Guide to H1B Visa Requirements and Application by an Immigration Lawyer

If you are a specialist in some field and just got a job offer to work in the U.S., you will need an H1B visa to be allowed to start your job in this country. Your employer will need to apply for this type of non-immigrant visa on your behalf. In what follows, the H1B visa requirements and application are fully discussed to help you get your dream job in the land of opportunity.

H1B Visa in Simple Terms

Foreigners cannot simply come to the U.S. and take up a job. They need to have a kind of working permission. The H1B visa is a non-immigrant visa for non-American workers that allow them to work in this country. According to the U.S. Department of Labor (DOL), by this program, companies and employers that could not find their expected qualities among Americans or legal immigrants, can hire qualified specialists from overseas for specialty occupations. As the H1B visa process takes less time than a Green Card, it is a faster way to acquire working permissions. Employers submit the petition for this kind of visa for their potential employee. Since the company is sponsoring the foreign specialist, the H1B visa is sometimes called Person in Specialty Occupation Visa. Specialty occupations means any job that requires highly skilled and qualified people with technical and/or theoretical knowledge. This means jobs in science, medicine, engineering, and other specialized fields.

H1B Visa Requirements and Eligibility

Both the job and the applicant must meet some criteria to be eligible for an H1B visa. Otherwise, you need to consider other visa types. An experienced immigration attorney can help you in these situations. Call us at (714) 877-5840 for a free consultation with an H1B visa lawyer.

H1B Visa Requirements for the Applicant

If you have a job offer, and you wish to get an H1B visa for that, you should meet all the requirements below to be qualified for one.

• The position must be an H1B eligible job (more on it in the next section).
• You need to hold at least a bachelors degree (or an equivalent) which is directly related to the position.
• Your foreign degree must be equivalent to at least a U.S. bachelors degree.

H1B Eligible Jobs

The job offer you receive must be a specialty occupation and have the following specifications to be eligible as an H1B job.

• The lowest degree it requires must be a bachelors degree (or an equivalent).
• It must require complex technical and/or theoretical knowledge that can only be done by a specialist.
• The employer cannot find a qualified American for the job. According to USCIS (U.S. Citizenship and Immigration Services), some common cases of specialty workers that have been approved in recent years for the H1B visa include accountants and auditors, chemists, biologists, architects, teachers, etc.

H1B Visa Process Guide and Application

You, as an employee, do not file for an H1B visa personally. This is something your employer must do on your behalf with USCIS. If it is selected, then you need to start applying for the visa and request a visa interview. There are fees to pay, forms to fill out, and documents to prepare. Read on this H1B visa process guide to fully understand what needs to be done step by step.

Step 1: Registering for an H1B Visa

• The employer needs to file for an H1B visa registration with USCIS electronically during the registration window. This window usually lasts for two weeks in March. The registration fee must be paid for each employee that is being registered.
• As the number of petitions is usually more than the annual H1B visa cap, after the registration period is over, there is a lottery. Some registrations are selected randomly by a computer. Only these can file for the H1B cap-subject. The H1B visa cap for fiscal year (FY) 2023 is 65,000 for the regular cap, and 20,000 for the so-called Master's cap (those with an advanced degree from U.S. universities.), while the number of petitions registered in March 2022 for 2023 FY was roughly 484,000.

Step 2: Filing an H1B Cap Petition

If selected, the employer files the H1B cap petition with USCIS. To do this, the petitioner (the employer) must:

• File an LCA (Labor Condition Application) with DOL (US Department of Labor) electronically. It may take up to 7 days to get the LCA certification. This certifies that the employer is eligible to hire a foreign worker and must offer them fair compensation and treatment.
• Pay the filing fee.
• Fill out form I-129.
• Pay some other required fees, such as the Fraud Prevention and Detection, Employer Funded Training Fee, Premium Processing (if needed), etc.
• Prepare the documents related to the employees qualifications, passport, etc.
• Prepare the job contract which is signed by both parties.
• Prepare the documents related to the company to show it is legitimate and real. This includes at least 15 pictures from the building and office, tax returns, and wage payment reports.
• Mail the forms and required documents to USCIS.
• Receive and keep a case number for the petition from USCIS after the submission is complete.
• Wait for the petition approval. It is possible to track your petition status online on USCIS website by signing in to your account from here.

