Our firm specializes in securing H-1b visas for foreign nationals. We represent both the employer and foreign national employee throughout the process. Even if the annual H-1b Cap has been reached, it is important to understand what types of H-1b visas are not subject to the annual cap, and what are the best alternatives to H-1b visa.
H-1b visas are the most common visas among professionals because of their relatively straightforward eligibility requirements. THESE REQUIREMENTS ARE:
* The applicant must have obtained at least a bachelor’s degree or the equivalent of a bachelor’s degree based on education and/or employment
* The position offered must require the type of degree held by the applicant.
Currently, 65,000 H-1b visas are available each fiscal year. Once the annual cap is reached, a person who does not already hold H-1b status must wait until the following year to apply. Visas are available on October 1 in any fiscal year, however, the H-1b Lottery is conducted in March, more than six months prior to this date. Certain employers, including institutions of higher education and non-profit research entities are exempt from the cap. An additional 20,000 visas are allocated to individuals who have earned Masters Degrees or Ph.ds from U.S. colleges or universities.
H-1b status is granted for an initial 3 year period of time and can be extended for an additional 3 years. Extensions beyond the 6 years are possible if a person timely begins the permanent residence process before the end of their fifth year of H-1b status or completes the first two steps of the permanent residence process before expiration of their sixth year of H-1b status.
H-1b status is employer specific; therefore, if a H-1b employee wants to change jobs, their new employer must file a H-1b “transfer” application on behalf of the employee. Once a person wins the lottery and is granted a H-1b visa, they do not have to reenter the lottery even if they change employers.
Before filing a H-1b petition, an employer must obtain an approved Labor Condition Application (“LCA”). A LCA is essentially a declaration by the employer that:
* Pay the prevailing or actual wage for the position in the geographical area of employment. Prevailing wages are obtained from government labor databases.
* The foreign national employee will be accorded the same employee rights and benefits provided to U.S. worker
* The employer will post a notice at two places at the employer’s worksite that informs other employees that a H-1b employee is being hired.
In order to document compliance with the various H-1b requirements, an employer is required to maintain a Public Access File that can be reviewed by the public or by the government agency responsible for ensuring that employers comply with the H-1b regulations.
H-1bs, because of their prevalence, are the most highly regulated non-immigrant visas. Additionally, there are a number of government filing fees associated with H-1b applications. These fees include:
Filing fee for the application on form I-129: $780
Fraud prevention fee: $500
Training fee: (a fee placed into a general fund to help train U.S. workers): $750 if employer has fewer than 25 employees, $1500 of employer has 25 or more employees.
Asylum Program Fee: As of April 1, 2024, employers are now required to pay this fee in order to raise funding for the large number of Asylum applicants at the Southern border. This fee is $600 for large employers (over 25 employees) and $300 for small employers (25 or fewer employees).
Optional expedited processing (“premium processing”) fee: $2805. USCIS has raised this fee substantially over the last few years. The typical adjudication time for H-1b applications ranges from 4-6 months. In many instances, the employer or employee cannot wait this long for a decision. The premium processing fee requires USCIS to adjudicate the petition within 15 days. However, USCIS may request additional information, in which case they are given an additional 15 days from submission of the additional evidence to make a final decision about the case.
For more information on H-1bs (FAQs and the basics), click here.