24th September 2024
The H-1B visa allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise.
It is a highly attractive and oversubscribed route, enabling US employers to hire specialized talent, while affording workers the opportunity to live and work in the US.
While the H-1B visa continues to hold appeal, it remains a challenging immigration route, largely due to the quirks of the lottery selection and application procedure.
If you are one of the minority selected in the H-1B lottery, you will want to ensure your submission is comprehensive, compelling and correct. Seeking professional guidance is the most effective way to maximize your chances of a successful outcome.
NNU Immigration are US immigration specialists with specific expertise in H-1B applications.
Our team of US attorneys has extensive experience of supporting employers and skilled workers through the H-1B visa process, bringing insight into both the complexities of the H-1B visa eligibility requirements and ensuring effective management of the application process. Contact us for expert support.
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For advice on any aspect of a US visa application, contact our US immigration attorneys.
For advice on any aspect of the E-2 visa application, contact our US immigration attorneys.
For advice on any aspect of the E-2 visa application, contact our US immigration attorneys.
As the primary US immigration route for skilled foreign nationals with a job offer with a US employer/sponsor, the H-1B visa is highly competitive and oversubscribed. Most applications are subject to the annual H-1B cap, and applicants can only proceed to file a full petition if they are selected in the random lottery process, which takes place when H1B registrations exceed the visa cap.
Demand for the H-1B typically far exceeds the number of visas available. For last year’s lottery, the chances of selection was only 19%. This makes the H-1B a relatively uncertain option for both the employer and worker.
Despite these procedural quirks, we understand the importance of the H-1B visa, both for US employers to gain valuable access to global talent in highly technical and specialist areas, and for workers looking to progress their careers and experience life in the USA.
We bring this perspective to our services, supporting employers and workers to maximize their prospects of securing a successful outcome.
The H-1B visa allows companies in the US to temporarily employ foreign workers in occupations that require theoretical and practical application of a body of highly specialized knowledge, and a bachelor’s degree or higher in the specific speciality, or its equivalent.
It is a nonimmigrant, temporary worker visa that permits qualifying non-US nationals to come to the USA to work in qualifying roles for up to 6 years in total. H-1B visa holders may then become eligible for a Green Card. They can also be accompanied by their spouse and dependent children under 21, who can apply under the H-4 visa route.
Typically, roles in fields such as IT, finance, engineering, and healthcare qualify for this type of visa, although it is potentially open to roles in all sectors, provided the eligibility requirements are met.
The H-1B visa category has an annual cap of 65,000 per fiscal year, with an additional 20,000 for foreign nationals with a US master’s degree or higher.
Because demand for the H-1B visa typically far exceeds the annual cap, USCIS uses an electronic registration system and random lottery process to select a limited number who can proceed to file a full submission for adjudication.
Once the cap has been met, employers must wait until the next year to submit H-1B cap applications.
Certain individuals are exempt from the H-1B annual cap and an H-1B petition may be filed on their behalf at any time, regardless of whether the annual cap has been met.
These include foreign nationals who have been counted toward the cap within the last six years, and foreign nationals who will be employed in the US at an institution of higher education or an affiliated non-profit entity, a non-profit research organization, or a government research organization.
To be eligible for the US H-1B program as a skilled worker, you must show that you meet the H-1B visa education, job and sponsorship requirements.
To qualify for the H-1B visa, the job on offer must require the theoretical and practical application of highly specialized knowledge within the relevant industry. The ‘specialty occupation’ must require a bachelor’s or higher degree, or an equivalent qualification combined with the relevant specialist expertise and work experience.
Applicants without a bachelor’s degree or higher may be able to show degree equivalence through work experience and/or other qualifications.
Specialty occupations commonly fall into fields such as science, technology, engineering, healthcare, marketing, and engineering.
