Millions of people across the world dream of building a career and living a fulfilling life in the United States of America. Owing to this reason, many individuals begin to tread the path of moving to this economically developed and culturally diverse nation every year. They select the most suitable visa type to enter the USA for making their dreams come true.
From the various visa types available for professionals, the H-1B is the most sought-after visa by foreigners who wish to pursue employment in the United States. The H-1B visa program has been designed to provide a temporary work visa (non-immigrant visa) to foreign nationals. Over the years, the popularity of, and hence, the demand for an H-1B visa has risen due to the benefits enjoyed by both workers and employers.
The progressive increase in the number of applications received for an H-1B visa is proof. However, the number of H-1B visas issued in any fiscal year cannot exceed the pre-determined annual quota (certain exemptions are there). Though the selection of a candidate depends majorly on the lottery process, the importance of filing a correct petition cannot be undermined. Moreover, new changes are incorporated in the H-1B visa program from time to time.
So, staying updated with the changes regarding regulations and formalities is necessary to avoid denial of an H-1B visa application. Most of the individuals, especially those who don’t consult an immigration attorney, face difficulties while applying for an H-1B visa. Therefore, we have mentioned some tips that you can use while filing an H-1B petition. But before that, let’s have a look at the eligibility criteria, benefits, and application process of the H-1B visa.
Eligibility Criteria for the H-1B Visa
An H-1B visa is meant for foreign nationals who want to occupy positions that require specialized knowledge. The list of positions that qualify for this visa is huge. Healthcare, law, computer programming, social sciences, research, and arts are some of the fields in which such positions exist.
H-1B visa aspirants should have at least a bachelor’s degree in the field in which they wish to be employed as an international worker in the USA. Though you can apply for an H-1B visa to pursue a job that is not relevant to your educational background, the chances of getting a visa are less. It always works in favor of an applicant to have a job offer in the field relevant to their bachelor’s, master’s, or doctoral degree.
Annual Quota for the H-1B Visa
The quota or cap count for the H-1B visa is divided into two categories, namely regular and master’s. Under the regular quota, 65,000 H-1B visas are granted every year. 20,000 H-1B visas are granted every year under the master’s quota. From the 65,000 regular quota visas, 1400 visas and 5400 visas are reserved for citizens of Chile and Singapore respectively under the free trade agreement.
Individuals, who have attained a master’s degree or higher from a U.S. educational institution, are eligible for applying under the master’s quota. The educational institution, in this case, should fulfill two criteria. First, it should be non-profit in nature, and second, it should be accredited by a nationally recognized agency.
Individuals with a bachelor’s degree earned from an educational institution in the USA or any other foreign country can apply under the regular quota. A foreign degree must be equivalent to a U.S. degree. Moreover, foreign degree holders should possess three years of work experience. Sometimes, applicants who have not completed a 4-year degree program are also considered for the H-1B visa provided they have significant experience of working on a position they wish to take up in a U.S. based firm.
Other than this pre-determined quota, H-1B visas are also issued to applicants who want to work for an institution of higher learning, a non-profit organization associated with an institution of higher education, or a governmental research center. Such visas are called cap-exempt visas as they are exempted from the annual quota or limit. Applicants eligible for a cap-exempt visa don’t need to face competition.
Application Process for the H-1B Visa
The H-1B application process begins mainly with ascertaining your eligibility for the H-1B visa. If you meet the required criteria for falling under regular quota, master’s quota or cap exemption, you might get an H-1B visa. Now, the point to consider here is that you cannot submit an application for yourself.
The employer for whom you will work in the USA has to file a petition on your behalf. So, it’s implied that you need to secure a job offer before beginning the visa application process. Your employer will sponsor you for an H-1B visa. The documentation and fees will be taken care of by the employer.
From the filing season 2020, significant changes have been made in the application process. Earlier, employers used to submit petitions by sending the mandatory documents and fees through the post to the USCIS (U.S. Citizenship and Immigration Services). Petitions that were not selected under the lottery process or rejected after being scrutinized were used to be returned to sponsors by the USCIS.
