Work Visa to USA

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The H1B visa is one of the most popular business visas to the United States. Through this program thousands of foreign professionals are hired annually by US businesses. The main requirements for a foreign worker are a Bachelor’s degree from a college or university and an offer from a US employer for a “specialty occupation” position. The specialty occupation covers numerous types of jobs, including computer programmers, IT specialists, teachers, scientists, researchers, engineers, marketers, and many other positions.

Overview

Currently, there are 65,000 visas allocated to the H1B program with another 20,000 available to those who have graduate degrees issued from United States schools. Over the past, many years far more applications are submitted to the United States Citizenship and Immigration Service (USCIS) than are available visas. Consequently, a lottery is conducted after the initial wave of applications reaches USCIS. In most years only about one out of four applicants are chosen by the lottery to be considered for a visa.

The most complicated part of the program is whether the position offered by the employer qualifies as a specialty occupation. The following is the description provided by USCIS:

The occupation requires:

  • Theoretical and practical application of a body of highly specialized knowledge; and
  • Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The position must also meet one of the following criteria to qualify as a specialty occupation:

 

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
  • The employer normally requires a degree or its equivalent for the position
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Some positions clearly meet these requirements such as electrical engineers, medical doctors, and computer programmers. For others, it is not as clear-cut. For example, beginning in 2019 USCIS regularly was denying H1B petitions for market research analysts, claiming that the entry position for a market research analyst did not meet the requirements of a specialty occupation. A class-action lawsuit was filed in US federal court over these denials. In October 2021, a settlement agreement was reached between USCIS and many of the affected market research analysts, essentially approving most of these applications. Most importantly, an employer must prove to USCIS that the offered position meets the requirements of a specialty occupation.

The maximum length of an H1B visa is three years. It can be renewed for another three years, and in certain cases, can be extended for an additional year where the worker has received an approved employer-sponsored immigrant petition. One of the benefits of the H1B visa is it is considered a dual intent visa. Most non-immigrant visas will not be granted if the applicant indicates an intention to immigrate or receive a green card to the United States. That’s not the case with the H1B. In fact, many employers will file green card applications for H1B visa holders, and even while a green card application may be pending, an H1B visa holder may apply for a new H1B visa if the original one has expired. The downside of the H1B program is that while spouses receive an H-4 visa, allowing them to remain in the US during the validity of the H1B visa, in most cases, the spouses are not authorized to work.

H1B Application Process

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The application process for the H1B visa has changed over the years. In the past two years during the month of March, employers register potential H1B applicants with an online USCIS tool. The employer must establish their own USCIS account with the name and address of the company and the name, address, and contact information of an authorized officer of the company. Then, the company must register the name and personal details of the H1B applicant and whether the applicant has a US graduate degree. Towards the end of March USCIS submits all the applicants into a random lottery because the number of applicants exceeds the number of available visas. Those that are selected are notified at the end of March. The employer of the selected candidates has ninety days to file with USCIS an H1B visa petition on behalf of the selected applicant.

There are multiple steps in the application process. First, the employer must determine the prevailing wage of the position. The law requires that an H1B visa holder receive the prevailing wage of that position in the local area. Usually, that information can be found online by going to the Foreign Labor Certification Data Center, https://www.flcdatacenter.com/. Second, the employer must post information about the H1B position at the employer’s office, electronic bulletin board, or through email contact to all employees located at that office. The posting must include information about the position, the salary, the period of employment, and a statement about contacting the Department of Labor if there is a misrepresentation of facts. Third, the employer must file a Labor Condition Application (LCA) with the Department of Labor through the online Foreign Labor Application Gateway, https://flag.dol.gov/. The LCA includes information about the employer, the position, the period of employment, and the salary. Usually, the Department of Labor certifies the LCA about a week after the filing.

Following the receipt of the certified LCA, the employer can prepare the petition for the H1B visa. As noted previously, in most cases the H1B applicant must have a Bachelor’s degree. Most applicants will have degrees from foreign nations. USCIS will not recognize those degrees unless they have been approved by a US educational credential service as being equivalent to a US degree. There are multiple such services in the US. Normally, the credential service will require copies of the applicant’s diploma and school transcripts, accompanied by a translation into English. Fees for the service will vary. Normally, the credential service will assess the equivalency of the foreign degree within about a week.