You must have an offer of employment from a US employer in respect of an eligible role and at least one of the following:
a. US bachelor’s or higher degree in the related specialty occupation from an accredited US educational institution.
b. Equivalent foreign degree in the specialty occupation.
c. Unrestricted state licence, registration or certification which allows employment in the specialty occupation in the state where the job is located.
d. Education, training or experience in the relevant specialty equivalent to a degree and recognition as having a suitable level of expertise in the relevant specialty.
A key requirement of the H-1B visa is that the US employer agrees to act as a sponsor by filing the necessary petition (Form I-129) with USCIS on the employee’s behalf.
The employer must also obtain a Labor Condition Application (LCA) from the Department of Labor (DOL), which ensures that the worker will receive wages that meet or exceed the prevailing wage for the position.
H-1B roles must carry a wage that is equivalent to that of similarly qualified and specialist roles, or more than the wage of similarly qualified and specialist roles where the higher wage is the norm in the local area. Alongside this wage, an H-1B role should carry the same work benefits as are made available to similar US workers.
The working conditions of an H-1B role should not have a detrimental effect on similarly employed workers, and the H-1B role must not be applied for during a time of strike, lockout or other work stoppage.
The application process for cap-subject H-1B visas operates during a limited annual window.
The H-1B visa application process comprises strict timeframes, centred around an annual window for initial registrations, followed by petition filings for those who have been selected.
This means employers and workers must work closely to ensure deadlines are met, that the required fees are paid, and that all the required information is provided on time and in the correct format.
The first stage in the cap-subject H-1B application process is for the employer to file an electronic registration on behalf of the worker during the annual H-1B window. This usually takes place during March, but the dates are subject so it will be important to check the USCIS website for confirmed dates.
Once the window closes, if the number of registrations exceeds the number of H-1B cap visas available, a lottery process is used to select a limited number of registrations, who are then invited to submit a full petition.
The employer must submit a Labor Condition Application to the United States Department of Labor to be certified as a sponsor.
This document states the employer’s agreement to pay the employee a wage that is not less than that paid to similarly qualified workers, or where it is more, to pay a wage that is generally accepted for such a job locally.
The LCA must also confirm the employer’s agreement that the employee’s working conditions will not have a negative or detrimental effect on other similarly employed workers and that at the time of filing the LCA, there is no strike, lockout or other work stoppage in place.
If selected in the lottery, the next stage is for the employer to submit a Non immigrant Worker Petition (form I-129), accompanied by the certified LCA form, to the relevant USCIS Service Centre.
The I-129 form should also be accompanied by evidentiary documentation to support the application. Depending on the related job and worker, this documentation could include:
a. the certified LCA as proof that this has been applied for and granted by the Department of Labour
b. proof that the job qualifies as a specialty occupation
c. proof of the employee’s eligibility
d. copy of an unrestricted state licence, registration or certification to work in the specialty occupation in the state where the employment is located
e. copy of a written employment contract between the employer and the employee, or a summary of an oral agreement of the same
It will be important to ensure your petition is comprehensive and fully compliant with the rules, and that you provide sufficient evidence to show you meet the H-1B visa requirements.
Any issues or omissions in the documentation can result in a Request for Further Evidence (RFE), which will delay adjudication of the application.
If the petition is approved, the applicant can proceed to make their visa application using form DS-160 and attend an interview at their local US Embassy or Consulate.
As the primary immigration route for skilled workers to the US, the H-1B visa offers multiple benefits for US employers and foreign national workers:
The H-1B visa allows you to work in your field of expertise in the US and gain invaluable experience in a globally competitive market. It also offers job flexibility, enabling you to change employers or switch between specialty roles while maintaining your H-1B status, provided you secure the relevant permission.
The H-1B visa offers dual intent, allowing you to apply for permanent residency (in most cases requiring employer sponsorship) while maintaining your nonimmigrant visa status.
The H-1B visa enables your family to accompany you to the US, as your spouse and unmarried children under 21 can join you on H4 visas.