But now, employers don’t need to send a petition. They just have to register on the dedicated online portal by creating an account. Then, they need to submit registration by filling some details about the beneficiary and paying a non-refundable fee of $10. Only those employers whose registration/s get selected have to file an I-129 petition. This new system saves a lot of time of the USCIS, employers, and other parties involved.
Before submitting an I-129 petition for an H-1B visa, the employer should have an approved Labour Condition Application (LCA). The employer has to mention the wages they intend to pay to the potential employee in LCA. Employers need to make sure that the wages mentioned by them are equal to the local prevailing wages for the same occupation in the area of employment.
To grant H-1B visas for the fiscal year 2021, i.e., filing season 2020, the USCIS allowed the account creation process on the online portal to start from 24th February 2020. Registrations were submitted from 01st March 2020 to 20th March 2020. On 31st March 2020, the results of the lottery were updated on the system.
Sponsors (employers) and beneficiaries (potential employees/H-1B visa holders) could check the status of their registration on the portal. Registrations who got selected have ‘Selected’ status whereas, registrations who didn’t get selected have ‘Submitted’ status. This ‘Submitted’ status would be changed to ‘Not Selected’ status after 01st October 2020. Multiple registrations submitted for the same beneficiary by a single sponsor have ‘Denied’ status.
Selection Process for the H-1B Visa
As the number of applications received every year is more than the annual quota, a computerized lottery is conducted to select the applicants. First, a lottery is run for selecting the applicants under the regular quota. Then, another lottery is run to select the applicants under the master’s quota.
Applications eligible for the master’s quota are also made a part of the lottery run for the regular quota. So, some master’s degree holders get selected under the regular quota. Applications of master or higher degree holders are then transferred to the lottery run for the master’s quota.
The lotteries were used to run in reverse order previously, i.e., the master’s quota lottery was run before the regular quota lottery. The decision to run the lottery for regular quota before running the lottery for the master’s quota was implemented from the H-1B visa filing season 2019. It was implemented with the objective to increase the chances of master or higher degree holders for getting a visa.
The Validity of an H-1B Visa
Once granted, an H-1B visa stays valid for 3 years. Visa holders can apply for an extension of another 3 years. Thus, an individual can stay in the USA on an H-1B visa for a maximum period of 6 years. The application for extending the H-1B visa can be submitted 6 months before the expiration date.
Generally, H-1B visa holders get a grace period of 60 days after the expiration of their visa or discontinuation of their employment. During this grace period, you can find a new sponsor, change your visa status, or return to your home country. If your visa expires while your application for an extension is under process, you get a grace period of 240 days for living in the USA.
During your stay in the USA, you can switch jobs, but your new employer should file a petition on your behalf. The previous petition will not be considered here. You can work for multiple employers at the same time provided you have approved petitions filed separately by all of them.
Benefits of the H-1B Visa
The H-1B visa is a dual intent visa which means that a person holding this visa can not only temporarily stay but also show the intention of permanently settling in the USA. More often than not, H-1B visa holders find a sponsor for getting a green card (permanent residence card). Once you get a green card, you can become a U.S. citizen through the process of naturalization.
An international worker with an H-1B visa can enjoy various rights while living in the USA, for example, having a social security number, opening a bank account, getting a driver’s license, traveling, and owning property. You can even study during your stay in the United States without losing your H-1B status. You just need to continue your employment and get paid every month.
Both H-1B visa holders and green card holders can invite their immediate family members to live with them in the USA by applying for a visa under the applicable dependent visa category. If you become a U.S. citizen, you can even participate in the voting and run for office in elections. You should maintain lawful status while staying in the USA.
Tips for Filing an H-1B Petition
Check whether you are eligible for cap-exemption
An application for an H-1B visa can be either cap-subject or cap-exempt. If you receive a job offer from a cap-exempt employer, you need not worry about the annual quota of 85,000 cap-subject H-1B visas. As mentioned earlier in this blog post, three kinds of employers can be classified as cap-exempt employers.
