Visa Lawyer Blog

The H-1B Guide: Preparing for H-1B Season

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What is the H-1B Visa? The H-1B visa is a work visa that is awarded on a lottery basis. The H-1B visa program allows American companies and/or qualifying organizations to employ foreign workers to fill specialty occupations temporarily. The foreign worker must posses a combination of education, specialized training, and/or experience that is equivalent to training acquired by the attainment of a U.S. bachelor’s or higher. The H-1B program was first enacted by Congress with the intention of helping American employers seek out distinguished foreign workers, possessing the skills and abilities necessary to perform the duties of the specialty occupation. The H-1B program has remained popular because it has allowed American employers to remain competitive and provides highly skilled foreign workers a path to permanent residence.

The provisions of the H-1B visa program allow qualified foreign workers to attain temporary employment having met specific requirements. H-1B visa recipients typically work in the STEM fields as scientists, engineers, computer programmers, software developers, business analysts, etc. although fashion models are also classified under the H-1B category.

USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2017 beginning April 1, 2016. April 7, 2016 is the absolute deadline to file an H-1B cap-subject petition. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

In order to qualify for an H-1B visa:

  • a foreign worker must possess both a theoretical or practical application of a body of highly specialized knowledge;
  • an employer-employee relationship must exist. Only a U.S. employer can petition the entry of a foreign employee by filing USCIS Form I-129 Petition for Non-immigrant Worker. An employer-employee relationship exists if the U.S. employer has the right to hire, pay, fire, supervise or control the work of the employee;
  • the foreign worker must possess a bachelor’s degree, its foreign equivalent, or relevant work experience. If the foreign worker does not have formal education, but has at least 12 years of relevant work experience related to the specialty occupation, they may still qualify for an H-1B visa;
  • the foreign worker must be employed in a specialty occupation related to their field of study. A specialty occupation is an occupation that requires a bachelor’s degree or its equivalent;
  • the foreign worker must be paid at least the prevailing wage for the specialty occupation in the area of intended employment;

Why does the lottery system exist?

The lottery system for the H-1B visa program was implemented due to the limited number of H-1B visas available for issuance. By law, a congressionally mandated cap exists which limits the issuance of H-1B visas to 65,000 per year. That is why the H-1B visa is commonly referred to as a ‘lottery’ visa.

Individuals (such as F-1 students) who hold advanced degrees (U.S. master’s or higher) are exempted from the 65,000 visa cap. Such applicant’s must demonstrate that they have obtained an American master’s degree or higher to be exempted from the cap, however only the first 20,000 petitions received by USCIS will benefit from this cap exemption. Initial H-1B petitions that are received by USCIS after that limit will count towards the regular 65,000 cap.

Additionally, certain foreign workers are exempted from the 65,000 visa cap including foreign workers who have been offered a job under the U.S. Chile or U.S. Singapore free trade agreements. For these individuals 6,800 visas are set aside. Foreign workers in the Commonwealth of the Northern Mariana Islands and Guam are also cap-exempt according to the Consolidated Natural Resource Act of 2008 (CNRA).

Academic and/or Work Experience Evaluations

Due to increasing demand for the H-1B visa and the complexity of the H-1B visa application process, we recommend that employers and their foreign workers consult with a licensed attorney and prepare their documents well in advance. If the foreign worker received their education abroad, the foreign worker is required to obtain an academic evaluation from an accredited credential evaluation service, in order to determine whether the applicant’s degree is equivalent to a U.S. bachelor’s degree. If the foreign worker possesses qualifying work experience, a work experience evaluation will also be necessary to determine academic equivalence. Evaluating an applicant’s degree and/or work experience takes time. Often evaluators require the applicant to obtain their original transcripts and original diploma from the foreign institution. Work experience evaluators also require recommendation letters from past employers. Evaluators may need several weeks from the date these materials are provided to adequately complete an evaluation. It is very important for employers and foreign workers to prepare these documents ahead of time, in order to expedite the application process.

Filing the Labor Condition Application in Advance

Additionally, the H-1B visa also requires the employer to register their FEIN number with the Department of Labor prior to submission of the Labor Condition Application (LCA) with the Department of Labor (DOL). If the employer has previously petitioned a foreign worker for an H-1B visa, the FEIN does not need to be registered with the DOL. After the employer has registered the FEIN with the DOL, the employer must submit a LCA for each H-1B employee with the DOL for certification. It takes approximately 2 weeks for the DOL to send the certified LCA to the employer for signature. The certified LCA must be signed by the employer and be included with the employer’s I-129 petition for nonimmigrant worker and other forms. If the employer anticipates that the employee’s place of employment may change, the employer should file the LCA for each potential place of employment to ensure that the employer is covered under the law, in case of any changes. The employer should also be careful to verify the prevailing wage if the place of employment will change. The LCA is important because it requires the employer to attest to the terms of the employment including: the employee’s occupation, the wage the employee will be paid, dates of the employee’s intended employment, the place the employee will be working, etc. This prevents the employer from violating the terms of the agreement by holding the employer accountable. If in doubt, the employer should not file the LCA on their own. Typically, the attorney will do this on behalf of the employer.