The H-1B visa allows you to receive competitive salaries that meet or exceed prevailing wage standards for your profession. Additionally, you’ll have access to bonuses, health insurance, retirement benefits, and other perks offered by US employers.
The H-1B visa offers significant flexibility, allowing you to transfer to a new employer through the H-1B transfer process without needing to leave the US. You can also extend your visa beyond the initial three-year period, up to a total of six years, before you can become eligible for a Green Card.
The H-1B visa offers unique opportunities for professionals seeking employment with qualifying non-profit or research institutions, as these organizations are exempt from the annual visa cap. Additionally, individuals with a US master’s degree or higher can benefit from the advanced degree exemption, providing access to an additional 20,000 H-1B visas reserved specifically for advanced-degree holders.
With valid H-1B status, you can travel freely outside the US and return without issues. You can also retain the validity of your visa stamp during any H-1B transfer process, ensuring continued flexibility and ease of travel.
As a dedicated team of US immigration attorneys, we understand the importance of securing an H-1B visa, for both the employer in meeting their talent needs, and for the worker with plans to relocate to the US.
We structure our services on this basis to deliver expert support at each stage of the process:
1. Initial Consultation
We start with a thorough consultation to understand your specific situation and goals. This step helps us tailor our approach to meet your individual needs.
2. Case Evaluation and Strategy Formulation
Based on the initial consultation, we evaluate the feasibility of your case and develop a strategic approach tailored to your situation. This plan includes timelines, anticipated challenges, and a clear outline of the necessary steps.
We will also consider the availability of alternative immigration options in the event the H-1B registration is not selected.
3. Compliance
The H-1B route has been subject to recent reforms, requiring an understanding of the new processes and rules. We advise on compliance with all regulations related to the H-1B visa, including wage level requirements and employer obligations. Our services ensure that both applicants and employers meet all legal requirements, minimizing the risk of delayed processing or adverse legal action.
4. Document Preparation and Review
We can assist in collecting all required documentation, including proof of qualifications, job offer details from the employer, the specific nature of the specialty occupation, and any previous immigration history. Our team reviews these documents to ensure they are in the required format for adjudication.
5. Application Preparation and Filing
Our attorneys will prepare and review your H-1B visa application to ensure accuracy and completeness. We understand the nuances of USCIS requirements and ensure that your application adheres to these standards.
We will then file the application on your behalf, ensuring that it meets all regulatory requirements and deadlines.
5. Ongoing Communication and Updates
Throughout the process, we maintain open lines of communication with you and provide regular updates on the status of your application. We are available to answer any questions and address concerns as they arise.
6. Handling of Requests for Evidence (RFE) and Procedural Challenges
Our attorneys provide full legal representation throughout the visa application process. This includes corresponding with USCIS on your behalf, responding to any requests for additional information, and handling any legal challenges that may arise.
7. Post-Approval Support
Once your H-1B visa is approved, we provide guidance on the next steps, including compliance with visa conditions.
Beyond the initial application, we support clients with H-1B visa renewals, status adjustments, and, if desired, transitioning from H-1B to permanent residency status.
As H-1B visa lawyers, we bring specialized knowledge and experience to ensure all aspects of the application are compliant with current requirements.
We are adept at handling the substantial paperwork involved in the application process, ensuring that the supporting documentation is comprehensive, complete and submitted within the required timelines.
a. Personalized Service
Each client receives personalized attention from a dedicated attorney who is deeply invested in the success of their case. We pride ourselves on a client-centered approach, where your goals become our mission.
b. Experience and Expertise
We’re a team of attorneys specializing in US immigration law, with specific experience in managing H-1B visa applications. This focus has equipped us with deep insights and practical expertise that benefit our clients.
c. Proven Success Rate
Our firm boasts a high success rate in securing H-1B visas, evidenced by our numerous positive client testimonials and case studies. We have successfully navigated complex cases and achieved favorable outcomes even in challenging scenarios.
d. Commitment to Client Education
We believe in empowering our clients by educating them about their immigration options and the H-1B process. This ensures they are well informed and confident in their decisions.
e. Ethical and Transparent Practices
Integrity is at the core of our practice. We maintain transparency about our fees, the likelihood of success, and any potential risks, ensuring that our clients have a realistic understanding of their case.
