The H-1B visa is one of the most sought-after non-immigrant visas in the United States, particularly for professionals looking to work in specialized fields. Whether you’re a potential applicant or an employer seeking to hire foreign talent, understanding the basics of the H-1B visa process is crucial.
What is the H-1B Visa?
The H-1B visa allows U.S. employers to hire foreign nationals for positions requiring specialized knowledge. These roles often require a bachelor’s degree or higher in a specific field of study, such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. The visa is initially granted for up to three years and can be extended for up to six years in total.
Eligibility Criteria for the H-1B Visa
To qualify for an H-1B visa, both the employer and the employee must meet certain criteria:
- Job Position Requirements:
- The position must require a minimum of a bachelor’s degree or higher in a specialized field.
- The job must be a specialty occupation, meaning it involves tasks that require specialized knowledge.
- Employee Requirements:
- The foreign worker must hold at least a bachelor’s degree or its equivalent in a related field.
- The applicant must demonstrate expertise and qualification in the specialty occupation.
- Employer Requirements:
- The employer must prove they are hiring for a role that fits the criteria of a specialty occupation.
- They must file a Labor Condition Application (LCA) with the Department of Labor, agreeing to pay the prevailing wage and ensuring proper working conditions for the foreign worker.
The H-1B Cap and Lottery System
Each fiscal year, the U.S. Citizenship and Immigration Services (USCIS) imposes a cap on the number of new H-1B visas issued. Currently, the cap is set at 65,000 visas for the general category, with an additional 20,000 visas reserved for applicants holding a U.S. master’s degree or higher. Due to the high demand for H-1B visas, the USCIS uses a random lottery system to select petitions.
How the Lottery System Works:
- Registration Process: The H-1B lottery begins with an electronic registration process. U.S. employers must first submit an online registration for each prospective H-1B employee during the designated registration period, typically in March. The registration requires basic information about the employer and the employee, and a fee of $215.
- Lottery Selection: After the registration period closes, the USCIS conducts random lottery and selects 65,000 registrations from all submitted applications and an additional 20,000 registrations from applicants with a U.S. master’s degree or higher
- Notification of Selection: Employers whose registrations are selected in the lottery will receive notification from the USCIS and will be invited to file a full H-1B petition (Form I-129) on behalf of their employee. This step must be completed within the filing window specified by the USCIS.
- Unselected Registrations: If a registration is not selected, it will remain in the system for potential future selection if the H-1B cap is not met.
Key Dates and Timeline:
- March: The H-1B electronic registration period typically opens for employers to submit registrations.
- March-April: The USCIS conducts the lottery and notifies selected employers.
- April 1: The earliest date employers can file full H-1B petitions with USCIS.
- October 1: The start date for the new fiscal year, when H-1B employees may begin working in the U.S. if their petition is approved.
Applicable Fees for H-1B Visa
- Basic Filing Fee: The basic filing fee for Form I-129 (Petition for Nonimmigrant Worker) is:
- $460 if the employer has 25 or fewer employees.
- $780 if the employer has 26 or more employees. $730 if filing online.
- Fraud Prevention and Detection Fee: A one-time fee of $500 applies to all new H-1B petitions and first-time transfers between employers.
- ACWIA Fee: The American Competitiveness and Workforce Improvement Act (ACWIA) fee is either:
- $750 if the employer has 25 or fewer employees.
- $1,500 if the employer has 26 or more employees.
- Asylum Program Fee: USCIS created this new fee to support the US asylum system and enhance efficiency.
- $600 if filing as a regular petitioner.
- $0 if filing as a nonprofit organization.
- $300 if filing as a small employer (25 or fewer employees).
- Public Law 114-113 Fee: Employers with more than 50 employees, where more than 50% of the workforce holds H-1B or L-1 visas, must pay an additional $4,000 for each new H-1B petition.
- Premium Processing Fee (Optional): Premium processing allows for faster review of H-1B petitions, with decisions guaranteed within 15 calendar days. The premium processing fee is $2,805.
The H-1B fees are required to be paid by the employer, and the responsibility for paying them cannot be shifted to the employee, except for Premium Processing Fee.
Employer Compliance and Responsibilities
Employers must adhere to specific obligations when hiring H-1B workers:
- Wages and Working Conditions: Employers must ensure they are offering the prevailing wage for the role and providing the same working conditions as to U.S. workers.
- Public Access Files: Employers must maintain public access files with details of the LCA and wages paid to the H-1B employee.
- Notification Requirements: Employers must notify U.S. workers about the hiring of H-1B employees and ensure no displacement of U.S. workers in similar roles.
Conclusion
The H-1B visa plays a critical role in enabling U.S. companies to access skilled talent from around the world. Whether you’re an employer looking to hire, or an employee seeking an opportunity, understanding the requirements and process involved in securing an H-1B visa is essential. By staying informed and ensuring compliance with regulations, both employers and employees can benefit from the opportunities the H-1B visa offers.
For more information or assistance with your H-1B visa application, feel free to contact our experienced immigration specialists at Law Office of Dharmik Barot. We’re here to guide you through every step of the process.