Preparing Your Application 

The most significant way in which the employer and foreign worker can adequately prepare is to understand what documents must be included in the H-1B petition. That way, the documentation necessary can be prepared ahead of time and there will be no surprises.

NOTE: All H-1B petitions require that a duplicate copy be included, in addition to the original bundle of documents. Failure to include a duplicate copy may render a rejection notice. It is recommended that petitioner’s keep a duplicate scan and copy of the entire H-1B petition mailed to USCIS for their records. The foreign worker will need a copy of the H-1B petition for visa issuance at a US Consulate abroad, if approved. 

Below you will find a running checklist of supporting documents that are typically included in a cap subject petition:  

NOTE: Necessary documents will vary on a case-by-case basis especially for entrepreneur H-1B petitions. This list is not all inclusive and specific details pertaining to your application should be discussed with a licensed attorney in detail. Additional documents may be necessary depending on your specific case.

  • Signed and Certified Form ETA-9035, Labor Condition Attestation (LCA), with the Department of Labor;

Note: Documentation including the certified LCA should be filed with the USCIS Service Center having jurisdiction over the state of intended employment.

  • Signed and completed Form I-129 Data Collection Supplement;
  • Signed Petitioner Letter of Support on Company Letterhead;
  • Prevailing wage information from the OFLC;
  1. Beneficiary’s Passport ID page (copy) and copies of U.S. Visa ID pages (if applicable);
  2. Beneficiary’s I-20’s if on an F-1 visa;
  3. Beneficiary’s DS-2019’s if on a J-1 visa;
  4. I-94 Arrival/Departure record (if Beneficiary is in the United States on a visa)
  5. Beneficiary’s Visa Stamp;
  • 1-5 same as above for dependents along with copies of the marriage certificate (for spouses) and birth certificates with translations;
  • Beneficiary’s degree, transcripts, with English translations, and an educational evaluation if the degree is foreign (copies);
  • Beneficiary’s resume;
  • Evidence of work experience such as resume, verification of current and past employment, expert opinion letters and letters from Beneficiary’s previous employers demonstrating that the Beneficiary has experience directly related to the specialty occupation;
  • Any required license or other official permission to practice the occupation in the state of intended employment (copy);
  • Copies of materials on the Company’s business (IRS letter containing FEIN, Secretary of State Registration, Income Tax Returns and Evidence of Financial Position, Brochures, Website printouts, information on the products or services offered);
  • If the company is a startup: Copies of Articles of Incorporation, Bylaws, Organization/Incorporation Minutes, Statement of Information, Bank Statements, Business Plans (if applicable);

NOTE: Petitioners must submit all form fees by company check or a money order that is drawn on a bank or other institution located in the United States and payable in U.S. currency. The check or money order must be addressed to the “Department of Homeland Security.” Click here for the list of fees for each form.

Direct filing addresses depend on the state where the worker will be employed. Click here for the direct filing addresses.

Visa Issuance for Consular Processing

Individuals residing outside of the country must obtain their H-1B visa at a U.S. consular post abroad. If the applicant’s petition is approved, the employer or agent will be sent an approval notice known as Form I-797 and a copy of the approval notice will be forwarded to the American Consulate abroad. The applicant will then need to schedule a nonimmigrant visa interview on the Department of State website, pay applicable visa fees, and prepare supporting documentation for the interview. All adult applicants (including dependents) are required to attend the visa interview for visa issuance. Dependent minors do not need to be present, however their supporting documentation should be provided at the time of the interview. Each applicant applying for issuance of an H-1B visa at a Consular post abroad will need to provide the following during their interview:

  • DS-160 Confirmation page with barcode;
  • 2 American style passport photographs measuring 2” by 2”;
  • Original I-129 Approval Notices for H-1B visa;
  • Original Passport;
  • Original U.S. Visa’s with I-94, I-20’s, DS-2019’s, EAD cards (if applicable);
  • Original or Certified Copy of the Marriage Certificate (for spouses seeking H-4 status)
  • Originals or Certified Copies of each family member’s Birth Certificates (for dependent minors seeking H-4 status);
  • Originals or Certified Copies of any Marriage Termination Documentation (Final Divorce Decrees);
  • Employment letter from H-1B petitioner stating that your employer is still on board to provide you the proposed employment and pay at least the prevailing wages;
  • Duplicate copy of the H-1B package sent to USCIS;

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