Ask An Immigration Attorney: What Is An H-1B Visa?

America often gets referred to as the land of opportunity. It’s no surprise that millions seek to emigrate to the United States to pursue their American dream.

Several questions will run through your mind if you are in a specialty occupation or can provide services of exceptional merit and wish to emigrate to America.

Which visa do I need?

How do I apply for the visa?

Do I need an immigration attorney during the visa application process?

Today, our immigration lawyers explain everything about the H-1B visa and the requirements and procedures for applying for it.

Let’s get straight to it.

The H-1B Visa Explained

Also known as the Person in Specialty Occupation Visa, this nonimmigrant work visa helps American employers to hire highly-qualified foreign workers for specialty jobs. Unlike most US visas, the application process for the H-1B visa gets initiated by an employer rather than the applicant.

The employer must have a vacancy in their organization and cannot find a qualified American employee to fill it. Typically, these positions require specialized skills that most people do not have. If the requirements for the position are fulfilled by a foreigner and the employer accepts the application, they will initiate the H-1B visa process by following these steps:

  • File a Labor Condition Application (LCA).
  • File a petition with the USCIS.
  • Complete form I-129.
  • Submit the documents and forms file and wait for a response from the USCIS.

Employers navigating the intricacies of the H-1B visa process often seek the guidance of an immigration lawyer to ensure compliance with the intricate steps involved in filing a Labor Condition Application (LCA), petitioning the USCIS, completing Form I-129, and submitting the necessary documentation.

Eligibility Requirements for the US H-1B Visa

Before foreign workers enter the US on an H-1B visa, you must fulfill several requirements. These include:

  • At least an undergraduate degree or an equivalent qualification related to the job you’ve applied for.
  • A job offer by a US-based employer for a role requiring specialty skills/knowledge.
  • Proof from your prospective employer that there are no qualified US applicants for the position.

Your prospective employer can initiate the visa process if you meet the above requirements. You can then apply for the H-1B visa at an American consulate or embassy in your home country.

The H-1B Visa Cap

The Person in Specialty Occupation Visa is highly sought-after by foreigners who want to emigrate to the US for work. Due to the high demand for these visas, the USCIS places a cap on the number of visas it issues yearly. The current cap is 65,000 visas. Master’s and Ph.D. degree holders from US-based institutions have an additional 20,000 slots.

The H-1B visa cap doesn’t apply if you’re being sponsored by a university, a government research institute, a college/university, or a nonprofit associated with a higher education institute. Applicants who file for the H-1B visa but are in an occupation subject to the cap must electronically register with the USCIS to enter a lottery.

After registering, they must pay a registration fee and provide their personal details and basic information about the organization sponsoring them for the visa. Alternatively, an immigration attorney can create an account with the USCIS and register on their behalf. Since the registration period only lasts 14 days per year, failure to register bars you from applying for the H-1B visa. Once you register, your account will show your status as:

  • Submitted: Your registration has been submitted and is valid.
  • Selected: You can proceed with the H-1B visa application process.
  • Not Selected: You weren’t considered for the H-1B visa.
  • Denied: The USCIS reconsiders your registration invalid, which primarily happens when you register to apply for the visa with the same employer severally.
  • Invalidated-Failed Payment: You registered with the USCIS, but the payment didn’t go through.

Why You Need an Immigration Attorney?

Although you don’t necessarily need an immigration attorney for the H-1B visa application process, having one will be helpful. The process can be frustrating and complicated, and working with an experienced attorney can expedite your emigration to the US.

These attorneys have helped many other H-1B visa applicants, and know about the regular changes in rules and visa requirements. Therefore, having one could mean the difference between approval and denial. If your H-1B visa application gets denied, an immigration attorney can also help you appeal the decision.

If you’ve received a job offer from a US employer and want to apply for an H-1B visa, contact an immigration lawyer to expedite the application process.

Frequently Asked Questions

What does specialty occupation imply?

A job is considered a specialty occupation if applicants need a bachelor’s degree or higher to qualify and is too complex to be performed by individuals with lesser qualifications.

How do I qualify for an H-1B visa?

You must have a job offer from a US-based employer, and the job also needs to match USCIS occupation requirements.

Do H-1B visa holders have a specified salary?

Yes, the Department of Labor requires US employers to pay H-1B visa holders a higher salary than the actual or prevailing wage for that position.

What’s the processing time for the H-1B visa?

The LCA typically gets processed within seven days of submission, after which your employer must file the I-129. Depending on the workload at the USCIS service center handling your application, it may take three to six months for your visa to be processed.

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