By Brian Figeroux, Esq.
The H-1B visa is one of the most sought-after nonimmigrant visas for professionals in the United States, particularly for those in specialty occupations that require theoretical and practical expertise in fields like IT, engineering, healthcare, finance, and more. This visa allows U.S. companies to employ foreign professionals for a limited period, typically up to three years, with the possibility of extensions. Read more at www.askthelawyer.us. To read the complete analysis in our publication, click here, and on our immigration blog, click here.
For professionals already in the U.S. on another visa who wish to apply for an H-1B visa, the process may seem complex but manageable. Unlike those applying from abroad, individuals in the U.S. may be eligible for a change of status without having to leave the country, provided they have not violated their visa terms.
This article will provide a detailed analysis of the H-1B visa application process for professionals currently in the U.S., focusing on the eligibility requirements, documentation, timelines, challenges, and legal representation necessary to successfully obtain the visa.
Overview of the H-1B Visa
The H-1B visa is designed for foreign workers who have been offered a job in a “specialty occupation” in the United States. A specialty occupation is generally one that requires the application of specialized knowledge and at least a bachelor’s degree or its equivalent in a specific field. Popular industries where H-1B visas are commonly sought include information technology, healthcare, engineering, architecture, finance, education, and scientific research.
An important aspect of the H-1B visa is that it is employer-sponsored, meaning an individual cannot apply for an H-1B visa independently. Instead, a U.S. employer must submit a petition to the U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign worker.
Basic Eligibility Requirements for H-1B Visa Applicants
To qualify for an H-1B visa, applicants must meet several key requirements:
- Job Offer in a Specialty Occupation: The applicant must have a valid job offer from a U.S. employer for a position that requires specialized knowledge and at least a bachelor’s degree (or its equivalent) in a specific field.
- Educational Qualifications: The applicant must hold at least a bachelor’s degree or higher in a field directly related to the job. In some cases, work experience or other qualifications can be considered equivalent to a degree if properly documented.
- Employer Requirements: The sponsoring employer must demonstrate that the position meets the criteria for a specialty occupation and that they will pay the foreign worker a salary that is commensurate with prevailing wages in the region and industry.
- Maintaining Current Visa Status: For professionals already in the U.S., it is crucial to ensure that they have maintained their current visa status and not violated any terms of their current visa.
Step-by-Step Process for Applying for an H-1B Visa in the U.S.
Professionals currently in the U.S. who wish to change their status to an H-1B visa holder must follow a specific process. This includes preparing the necessary documentation, coordinating with their employer, and ensuring that all timelines are met. Here is a step-by-step breakdown of the process:
Step 1: Employer Registration for H-1B Visa Lottery
The H-1B visa program is subject to annual numerical limits (also known as the H-1B cap). Currently, the U.S. issues 65,000 H-1B visas each year, with an additional 20,000 visas set aside for applicants with a master’s degree or higher from a U.S. institution. Due to the high demand for these visas, a lottery system is used to select applicants randomly.
The first step in the H-1B visa application process is for the employer to register the foreign professional for the H-1B lottery, which takes place during the first few months of the calendar year (usually in March). The registration period typically lasts for 14 days, during which time the employer submits basic information about the company and the applicant.
If the foreign professional is selected in the lottery, the employer can proceed with the full H-1B petition process. If not selected, the applicant will have to wait until the following year to re-enter the lottery.
Step 2: Filing the Labor Condition Application (LCA) with the Department of Labor
After being selected in the lottery, the sponsoring employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). The LCA is a critical document that certifies that the employer is offering the foreign worker wages and working conditions that are comparable to those of U.S. workers in similar roles.
The LCA requires the employer to provide information such as:
- The job title and description.
- The salary being offered.
- The location of employment.
- An assurance that hiring the foreign worker will not negatively affect the wages and working conditions of U.S. workers.
The employer must also attest that there is no strike or lockout at the worksite and that the employee will be paid the prevailing wage for their role.
Once the LCA is filed, it typically takes 7–10 days for the DOL to process and certify the application. After the LCA is certified, the employer can proceed to file the H-1B petition with USCIS.
Step 3: Filing Form I-129 (Petition for Nonimmigrant Worker) with USCIS
The next step is for the employer to file Form I-129, Petition for a Nonimmigrant Worker, with USCIS. This is the formal petition that requests USCIS to approve the foreign worker’s H-1B visa status.
The Form I-129 package must include the following:
- Certified LCA from the DOL.
- A copy of the employee’s job offer letter.
- Evidence that the job qualifies as a specialty occupation.