Once the LCA is approved and the foreign worker’s degree receives an approved educational credentials certificate, the employer can prepare the filling. The main form for filing an H1B petition is the Petition for a Non-Immigrant Worker (I-129), the typical form for filing for most non-immigrant visas. The form itself is pretty straightforward. It asks for information about the employer and the prospective employee. However, the I-129 form typically is accompanied by a supplemental form, designated for that particular visa. In H1B cases there exists an H Classification Supplement. The supplement asks for more information about the applicant and his/her proposed duties. In addition, previous stays in the US in either H or L visa status must be listed since there is a limit on the amount of time one can be in those statuses in the US.

Additionally, the H1B application requires another form, “H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement.” This form is more complicated. It asks whether the employer is H1B dependent, meaning that a majority of the company’s employees are H1B visa holders. It also asks about the number of the company’s employees, what type of degree the applicant holds, and information about the type of business the company is involved in. Answers to these questions dictate the number of fees to be paid by the employer and whether the applicant is subject to the cap on the number of visas available for the year.

As was mentioned previously, there is a limit on the number of H1B visas issued each year. However, certain institutions filing for H1B applicants are exempt from the cap such as governments, non-profits, and educational institutions. In addition, the limit on visas does not apply to someone filing for an extension of an H-1B.
With the requisite forms as described above, the employer must provide several other things in the filing:

1) an extensive letter of offer, explaining how the position meets the specialty occupation requirements of the H1B visa and how the applicant is qualified for the position and the visa;

2) applicant’s diplomas and transcripts with translations;

3) educational credential service certificate;

4) applicant’s bio;

5) applicant’s passport;

6) evidence of the employer’s ability to pay the wage, e.g. the most recent corporate tax return.

Accompanying the H1B petition are the requisite fees. Determining the right amount can be complicated. The following is a table of fees:
Basic filing fee: $460
Premium Processing fee: $2500. This guarantees the case will be decided within approximately two weeks of filing.

Additional Fees for H Nonimmigrant Petitions: 

Who PaysReason for FeeFee AmountAdditional Information
Certain H-1B or H-1B1 petitioners with more than 25 employees (count your full-time equivalent employees in the United States, including those at any U.S. affiliates or subsidiaries) (see details and exceptions below)American Competitiveness and Workforce Improvement Act of 1998 (PDF) (ACWIA)$1,500
Fee may be included in the same check or money order with the base petition fee; however, a separate payment is preferred
The beneficiary is not permitted to pay the ACWIA fee. That would be considered an offset against wages and/or benefits paid as stated on the Labor Condition Application
The H-1B Visa Reform Act of 2004 (part of Pub. L. 108-447 (PDF)) permanently extended and increased the ACWIA fee
Certain H-1B or H-1B-1 petitioners with 25 or fewer employees (count your full-time equivalent employees in the United States, including those at any U.S. affiliates or subsidiaries) (see details and exceptions below)ACWIA (PDF)$750
Fee may be included in the same check or money order with the base petition fee; however, a separate payment is preferred
The beneficiary is not permitted to pay the ACWIA fee. That would be considered an offset against wages and/or benefits paid as stated on the Labor Condition Application
The L-1 Visa and H-1B Visa Reform Act of 2004 (PDF)( part of Pub. L. 108-447 (PDF)) permanently extended the ACWIA fee
Employers seeking initial H-1B nonimmigrant status for a foreign worker
or
Employers seeking approval for a foreign worker already in H-1B nonimmigrant status to change employers, including petitions requesting new concurrent employment (with exceptions below)
Fraud Prevention and Detection Fee$500
Fee should be submitted in a separate check or money order
The L-1 Visa and H-1B Visa Reform Act of 2004 (PDF) (part of Pub. L. 108-447 (PDF))
H-1B petitioners that employ 50 or more employees in the United States if more than 50 percent of these employees are in H-1B, L-1A or L-1B nonimmigrant status (with exceptions below)Pub. L. 114-113$4,000
Fees should be submitted in a separate check or money order
Signed into law Dec. 18, 2015, and is valid until Sept. 30, 2027. The fee is applicable for petitions filed on or after Dec. 18, 2015.

