How a Professional Worker Living Overseas Can Successfully Apply for an H1B Visa

By Brian Figeroux, Esq.

The H1B visa is one of the most sought-after visas for professionals aiming to work in the United States. This visa allows U.S. employers to hire foreign workers in specialty occupations that require theoretical or technical expertise. The process to secure an H1B visa can be intricate, especially for professionals living overseas. To successfully navigate the process, it is essential to understand the requirements, timelines, and steps involved. Read more at www.askthelawyer.us. To read the complete analysis in our publication, click here, and on our immigration blog, click here.

In this article, we will break down the H1B visa process for overseas professionals, highlighting key aspects such as eligibility, documentation, employer sponsorship, and the application procedure at a U.S. Consulate.

1. Understanding the H1B Visa

The H1B visa is a non-immigrant visa that allows U.S. companies to employ foreign workers in specific professional roles, primarily in fields such as IT, engineering, science, medicine, and business. The positions typically require at least a bachelor’s degree or equivalent in a relevant field.

To apply for an H1B visa, both the prospective employer and the foreign professional must fulfill certain requirements.

Eligibility Criteria for the H1B Visa

• The applicant must have a job offer from a U.S.-based employer.
• The job must qualify as a “specialty occupation,” requiring a bachelor’s degree or higher in a specific field of study.
• The foreign worker must have the necessary qualifications for the job, typically a degree or equivalent experience.
• The employer must demonstrate that hiring a foreign worker will not adversely affect the U.S. labor market.

2. Securing Employer Sponsorship

One of the foundational steps for an H1B visa application is securing sponsorship from a U.S. employer. Unlike other visa categories, foreign workers cannot apply for an H1B visa independently; they need a job offer from a U.S. employer who is willing to sponsor their visa.

Steps Involved in Employer Sponsorship:

• Job Offer: First, the employer must offer a position that qualifies as a specialty occupation.
• Labor Condition Application (LCA): The employer must submit an LCA to the U.S. Department of Labor (DOL). The LCA ensures that the foreign worker’s employment will not negatively affect the wages and working conditions of similarly employed U.S. workers. It also sets out wage conditions for the foreign worker.
• Filing Form I-129: Once the LCA is approved, the employer can file Form I-129 (Petition for a Nonimmigrant Worker) with U.S. Citizenship and Immigration Services (USCIS). This petition establishes the basis for the worker’s visa application.
• Approval Notice (Form I-797): If USCIS approves the petition, they will issue an approval notice (Form I-797), which the foreign worker will need to present during the consular visa application.

3. Cap and Lottery System

A significant factor to consider in the H1B visa process is the annual cap on visa numbers. Currently, there is a cap of 85,000 visas per fiscal year, of which 65,000 are for foreign workers with a bachelor’s degree, and an additional 20,000 for those with a U.S. master’s degree or higher. Because the number of applications often exceeds the available slots, USCIS uses a random lottery system to select applicants for processing.

4. Filing the Visa Application at the U.S. Consulate

Once an overseas professional secures employer sponsorship and USCIS approves the H1B petition, the next step is applying for the actual visa at the U.S. consulate in the worker’s home country.

Steps for Consular Processing:

Prepare Required Documentation: The worker must gather the following documents:

Passport valid for at least six months beyond the intended period of stay in the U.S.

Form DS-160 (Online Nonimmigrant Visa Application)

Form I-797 (Approval Notice from USCIS)

Copy of the Labor Condition Application (LCA)

Employment offer letter from the U.S. employer

Relevant degrees, transcripts, and any necessary professional licenses

Passport-style photos 

• Complete Form DS-160: The DS-160 form is the primary document for the visa application process. It must be completed and submitted online. After submission, the worker will receive a DS-160 confirmation page with a barcode, which should be printed and kept for the interview.
• Pay the Visa Fee: The H1B visa application fee is non-refundable and must be paid before scheduling the consular interview. Fees can vary depending on the country of application.
• Schedule a Visa Interview: Once the DS-160 is submitted and the fee is paid, the worker must schedule an interview at the U.S. consulate or embassy in their country of residence. Due to backlogs or limited appointments, it’s recommended to schedule the interview as soon as possible.
• Attend the Consular Interview: On the interview day, the worker will present the required documents and answer questions from the consular officer. Typical questions include details about the job offer, the sponsoring employer, and the worker’s qualifications. It’s important to provide clear, honest answers and have all documentation readily available.
• Wait for Visa Approval: If the visa is approved, the consulate will place an H1B visa stamp in the worker’s passport. The worker can then enter the U.S. under H1B status. Processing times can vary, but applicants should be prepared for the possibility of administrative delays.

5. Port of Entry and Beginning Employment

After receiving the H1B visa stamp, the worker can travel to the U.S. They will present their visa and supporting documents (such as Form I-797) at the U.S. port of entry. Customs and Border Protection (CBP) will inspect the worker’s documents and may ask additional questions about their employment. Once cleared, the worker can begin employment with their sponsoring employer.

It’s important to note that an H1B visa is initially valid for three years, with the possibility of extension up to six years. After that, the worker may need to pursue other visa options or apply for permanent residency (green card) if they wish to continue working in the U.S.

6. Challenges in the H1B Process

Applying for an H1B visa can be complex and involves multiple steps, some of which can face significant hurdles:

• Lottery System: Due to the limited number of visas, many applicants may not be selected for processing, even with a qualified employer and petition.
• Backlogs and Delays: Processing times for both USCIS approval and consular appointments can be unpredictable, with delays in certain regions.
• Changing Immigration Policies: U.S. immigration rules, including those governing H1B visas, are subject to change. Applicants must stay informed and consult with legal professionals to ensure compliance with the latest regulations.

7. The Role of Legal Assistance in the H1B Process

Given the complexity and frequent changes in immigration laws, it is highly recommended that overseas professionals seeking an H1B visa consult with an experienced immigration attorney. A lawyer can assist in:

• Navigating the lottery process: Ensuring all documentation is accurate and submitted on time to improve chances in the H1B lottery.
• Handling denials or delays: Addressing issues with denied petitions or delayed consular appointments.
• Exploring alternatives: Identifying other visa options if the H1B visa application is unsuccessful.

Law firms like Figeroux & Associates, located in Brooklyn, New York, specialize in handling immigration matters, including H1B visas. They can guide applicants through each stage of the process, from obtaining employer sponsorship to navigating consular interviews, ensuring the best possible chance for success.

Conclusion

For professionals living overseas, the journey to securing an H1B visa and working in the United States can be challenging but rewarding. Understanding the eligibility criteria, obtaining employer sponsorship, and carefully navigating consular procedures are crucial steps to success. Given the complexity of the process, having skilled legal representation can make all the difference.

The Law Firm of Figeroux & Associates, which has over 25 years practicing immigration law, can help you navigate the process and avoid common pitfalls. To schedule an appointment, visit www.askthelawyer.us or call 855-768-8845. The lawyer you hire does make a difference!