstances, extend this status even longer. This potential years long ability to live and work in the United States, while clearly important to you as someone who wants that opportunity, isn’t even the best part of this visa. The best thing about having an H-1B Visa, is that it is one of the few nonimmigrant visas that allows its holder to pursue a Green Card/Permanent Residency while they hold a nonimmigrant status, without prejudice. It also provides a fairly easy pathway to obtaining this, should your employer chose, and be able to sponsor you for an EB-3 or an EB-2 Visa. These visas largely mimic the requirements of an H-1B (though are subjected to higher levels of scrutiny). Thus, having an employer file an Adjustment of Status Petition (I-485) on an H-1B holder’s behalf, in order to obtain a Green Card for these employees, is common practice in the United States. Thus, the H-1B can be a great place for a foreign national to begin their immigrant journey in the United States, should they have a job offer and be able to meet the H-1B requirements.

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