Once the case is filed with USCIS, if the case was filed with premium processing, the employer should get an answer within about two weeks. Often, premium processing cases receive Requests for More Evidence (RFE). If an employer receives this request, they usually are given a few months to provide additional information. Typically, USCIS challenges whether the position is a specialty occupation under the law and whether the applicant has the requisite education for the occupation. Regardless, the RFE must be reviewed carefully, and the employer must seek to respond to every point USCIS found lacking in the case. If the case was not filed utilizing premium processing, then it will take several months to receive an answer from USCIS.
Once the case is approved, assuming the applicant is overseas, he/she must apply for an actual H1B visa at a local US embassy. The first step is the applicant must file the DS-160 non-immigrant visa application online at https://ceac.state.gov/genniv/. The application requests a lot of personal information. It’s essentially the same application for one filing for a tourist visa. After filing the application, the applicant files a request for an interview at a local US embassy online at https://ais.usvisa-info.com/en-us/countries_list/niv. Again, they fill out personal information, pay the visa fee and schedule the appointment. Note that initial H1B visas normally are only available beginning October 1 of the year in which the petition was filed. Usually, H1B visa interviews are proforma. Since the case is already approved in the US, unless the embassy finds a security issue with the applicant, the visa will be approved at the interview. The applicant leaves their passport at the embassy, and it is delivered to the applicant several days later.

Extensions or Change of Employers

The initial H1B visa is good for up to three years. Prior to the expiration of the visa, the employer must file an extension for the employee. Please note that H1B visa applications, including extensions, are filed by the employer, not the employee. When filing for an extension, it’s very important to note on the H Supplement form of the Petition for Non-Immigrant (I-129), the dates the employee was actually in the US in H1B status. While the maximum period of stay in H1B status is six years (seven in limited situations), the amount of time physically in the US is critical information. For example, an employee may have been approved for an H1B visa on October 1, 2015, but did not enter the US until January 1, 2016. The initial visa expired on September 30, 2018, and a three-year extension was applied for and approved. The second visa expired on September 30, 2021. During the year period of 2016-2021, the employee was outside of the US for five months. While the employee had an H1B for six years, they were not physically present in the US for six years. Because the employee did not initially enter the US until January 1, 2016, and was outside of the US for five more months during his H1B status, the employee is eligible for another extension of eight months to complete the full six years of presence in the US in H1B status.

Another benefit for an extension of an H1B is that the person is not subject to the limit on the number of H1B visas. Therefore, the employer does not need to register the employee a second time, as was described earlier. There is no lottery for the employee. However, the employer must follow the other procedures outlined above, including listing a job posting at the place of business, filing for a new Labor Condition Application, and filing a new petition with the required documentation. The employer must also include W-2 forms of the employee, recent pay stubs, a copy of the employee’s H1B visa and entry into the US, and a copy of the employee’s I-94 card. The I-94 card is the official record of the employee’s status in the US. This card can be obtained online at https://i94.cbp.dhs.gov/I94/#/home.
One of the bigger benefits of the H1B visa is the flexibility of changing employers. The employee does not need to wait for an H1B approval to change employers when in H1B status. In other words, assume Employee received an H1B visa through Company A and has worked for the company for one year. The employee is recruited to work for Company B. As long as Company B applies for a change of employer through an H1B petition, the Employee can begin working for Company B once USCIS receives the new petition. The only drawback is if the new petition ultimately is denied for some reason, then Employee will need to depart the US. When the employee departs the US, whether they received an extension or changed employers, they must apply for a new visa at a local US embassy.

Conclusion

As can be seen from the previous discussion, the H1B process for employers and employees is complex. Failing to register in a timely fashion or with wrong information can doom one’s application even before getting started. The time deadlines to file are very strict. As was noted previously, if an applicant is selected during the registration period, the employer has only ninety days to file the petition for the employee, accompanied by the Labor Condition Application, the education credentials certificate, and the other documentation previously listed. If the case is not received within the ninety-day period, then the applicant’s selection will be transferred to another person. What is even more complex is a Request for More Evidence from USCIS on a particular case. Cohen and Brosh Law Offices have many years of experience in successfully filing H1B cases. Contact us now to begin the process.

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