The H-1B visa is one of several work-based, non-immigrant visas to the United States. Developed and administered by the Office of Foreign Labor Certifications at the U.S. Department of Labor (DOL), the H-1B was created as a means for U.S. employers to temporarily hire foreign nationals to fill positions that they feel they cannot fill from the U.S. workforce.
More specifically, the H-1B covers employment opportunities in “specialty occupations.” A “specialty occupation,” according to the DOL, is one that requires “the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.”
Significant examples of such “specialty occupations” would be those under the “Science, Technology, Engineering, and Mathematics” (“STEM”) umbrella. However, many H-1B visas have been issued as well to specialists in various fields of the humanities, business, and education. There is even a specific sub-category (“H-1B3”) for fashion models, although they, too, must be considered a person of “prominence” and possess “distinguished merit and ability.”
If successfully obtained, an H-1B visa is valid for three years and can be extended one time for an additional three years. Within that time, the employer can sponsor their employee’s immigrant visa (“green card”) application. However, if this or another change of status is not applied for, then the foreign national must return to their home country when their visa expires.
H-1B Limits and Lotteries
As you can imagine, an H-1B visa is a highly desirable pathway toward living and working in the United States. For that reason, to protect U.S. citizens’ employment possibilities, the U.S. Congress has established a cap on the numbers of H-1B visas that will be issued each fiscal year. Currently, the cap is set to 65,000. An additional 20,000 visas are reserved for applicants who have received a master’s degree or doctorate at a U.S. college or university.
There are two notable exclusions from this cap, however. The first is if the potential employer is the U.S. Department of Defense (DOD) and the job being offered is linked to a DOD research and development project. The second is if the employer is an institution of higher learning or a non-profit organization linked to such an institution. All others are subject to the cap.
What does this mean in the real world? In fy2023, USCIS received 483,927 registrations for an H-1B visa. That number is about five times higher than the cap. To compensate, the U.S. Citizenship and Immigration Services (USCIS) has had to resort to a random lottery system to cull out the cap-limit of applications. Naturally, that means that many otherwise qualified applicants will not receive their H-1B visa. But, thankfully, being denied solely because the applicant did not win this lottery does not preclude them from applying again the next fiscal year, or from applying for a different visa that may also be available to them.
The H-1B Process
Step One: Registration
The initiative for an H-1B visa is on the prospective employer, called “the petitioner.” They begin the process by filing an electronic preliminary registration with USCIS. The purpose of this step is to alleviate the burden of time and expense that is needed to assemble the full H-1B petition package, only to have it denied simply because of a lack of available visas. This registration requires only basic information about the petitioner and the prospective foreign worker, called “the beneficiary.” There is also a non-refundable $10 registration fee.
Registrations are only received during one period of about two weeks each fiscal year. For fy2024, that period will begin Wednesday, March 1, and will close on Saturday, March 18, 2023.
Properly submitted registrations are then entered into the lottery. It is important to note that the lottery occurs only after the registration period has ended, so it is not necessary to rush to register early. It is better to ensure that it is done correctly rather than quickly.
Step Two: Petition
If a particular registration is selected, meaning that there is a visa number available, the petitioner will receive notice that they can proceed with assembling and submitting the petition itself.
This step consists of two parts. The first is to file a “Labor Condition Application” (“LCA”) with the DOL. This application accomplishes two things. First, the petitioner must prove that the job they are offering to the foreign worker will not adversely affect the employment possibilities or conditions of any U.S. workers. Second, the petitioner must prove that they will pay the foreign worker the higher value of either (a) the same wage they would pay another worker with the same qualifications or (b) the “prevailing wage” for that type of occupation.
If the DOL approves the LCA after its review, the petitioner must then file it along with Form I-129, “Petition for a Non-immigrant Worker,” with USCIS. Accompanying these two forms will be any necessary supporting documentation – diplomas or training certificates, support letters, confirmation of employment, etc. – and the application fee (currently $460, payable by check, money order, or credit card).
Step 3: Authorization
Suppose the beneficiary is already in the U.S., perhaps on a student visa or another type of work visa. In that case, they must simply wait until they receive their H-1B visa status before they can begin working for the petitioner. After all, they have already received approval to enter the U.S.
If the beneficiary is still in their home country, upon approval of their H-1B petition, they must then file a form DS-160, “Non-immigrant Visa Application,” with their local embassy or consulate. If that is approved, they will be summoned for an interview and given their visa, depending on the interview results.
This may seem odd and a bit redundant, but remember that the I-129 petition is simply to establish eligibility to work in the specific job being offered. It does not screen the applicant for any possible security risks or other things that may preclude them from entry into the U.S. That is why this secondary step must be taken through a local visa processing office.
Get Help with Your H-1B Visa at Phillip Levin & Associates
This process can be somewhat confusing, especially if you are not familiar with immigration law. Moreover, as you have seen, there are zero guarantees that an H-1B visa will be granted, even under the best of circumstances. Nevertheless, our team at Levin and Pangilinan PC are experts in all facets of immigration processes and litigation, and we can help you assemble and correctly submit all necessary paperwork to ensure your best chances of successfully receiving your visa. Take a moment to fill out a contact form, and a member of our team will reach out to learn more about your specific situation and determine the best way we can help.
