Non-US workers may be eligible for an H1B visa if they are coming to the USA to perform services for a qualifying sponsor in a specialty occupation that requires graduate-level skill.
The H-1B visa application process is, however, far from straightforward. Strict timeframes apply, with a single, annual, electronic registration period in March for visas that will be valid from October 1 of the same year. This means the employer and the employee must be organized and plan in advance of the annual registration windown opening.
In addition, given the cap on the number of H1-B visas that can be allocated each year, employers cannot be certain that an application will be granted. So as well as preparing for the H1-B petition process, employers typically also need to consider alternative immigration routes for prospective skilled workers.
NNU Immigration are specialists across all classes of US visa, including the H1B visa.
As dedicated US immigration attorneys with exceptional knowledge and insight into the visa application processes, we advise businesses and their non-US employees on available US visa and immigration options, including the H1B visa. We provide full support on the application process and guidance on compiling all the necessary documentation.
In light of the H1B cap, we also help companies explore alternative visa options to meet their US immigration requirements.
Contact our US immigration experts
For advice on any aspect of a US visa application, contact our US immigration attorneys.
The H1B visa is specifically open only to graduate-level workers in specialty occupations requiring theoretical or technical expertise in specialized fields.
To qualify as a specialty occupation, the position must meet one of the following criteria:
To qualify to perform services in a specialty occupation, the worker must meet one of the following criteria:
The H1B visa category has an annual numerical cap which limits the total number of foreign nationals provided H1B status to 65,000 per fiscal year, with an additional allocation of H1B status to 20,000 foreign nationals per fiscal year with a US master’s degree or higher.
In 2020, a new electronic system was introduced for cap-subject H1-B petitions.
This requires the H1B employer to register with USCIS and pay a $10 registration fee for each H1B applicant (‘beneficiary’) it intends to sponsor.
The registration window is open for a period of at least 14 days each year, usually during March.
Registrations can be made at any time during this specified period, and once the window is closed, registrations will be selected at random.
Only those with selected registrations will be eligible to file H-1B cap-subject petitions.
Accepted H1B petitions which are subsequently approved will allow the foreign national to begin work for the petitioning employer no sooner than October 1 of the same year, in line with requested petition validity dates.
Certain individuals are exempt from the H1B annual cap and an H1B petition may be filed on their behalf at any time, regardless of whether the annual cap has been met. Such individuals include:
Workers can spend up to six years in the US with H1B status before they must return abroad for at least one year before being granted H1B status again.
To remain in the US longer than six years, H1B visa holders can become eligible for a Green Card and file for an adjustment of status to permanent residency.
H1B spouses and dependant children under the age of 21 may apply for the H-4 visa, which will allow them to reside with the primary visa holder in the US. With an H-4 visa, family members can work, study, obtain a driver’s license, open a bank account while in the US.
Applying for an H1B visa involves the following:
Before filing an H1B visa petition, the employer must first file an LCA for certification by the DOL which attests:
LCAs are typically submitted to the DOL electronically and are reviewed within seven working days. Once the LCA has been certified, the employer may proceed with filing the H1B petition.
The H1B petition must include the following documentation to demonstrate eligibility for the H1B visa:
Once the H1B petition is complete, it will be submitted to USCIS for adjudication. Processing times may vary depending on USCIS caseload and service status.
If during the adjudication process a USCIS adjudicating officer determines that additional information and/or documentation is needed to render a decision on the case, a request for additional information will be issued. Such requests vary in length depending on the extent of information and documentation requested.
Upon receipt of the requested information and documentation, USCIS will resume processing of the petition.
For an additional fee, premium processing of the H1B petition can be requested for a fast-tracked decision.
Under this service, USCIS will adjudicate the case within 15 calendar days of receipt, subject to any cap-imposed adjustments. If a request for additional evidence is issued on a petition filed using the premium processing service, USCIS will have an additional 15 calendar days from receipt of the response to adjudicate the case.
Note that use of the premium service does not afford any special cap benefits.
If the H1B petition is approved, the applicant must arrange a visa interview at a US consular post abroad. Interview procedures vary widely among consular posts so it is important the instructions provided are followed.
During the interview, a consular officer will ask the applicant questions to confirm the information provided in the H1B petition about the worker and their US employment.
The applicant will be notified of the decision at the interview. Provided the application is approved the consular officer will retain the worker’s passport for visa stamping.
The worker’s passport with embossed H1B visa stamp will be returned to them within approximately one week of the interview. Once received, the worker is permitted to travel to the US to work in H1B status in line with the employment conditions provided in the H1B petition.