The H-1B application process explained, step by step

The H-1B application process explained, step by step

An H-1B visa allows foreign nationals to work in the United States. But what is an H-1B visa, and who can apply for it? In this guide, you’ll find the answers to these questions, including a detailed explanation of the application process. 

What is an H-1B Visa?

An H-1B visa is a non-immigrant visa issued by the U.S. government that allows American employers to hire eligible foreign workers for specialty occupations.

Specialty occupations are those that require a minimum of a bachelor’s degree (or the foreign equivalent) or the equivalent of work experience. Additionally, specialty occupations are regarded as any position that requires highly specialized skills and/or knowledge in a specific field. Examples of specialty occupations include, but are not limited to:

• Accounting 

• Education

• Health and medicine

• Physical sciences

• Architecture

• Computing 

• Business specialties

• Technical writing

• The arts

• Law

• Research

• Education

In addition to holding a minimum of a bachelor’s degree or the equivalent work experience, if the occupation requires state licensure, the foreign worker must have the necessary license.

Foreign workers who are issued an H-1B visa status must continue working with their employer in order to maintain their H-1B status. 

Duration of stay

The duration of stay for an H-1B visa holder is three years. This duration is extendable for a maximum of six years; however, there are exceptions to the duration of stay. These exceptions include:

• If the foreign worker is in the process of applying for permanent residency and a Form I-140 (Petition for Immigrant Worker) has been filed but a decision has not yet been reached.

• If the foreign worker has applied for a green card and the application has been approved, but the final stage of completing the green card process has not begun because the priority date is not current. 

• For H-1B visa holders who are working on projects that are related to the United States Department of Defense, the duration of stay is 10 years. 

H-1B visa rights

H-1B visa holders are granted a number of rights under U.S. immigration law. These rights are as follows: 

• Work for an American-based employer in a discrimination-free environment 

• Receive equal pay to the pay that American counterpart workers receive 

• Receive equal benefits and rights to the benefits and rights that American counterpart workers receive

• Right to legal counsel from the employing company

• The right to own property 

• The right to travel freely, both domestically and internationally

• The right to stop working and seek work with another employer who can sustain an H-1B visa status.

• The right to seek an extension of an H-1B visa status

• The right to request an Adjustment of Status (apply for permanent residence or a green card)

The process of applying for an H-1B visa

To obtain an H-1B visa, a foreign national employee must first receive a job offer from an American-based employer. The employer must:

• have the need to fill a specialty occupation

• must be able to employ a foreign worker who fills that position

• must be able to prove that the employer could not secure a qualified American worker to fill the position.

Once a qualified foreign national receives an offer for employment from an American employer, the employer must initiate the process of applying for an H-1B visa.

Foreign workers may not apply for an H-1B visa on their own; their employers must petition for an H-1B visa on behalf of the foreign employee. The employer is referred to as the “petitioner” and the employee is referred to as the “beneficiary”. 

The process of applying for an H-1B visa is as follows.

Step one: The employer files a labor condition application

To begin, the American employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor for a Labor Certification (LC).

When applying for an LCA, the employer must confirm that they will comply with labor requirements (pay the foreign worker a fair and appropriate wage, provide the foreign worker with fair and appropriate benefits and provide the foreign worker with a discrimination-free work environment, for example).

Should the American employer violate the labor requirements set forth by the U.S. Department of Labor, they will be subject to fines and bars on sponsoring additional H-1B workers. Other sanctions may be taken against the employer, as well.

The American employer must first obtain a Labor Condition Application certification for H-1B visa workers. 

Step two: The employer files a petition for nonimmigrant worker

Once the employer receives a Labor Certification, they must file Form I-129 (Petition for Nonimmigrant Worker) with the U.S. Citizenship and Immigration Services (USCIS). The employer must fully and thoroughly complete this form and provide any necessary supporting documentation.

Examples of information Form I-129 requires include details that pertain to the non-immigrant worker’s credentials, home country and contact information. Additionally, the employer must provide information about themselves and the position that they will be hiring the foreign worker to fill.

When filing Form I-129, it must be accompanied by a Labor Condition Application Certification, as well as the filing fee for the Petition for Nonimmigrant Worker ($460).

Step three: The foreign employee obtains an H-1B visa

Once USCIS approves Form I-129, the foreign worker may start working for the H-1B employer on or after the start date indicated on the form. In this case, the Form I-129 will serve as the H-1B visa.

If the employee is already in the U.S. when Form I-129 is approved, they must obtain an H-1B visa if the foreign national intends on traveling abroad before the visa status has expired and would like to reenter the country.

If the foreign employee is not physical present in the U.S. when Form I-129 is approved, they must obtain an H-1B visa stamp at a U.S. port of entry. At the U.S port of entry, the nonimmigrant worker must present an approved Form I-129, a valid passport and any other supporting documentation. The official at the port of entry will place an H-1B visa stamp in the foreign worker’s passport and will issue them Form I-94 (Arrival/Departure Record).