We leverage our legal expertise, personalized service, and a dedicated approach to ensure that you can achieve your American dream with minimal stress and maximum confidence.
Among our extensive experience of the H-1B visa program, the following case studies are examples of how we have worked with employers and workers through the application process.
UK Consultants for the US Market
A London-based recruitment practice wished to hire a foreign national graduate of a major U.S. university in the speciality occupation of Senior Managing Consultant, to be based out of their New York office.
Outcome
NNU Immigration successfully showed that the hired employee’s degree and experience was directly related to the duties and skills required by the speciality occupation offered by the company.
IT Specialists for US Market
A British telecommunications company with US operations required a technician for designing, implementing and trouble-shooting technical solutions. The foreign national being sponsored had earned a Bachelor’s and Master’s degrees in a field directly related to the speciality occupation.
Outcome
NNU Immigration worked with the foreign national’s qualifications to successfully achieve an H-1B visa approval. The company now benefits from the foreign national’s expertise.
Our attorneys are experienced in advising employers and workers on strategies to avoid and overcome the challenges commonly associated with H-1B applications, which can include:
a. Cap Limitations
The H-1B visa is subject to an annual cap, which means only a limited number of visas are available each fiscal year. The demand often exceeds the cap quickly hence the application timing and preparation need to be strategic and precise.
b. Lottery System
Due to the cap limits, USCIS implements a lottery system to select which H-1B visa applications will be processed. Applicants must first register during the annual registration period, and only if selected can they proceed to file a full application for adjudication.
We can advise on alternative immigration routes that may be available should the registration not be selected.
c. Specialty Occupation Definition
The applicant must prove that the job offered qualifies as a “specialty occupation” — one that requires a specific set of knowledge or skills typically associated with a bachelor’s degree or higher. We are highly experienced in evidencing this requirement, particularly for new and emerging roles that may not yet be established as a ‘specialty role’.
d. Employer-Employee Relationship
Applicants must demonstrate a legitimate employer-employee relationship and show that the employer maintains an appropriate level of control over the employee’s work. A lawyer can help document this relationship and compliance with the H-1B requirements.
e. Wage Issues
The wage level must meet minimum requirements set by the Department of Labor, ensuring that the visa holder is paid the prevailing wage or higher. We provide practical advice on what these mean and how this information should be presented within the application.
f. Renewals and Status Adjustments
Beyond initial applications, H-1B visa holders often need assistance with visa renewals, status adjustments, or even green card applications. We provide ongoing support to help H-1B workers manage their lawful status.
Whether you are a professional seeking to work in a specialty occupation, an employer aiming to hire foreign talent, or an individual with questions about the H-1B process, NNU Immigration can guide you toward achieving your goal.
Our team of experienced US immigration lawyers is committed to providing personalized, comprehensive legal assistance tailored to your specific circumstances. From preparing and reviewing your application to handling legal challenges and ensuring compliance with all immigration regulations, we provide support and guidance at each stage in the process. Our proven track record of success underscores our capability to handle even the most challenging cases effectively.
For expert H-1B guidance, contact us.
What is an H-1B visa, and who is eligible?
The H-1B visa is a nonimmigrant visa that allows US companies to employ foreign workers in specialty occupations that require technical or theoretical expertise in specialized fields such as in IT, finance, engineering, architecture, and more. To be eligible, applicants must have at least a bachelor’s degree or equivalent in the specific specialty related to the job offer.
How long does the H-1B visa application process take?
The duration of the H-1B visa application process can vary significantly but typically takes about 3 to 6 months from the initial application to when a decision is made by USCIS. Factors that can affect the timeline include the volume of applications received by USCIS, whether you choose premium processing, and the completeness and accuracy of your application.
