H1B Visa Application: Everything You Need to Know

 

The H1B visa allows foreign nationals to perform specialty occupations in the United States. It exists for occupations in a variety of different fields. There are 65,000 H1B visas made available with the standard H1B cap, and an additional 20,000 H1B visas are available for advanced degree holders.

 

In this guide, we’re going to discuss the what materials are needed for going for forward with an H1B visa application, and the general process involved with it. If you have any questions, feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and I would be happy to help you.

 

Overview:

 

1. Filing the Labor Condition Application
2. What evidence is required for an H1B application?
3. More details on H1B filings are impacted
4. After filing: What comes next?
5. Conclusion

 

 

1. Filing the Labor Condition Application

 

If you are selected in the H1B cap-subject lottery, the very first step afterward is to have a LCA (Labor Condition Application) filed on your behalf and certified by the U.S. Department of Labor.

 

In general, an LCA cannot be filed more than 6 months in advance from the time employment begins. Its primary purpose is to certify that the employee will be paid at least the prevailing wage for their tentative occupation. The prevailing wage is based on both the nature of the position and the geographic area in which the beneficiary will be working.

 

It is highly recommended that an experienced immigration attorney handles the filing of your LCA, as making sure the information is correct and that all questions are properly answered is crucial.

 

Once the LCA has been approved and certified, the H-1B petition can be moved forward with.

 

2. What evidence is required for an H1B petition?

 

Integral to the success of any H1B petition is the strength of evidence that accompanies it.

 

USCIS discusses its primary evidence requirements for the H1B in its instructions for the I-129 form (Petition for a Non-Immigrant Worker).

 

As discussed, if your petitioner has registered for the H1B cap-subject lottery and you are selected, you are eligible to have an H1B cap-subject petition filed on your behalf. But, there are some requirements.

 

First, your proffered position has to qualify as a specialty occupation. This is often an area of contention between USCIS and immigration attorneys. USCIS offers the following definition of a specialty occupation:

 

“A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”

 

Proving that a position is a specialized one is one reason why strong evidence is needed for H1B petitions. Guidelines on required evidence include:

 

• Evidence that a labor condition application (LCA) has been certified with the U.S. Department of Labor;
• Evidence showing that the proposed position qualifies as a specialty occupation;
• Evidence that the beneficiary has completed necessary education (at least a U.S. bachelor’s degree or its equivalent)
• A signed employment agreement between the employee and employer;
• Any licenses that may be required for the proffered position (for example, architects may be required to submit proof of licensure with a relevant regulating body).

 

Supplementary evidence includes a resume for the beneficiary, proof of immigration records/visas for the beneficiary; the beneficiary’s passport; information about the petitioner (such as financials, documents establishing the nature of the business, photographs, etc.); among others.

 

These items comprise the body of a standard H1B petition. If an H1B petition is issued a request for evidence, more information can be gathered.

 

Since USCIS implemented its new electronic registration system, a registration confirmation number is also required for submission with the H1B petition. Additionally, if the beneficiary is required to work off-site, all location where they will be working must be provided.

 

3. More details on how H1B filings are impacted

 

USCIS lists three relevant laws with impact the filing of H1B visa petitions, those being:

 

• The American Competitiveness and Workforce Improvement Act (ACWIA)
• The H1B Visa Reform Act of 2004
• Public Law 114-113

 

The ACWIA provides that petitioners complete a Data Collection supplement in the I-129. Currently, the fees for H1B petition are mandated by all three laws. For all H1B petitions, a $460 I-129 filing fee is necessary. See the following for details on additional fees:

 

Public Law 114-113 mandates that in addition to the $500 Fraud Prevention and Detection fee (required by all petitioners), petitioners must pay a $4,000 fee if:

 

• They employ more than 50 employees in the United States;
• And, more than 50 percent of those employees are in H-1B (or L-1A/B) status

 

4. After filing: What comes next?

 

With standard processing, USCIS can take anywhere from 3 months to a year to review and adjudicate an H1B petition. If a petitioner decides to opt for premium processing (which requires an additional $2,500 fee), a decision can be reached in a maximum of 15 days.

 

If USCIS determines that more evidence is needed to issue a decision on a petition, they may issue a RFE (Request for Evidence), which typically gives petitioners approximately three (3) months to respond.

 

5. Conclusion

 

When all steps have been properly followed, the H1B application and filing process can be completed in a way that is not overly complex. In any case, it is recommended that you seek the assistance of an experienced immigration attorney.

 

If you have any questions or would like assistance with the H1B application process, myself and my team would be happy to assist. Please feel free to email me directly at Michael@AshooriLaw.com. I am very responsive via email and would be happy to help you.