If you fall under the cap-exemption category, the I-129 petition for your visa can be submitted at any time during the year. You and your sponsor don’t have to comply with the H-1B visa application timeline. Petitions filed for H-1B extensions and transfer from other visa types to H-1B also don’t need to comply with the application timeline.
If an individual who has obtained an H-1B visa by filing a petition under cap-exemption wants to work for an employer who is not cap-exempt, he or she has to take part in the lottery process and follow the visa application timeline.
Make multiple employers submit a registration
A beneficiary cannot get multiple registrations submitted for him or her by a single employer as per the rule. But you can definitely convince multiple employers to submit separate registrations for you. These registrations can be for a full-time job, a part-time job, or a combination of both of them.
Having multiple registrations submitted for you can increase the possibility of getting selected in the lottery process, and thus, availing a visa. If you get selected via more than one registration, you can ask sponsors of one or more of the selected registrations to file a petition for you.
Choose a job in the field related to your education
As discussed earlier in this blog post, the job that you wish to undertake as an H-1B visa holder, might be either related or not related to your higher education. But you are more likely to receive approval for a visa petition that involves a job related to your degree.
If fields of your education and occupation are not related, you should have a strong reason behind the same. You need to have sufficient experience to prove your knowledge and expertise in the field of your occupation. If you receive an RFE (Request for Evidence) in this case, you should be able to explain your situation to the visa consular officer.
Refrain from paying fees for your visa application
As per the regulations, the employer, i.e., the sponsor of your H-1B visa petition has to pay all the fees, such as base filing fee, ACWIA fee, and fraud prevention & detection fee to the USCIS. You should not pay any fee at any stage of the visa application process.
As far as fee for premium processing of petition is concerned, either the beneficiary or the employer can pay it. The premium processing fee is paid for getting the result of the I-129 petition filed on your behalf in 15 days. Employers who need to know the decision quickly usually choose premium processing.
If an employer forces you to pay the fees, you should steer clear of them, as it might be an indication that the employer is not genuine. You should not break the rules for getting a job offer or an H-1B visa at any cost as it will harm you in the long run.
Go through the petition properly before filing
Before your sponsor files the petition, you both should go through it properly to ensure that it is free from all mistakes. Check that all the required information has been filled and signatures at required places have been made in the Form I-129.
Include the photocopies of all the mandatory documents related to your education, experience, license (if any), and so on in your application package. Send the petition through the post to the right USCIS service center as per the location of the primary office of your employer.
Face the interview for a visa with confidence
If you are already living in the USA on some other non-immigrant visa, for example, F1, you might not have to attend the interview. In such a case, if your H-1B visa petition gets approved, your status will change from F1 to H-1B. You can start working from the 01st October of the year in which you filed a petition.
But if you are currently living in a country other than the USA, you would have to attend the interview at the U.S. embassy situated in that country or your home country. The visa consular officer might ask you questions regarding your objective behind applying for an H-1B visa.
You should be ready to answer all the questions with confidence. Before appearing for an interview, refer to the photocopy of your petition to maintain consistency in the information. Remember to carry all the necessary documents with you.
Consult an expert U.S. immigration attorney
Though you might have gained all the knowledge about the H-1B visa eligibility, application process, and documentation, you are still prone to making mistakes. When it comes to important and tricky matters, such as obtaining a visa, you should rely on the experts.
Consulting a professional U.S. immigration attorney will make your journey of availing a visa much smoother. You will get guidance regarding the paperwork to be completed, deadlines to be complied with, and more at every stage of the process. You can get all your queries resolved fast.
The opportunity to get an H-1B visa comes once in a lifetime. You should put all your efforts into filing a successful petition, i.e., petition that cannot be denied on any grounds. Follow the tips mentioned in this blog post and take the help of a reputable immigration attorney to make the most out of this opportunity. We offer legal services and the best possible advice for H-1B visa petitions.
If you are interested in obtaining an H-1B visa, don’t hesitate in approaching us! Call us on (804) 715 – 8126 or send an email to [email protected]. You can even opt to fill a form on our website and we will get back to you at the earliest!