What are the chances of getting selected in the H-1B visa lottery?
The chances of being selected in the H-1B visa lottery depend on the total number of applications submitted each year and the annual cap limit set by USCIS.
Can I apply for an H-1B visa without a job offer?
No, you cannot apply for an H-1B visa without a job offer from a US employer. The employer must file the H-1B petition on your behalf as the visa is employer-specific. If you change jobs, your new employer must file a new H-1B visa petition.
What happens if my H-1B visa application is denied?
If your H-1B visa application is denied, you can either seek to address the reasons for the denial in a new application or appeal the decision, depending on the grounds for denial. Our attorneys can help review your case, suggest improvements, and assist with re-application or appeal to increase your chances of approval in subsequent attempts.
Can my family accompany me on an H-1B visa?
Yes, your spouse and unmarried children under the age of 21 can apply for H4 visas to accompany you to the US while you are on an H-1B visa. They can stay in the US as long as their H-1B status is maintained.
Is it possible to transition from an H-1B visa to permanent residency?
Yes, it is possible to transition from an H-1B visa to a green card, leading to permanent residency. This process involves several steps, including your employer sponsoring your green card application. Our firm provides comprehensive guidance throughout this process to facilitate a smooth transition.
H-1B Visa: A nonimmigrant visa that allows US companies to employ foreign workers in specialty occupations that require technical or theoretical expertise. It is commonly used by industries such as technology, engineering, and medicine.
Specialty Occupation: A job that requires the application of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty. Common examples include jobs in IT, finance, engineering, and healthcare.
USCIS (US Citizenship and Immigration Services): The government agency that oversees lawful immigration to the United States. USCIS is responsible for processing H-1B visa applications among other types of visas.
Cap Limit: The maximum number of H-1B visas that USCIS can issue each year. For general applicants, the cap is set at 65,000 visas, with an additional 20,000 visas available to those who have earned a master’s degree or higher from a US institution.
Lottery System: A selection process used by USCIS to randomly select which H-1B visa applications will be processed when the number of applications exceeds the annual cap.
RFE (Request for Evidence): A request issued by USCIS asking for additional documentation or information to make a decision on a visa application. This often occurs if an application is incomplete or does not sufficiently demonstrate eligibility for the visa.
Prevailing Wage: The average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Employers must pay at least this wage to H-1B visa holders.
Employer-Employee Relationship: A legal relationship required for H-1B visa applications, where the employer must demonstrate control over the employment of the H-1B visa holder. This includes proving that the employer can hire, pay, fire, supervise, and otherwise control the work of the employee.
Premium Processing: A service offered by USCIS that expedites the processing of certain employment-based visa applications, including the H-1B, for a fee. This service guarantees a response from USCIS within 15 calendar days of receiving the application.
Green Card (Permanent Resident Card): An identification card that proves that a non-U.S. citizen has been granted authorization to live and work permanently in the United States. H-1B visa holders may apply for a green card through their employer, a process known as adjustment of status.
Adjustment of Status: The process by which a non-U.S. citizen residing in the United States on a temporary visa, such as an H-1B, applies to become a lawful permanent resident without having to return to their home country to complete visa processing.
Need specialist advice? Speak to our experts.
Need specialist advice? Speak to our experts.
NNU Immigration is a leading firm of US immigration attorneys advising companies, entrepreneurs, investors, individuals & families from across the globe.
NNU Immigration is registered in England & Wales Company No. 09815477.
Address: Thomas House, 84 Eccleston Square, London, UK, SW1V 1PX
NNU Immigration is registered in England & Wales Company No. 09815477.
Address: Thomas House, 84 Eccleston Square, London, UK, SW1V 1PX
© Copyright 2024
NNU Immigration is registered in England & Wales Company No. 09815477.
Address: Thomas House, 84 Eccleston Square, London, UK, SW1V 1PX