Step 3: Applying for the H1B Visa by the Employee

If the petition is approved, you will get a form I-797 from USCIS. Now is the employees turn to start applying for an H1B visa with the U.S. Department of State (DOS) by following these steps:

• Fill out form DS-160.
• Pay the application fee.
• Request and schedule a visa interview with the U.S. embassy.
• Provide and submit the necessary documents (original and/or copy might be needed), including your current and previous passports, receipt of the application fee, photographs, the interview appointment letter, the form I-129, and It's receipt number, your employers letter, your resume, and the documents for your qualifications and education.
• Bring these documents for the interview.
• Apply for admission to the U.S. with U.S. Customs and Border Protection (CBP). Getting a visa interview can take a while; from a few weeks to a few months. That is why you need to submit your request as soon as possible. For more details on H1B visa requirements and application process, visit this page on USCIS website.

Common Questions and Concerns about the H1B Visa

The process of applying for a visa is complicated and time-consuming. Consulting an immigration lawyer can save you from frustration. Here, with the help of our citizenship attorney, we are going to discuss some of the main concerns and common questions regarding H1B visa requirements and application.

What Are the Key Dates for the H1B Visa in 2023 (for 2024 FY)?

Generally speaking, if you are supposed to start working from October 1 (the beginning of the fiscal year), your visa must be approved before this date. Otherwise, you cannot enter the country to begin your job. That is why in the process of applying for an H1B visa, you need to pay attention to some key dates.

• H1B visa registration window: As before, registrations can be submitted in March 2023. This window will open some day between March 1 to March 18 and will last for two weeks.
• H1B lottery: The lottery starts as soon as the registration window closes. The results are usually announced one week later.
• Filing an LCA: The sponsors can file an LCA with DOL from April 1 to June 15. It usually takes a week to get the certification.
• Mailing the H1B petition: The forms and other documents needed for the H1B petition must be received by USCIS before June 30. So, those who wish to start working in 2024 must be registered in March 2023 by their sponsors to prepare for their H1B visa requirements and application.

How Long Does an H1B Visa Last?

An H1B visa initially lasts for 3 years with the option to extend it for another 3 years. However, it can be extended under some conditions even after the first 6 years. For example, when an H1B visa holder works only seasonally or lives abroad for more than half of the year. If you think you are exempt, call our H1B visa lawyer at (714) 877-5840 to learn what you need to do to get your visa extended.

How Much Does Registering and Applying for the H1B Visa Cost?

In different stages of the H1B process, there are fees to be paid but most of them are paid by the employer. The main fees based on 2022 include:

• Registration fee: $10
• Filing fee: $460
• ACWIA fee: $750 for employers with less than 25 employees, and $1,500 for employers with more than 25 employees.
• Fraud Prevention and Detection fee: $500
• Premium processing (if you wish USCIS to process your case in 15 days) fee: $2,500

What Are the Exempt Organizations from the Cap?

If you get a job offer from a government organization, higher education institution, non-profit research organization, or any other non-profit organization related to a higher education institution, your petition is exempt from the H1B visa limit.

What Happens If You Quit Before Your H1B Ends?

If you quit your job, you will have 60 days to find a new one, otherwise, you will have to leave the country. If you find a new job in this grace period, you will have to apply to change your status. You can also apply for a Green Card in these two months. However, this process can take more than two months.

What happens If You Get Fired Before Your H1B Ends?

If you get fired or lose your job involuntarily for any reason, you will have a 60-day grace period to find a new job and apply to change your status. Otherwise, you will be deported and sent back to your country. The expenses will be covered by the sponsored company. Applying for a Green Card is another option, but you only have 60 days to get your permanent residency.

What about an H1B holders Family and Dependents?

An H-4 visa is granted to the H1B visa holders spouse and children (only those who are under 21). With this type of visa, they are not allowed to work in the U.S. but they can go to school and have a bank account.

What Happens After Your H1B Visa Terminates?

During your first 3 years, you can apply for a Green Card to obtain permanent residency. If you cannot get it until the end of your H1B visa, then you will have to extend it. The extension process is almost the same as the original petition filing. Your employer will have to submit the forms and documents to USCIS. If approved, your visa will be extended for 3 years. As discussed above, if you are a seasonal worker, just commute to the U.S. for your part-time job, or any similar case, you may be able to extend your H1B visa even after the first 6 years.

The H1B Visa and What the Law Office of Tuan Le Can Do for You

Whether you are an applicant or an employer, the H1B visa process can be confusing, and you need a law expert to help you with it. In this way, you will avoid getting rejected for technical reasons. Our accomplished H1B visa lawyer Orange County, CA can help you at any stage of the process or for the extension. If you are not in the region, you can always call us at (714) 877-5840 for a free consultation about the H1B visa requirements and application. Check out our other blog here to learn more about other types of visas suitable for employees.