- Documentation of the employee’s educational qualifications, such as diplomas and transcripts.
- Proof of the employee’s legal status in the U.S. (such as I-94 records and visa documentation).
- Evidence that the employer can pay the offered salary, such as financial statements or tax returns.
Employers can choose between regular processing or premium processing. Premium processing guarantees that USCIS will adjudicate the petition within 15 calendar days for an additional fee of $2,500 (as of 2023). If regular processing is chosen, the wait time can be several months, depending on the volume of petitions USCIS is processing.
Step 4: Awaiting USCIS Approval
Once Form I-129 is filed, the next step is waiting for USCIS to adjudicate the petition. USCIS will either approve the petition, issue a Request for Evidence (RFE) asking for additional documentation, or deny the petition if they find that the job or applicant does not meet the necessary criteria.
If USCIS issues an RFE, it means that they need more information to make a decision on the case. RFEs are common in H-1B applications and typically request additional evidence to clarify the applicant’s qualifications, the specialty nature of the job, or the relationship between the employer and employee. Applicants and employers should respond to RFEs promptly to avoid delays.
Step 5: Change of Status to H-1B (If Applicable)
For professionals who are already in the U.S. on a different type of visa (such as an F-1 student visa, OPT, or H-4 dependent visa), the approved H-1B petition may also include a change of status request. This means that if the H-1B petition is approved, the individual will automatically transition to H-1B status without needing to leave the U.S.
However, if the foreign professional wishes to travel abroad during the H-1B approval process or after approval but before October 1 (the start date for H-1B employment), they may need to visit a U.S. consulate or embassy to have the H-1B visa stamped in their passport before re-entering the U.S.
Step 6: Starting Employment in H-1B Status
The official start date for H-1B employment is October 1 of the fiscal year for which the H-1B visa was approved. This means that individuals who are granted H-1B status can begin working for their sponsoring employer on or after this date. If the individual was already in the U.S. on another visa, they must ensure that their previous visa status remains valid until the H-1B status begins.
Cap-Exempt H-1B Visas
While most H-1B visas are subject to the annual lottery and numerical caps, certain employers are cap-exempt. This includes institutions of higher education, nonprofit organizations affiliated with such institutions, and nonprofit or governmental research organizations. If an individual is sponsored by a cap-exempt employer, they can apply for an H-1B visa at any time without being subject to the lottery or the annual cap.
Duration and Extensions of the H-1B Visa
H-1B visas are initially granted for a period of three years, with the possibility of extending the visa for an additional three years. In certain cases, H-1B holders who are in the process of applying for an employment-based Green Card (such as under the EB-2 or EB-3 categories) may be eligible for further extensions beyond the six-year limit, under the provisions of the American Competitiveness in the 21st Century Act (AC21).
Maintaining H-1B Status and Compliance with Visa Terms
To maintain H-1B status, the employee must remain employed by the sponsoring employer in the specialty occupation for which the visa was granted. If the employee changes employers, the new employer must file an H-1B transfer petition on their behalf.
Additionally, the employee must be paid the wages stated in the H-1B petition and cannot work in a different role or location than the one approved in the petition unless the employer files an amendment with USCIS.
Failure to comply with these conditions can result in the loss of H-1B status and potential removal proceedings. It is crucial for both the employer and employee to keep accurate records and notify USCIS of any material changes to the terms of employment.
The Importance of Legal Representation
Applying for an H-1B visa involves navigating complex legal processes and adhering to strict deadlines. Errors or omissions in the petition can lead to delays, RFEs, or denials. For professionals already in the U.S. who are seeking to change their status to H-1B, legal representation can significantly improve their chances of success.
An experienced immigration attorney can:
- Ensure that all necessary documentation is provided.
- Respond effectively to RFEs.
- Guide both the employer and the employee through the entire process.
- Handle any legal issues that arise, such as employer compliance or visa status complications.
In a highly competitive environment where only a limited number of H-1B visas are available each year, having an experienced legal team on your side can make all the difference in securing a successful outcome.
Conclusion
For professionals in the U.S. who wish to transition to H-1B status, the application process requires careful attention to detail and strict adherence to immigration regulations. Whether it’s ensuring eligibility, filing the appropriate paperwork, or responding to USCIS inquiries, every step must be handled meticulously to avoid costly delays or denials. Working with a qualified immigration attorney can streamline the process and help professionals achieve their goal of obtaining H-1B status.
If you are a professional already in the U.S. and are considering applying for an H-1B visa, consulting with an immigration attorney can ensure that your application is filed correctly and in a timely manner. 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!