What are the fees for an H-1B Visa? 

There are several fees associated with applying for an H-1B visa. Generally, the host employer will pay the fees on behalf of the foreign national employee; however, in some cases, the H-1B visa worker may be asked to pay a portion of the fees. Regardless, all fees must be paid by the petitioner (the employer), as the beneficiary (the employee) is not allowed to file the fees.

The fees for an H-1B visa are as follows: 

• A $300 basic filing fee

• An American Competitiveness and Workforce Improvement Act (ACWIA) training fee of $750 if the H-1B employer has less than 25 employees

• An ACWIA training fee of $1,150 if the H-1B employer has 25 or more employees

• A $4,000 Public Law fee if the H-1B employer has more than 50 employees and more than half of those employees are H-1B visa holders. 

• A $500 fraud prevention and detection fee

• A $1,225 premium processing fee, should the petitioner choose to use USCIS Premium Processing Services 

H-1B visa lottery

The U.S. issues 65,000 initial H-1B visas annually, although USCIS receives far more than are issued each year. To determine which applications will be approved, USCIS uses a lottery system.

Generally, the lottery season for the H-1B visa begins on April 1 for the following federal fiscal year, and employment authorizations are granted on October 1. Because of the six-month limit on pre-employment applications, the first weekday in the month of April is the earliest date that an H-1B visa applicant may legally apply for the following year’s allotment of the cap-subject visa.

The H-1B visa lottery is computer-generated and randomly selects H-1B visa applicants to approve. The lottery is the response to the large volume of applications that USCIS receives each year for H-1B visa applications (as noted, the number of applications that are filed each year far exceed the 65,000 cap on the amount of visas that are awarded). 

The lottery is broken down as follows:

• Foreign nationals who hold a master’s degree will have their application entered into the H-1B lottery pool first.

• Once the cap on the on the visa lottery pool is met, the rest of the master’s degree applicants that were not selected will be placed in the rest of the lottery pool and will undergo another random selection process. As such, master’s degree holders will have the opportunity to be entered into the H-1B visa lottery twice. The cap for master’s degree applicants is 20,000.

• Like the master’s pool, the applicants in the general pool are also subject to a random lottery. The lottery randomly selects visa applicants, including the remaining master’s degree applicants, as well as bachelor’s degree holders and foreign nationals who have work experience that is equivalent to a bachelor’s degree.

What if your application isn’t selected? 

If your application for an H-1B visa is not selected in the H-1B lottery pool, USCIS will return your petition. They will also return the filling fees that were submitted. The application can be resubmitted the following year.

If the application is resubmitted the following year, it will be entered into the lottery pool for that fiscal year; as such, there is no way to guarantee that an application will be selected.

What if USCIS requests additional evidence? 

If your application has been selected in the H-1B visa lottery, USCIS will review your application, including the supporting documentation. In some cases, USCIS may request additional evidence. Some of the reasons why a request for additional evidence may be made include:

• Validation Instrument for Business Enterprises (VIBE)

• To establish an employer-employee relationship

• For beneficiary qualifications

• To certify the needs of the petitioner for the services of the beneficiary

H-1B visa processing time

The amount of time it takes for an H-1B visa to be processed depends on several factors. Specifically, the manner in which the application was filed will impact the processing time.

If the petitioner uses premium processing services, USCIS will process the application and all of the requested documentation within 15 calendar days of receiving the application. If standard processing is used, it can take 1 to 4 months for an H-1B visa application to be processed.

To take advantage of premium processing services, the petitioner must file Form I-907 (Request for Premium Processing Services). A filing fee of $1,225 must be paid at the time of filing Form I-907. A request for premium processing may be made at the time of the H-1B visa application filing, or it may be filed after the H-1B visa application has been filed.

The primary benefit of using premium processing is the expedited timeframe for processing. However, do note that premium processing does not guarantee that an H-1B visa application will be selected in the visa lottery.

If the H-1B employer requests premium processing services and USCIS does not process the application within 15 calendar days of receiving the request, USCIS will return the processing fee and will continue the premium processing request for the H-1B visa application.

What is an H-1B visa application is denied? 

If an H-1B visa application is not approved, USCIS will issue a denial letter. This letter will be sent in the mail. If the application is denied, a new application can be completed and filed for the next fiscal year. A new application must be submitted if the foreign worker would like to reapply.

More from Nova Credit:

H-1B visa holders in the United States: An overview

The ultimate guide to the H1-B Visa

H-1B visa stamping: H-1B visa interview documents and more

How does the “Buy American and Hire American” Executive Order affect the H-1B visa?

How to check H-1B visa processing times

The H-1B extension checklist: What you should bring for H-1B renewals 

How to find out if you've been selected in the 2020 H-1B lottery

How to Find H-1B Sponsors in 2020

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