The H-1B visa is a nonimmigrant, temporary visa for a worker with a bachelors degree or equivalent in a specialty occupation and who is paid the prevailing wage for a worker in that occupation. (It also applies to certain fashion models which we won’t discuss here.) Your employer must petition for you; you cannot self-petition. Unlike other nonimmigrant visas such as F-1 student or B visitor, the H-1B is a dual intent visa which means you can have immigrant intent. You do not have to prove you plan to return abroad to live when the visa expires. And this means an employer can petition you for a permanent, green card visa while you are in this status.
There’s a strict numerical limit or cap (quota) for H-1Bs unless the employer or employee is exempt. Employers not subject to the cap can apply at any time of year; and include:
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- institutions of higher education,
- nonprofit entities related to or affiliated with an institution of higher education,
- nonprofit research organizations, and
- governmental research organizations.
In some cases an individual employee is not subject to the cap, e.g. those who have already been counted under the cap and those who are the beneficiaries of certain waivers.
The annual limit for cap-subject visas is 65,000 employees with bachelors degrees, and an additional 20,000 for those with masters. For the past several years, the government received many more applications than the allowed number which led them to introduce a new H-1B pre-registration process in March 2020 for FY2021. Instead of submitting the entire H-1B petition from April 1, employers now pre-register for an opportunity to submit a petition. The government fee to pre-register is $10, the pre-registration period lasted 3 weeks and selections were made shortly after the period closed. If you are not selected in the first round, you may be selected later in the year.
Selection is no guarantee of getting an H-1B visa; it merely offers a chance to submit a petition which is then considered by USCIS. In the past 3 years the government has thrown up many new hurdles to H-1B approval including frequent RFEs (Requests for Evidence) questioning matters such as the occupation’s job responsibilities and level of specialization, wage level, worker’s qualifications, completion of a bachelor’s degree within a specific specialty, whether a valid employer-employee relationship exists between the petitioner and the worker, and whether sufficient specialty occupation work exists at the reported work-site. Many employers choose to pay an additional $1,440 for Premium Processing for a faster decision process.
For H-1B purposes, a “specialty occupation” is one that requires “(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
Before a nonimmigrant may be admitted to work in H-1B status in the United States, these steps must be followed, in addition to the pre-registration process if required:
- Obtain a Prevailing Wage: “The required wage rate must be the higher of the actual wage rate (the rate the employer pays to all other individuals with similar experience and qualifications who are performing the same job), or the prevailing wage (a wage that is predominantly paid to workers in the same occupational classification in the area of intended employment at the time the application is filed). In addition, an employer is not permitted to pay a wage that is lower than a wage required under any other applicable Federal, State or local law.Employers are encouraged, but not required, to obtain a prevailing wage from the National Prevailing Wage Center (NPWC). More information on obtaining a prevailing wage determination from the NPWC can be found here.” – From Dept. of Labor.
Most employers do apply to the Department of Labor (DOL) for a Prevailing Wage Determination for the position.
- The employer then completes and files Form ETA 9035 Labor Condition Application (LCA), This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer/agent. The application requires the employer/agent to attest that it will comply with the following labor requirements:
- The employer/agent will pay the H-1B worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working.
- The employer/agent will provide working conditions that will not adversely affect other similarly employed workers.
- At the time of the labor condition application there is no strike or lockout at the place of employment.
- Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of employment.
- DOL reviews the LCA for completeness, certifies it, and returns it to the employer.
- The employer submits an H-1B petition (Form I-129, the DOL-certified LCA, and supporting documents) to USCIS; Form I-129 contains both the employer’s petition and a request for action to be taken on the alien beneficiary’s status, e.g. to change the foreign national’s status from another nonimmigrant status such as F-1 student.
- USCIS approves the employer’s H-1B petition and the action being requested on behalf of the alien, i.e.:
- Changing the alien’s current nonimmigrant status to H-1B
- Extending or amending the alien’s H-1B nonimmigrant status, or
- Notifying the Department of State of the I-129 approval so the alien can apply for an H-1B visa at a U.S. consulate (unless visa-exempt) and enter the United States in H-1B status).
This summary does not do justice to the complications of the application process. There are many time limits involved on when steps must be taken, and the government is likely to question many aspects of the filing so you must take care with all details. The employee must maintain status throughout if s/he is in the U.S. In the COVID-19 era, foreign beneficiaries may be blocked from entering the U.S. by Presidential Proclamations and travel restrictions.
As an employer, it’s important to plan early, as it takes a long time and many steps to hire an H-1B employee. As a prospective H-1B employee it’s most important to pay close attention to maintaining legal status if you’re in the U.S., and to adhere to all rules and regulations that apply to your visa category.
