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An Overview of the H-1B Process

The H-1B visa is one of the most utilized visas by employers to bring foreign talent to the U.S. The H-1B program is intended to allow employers to hire foreign workers temporarily, where such skills cannot be found domestically.

The H-1B program is available for specialty occupation workers and fashion models of distinguished merit and ability. This article will focus on specialty occupation workers only.

Qualifying criteria

There are broadly three qualifying criteria for an H-1B:

  • Sponsoring entity must be a U.S. employer or agent;
  • The position being filed for must qualify as a specialty occupation; and
  • The foreign worker must be qualified to perform the duties of the position.

What is specialty occupation?

To qualify as a specialty occupation the foreign worker must be coming to the U.S. to work in a position that requires the following:

  • Theoretical and practical application of a body of highly specialized knowledge and
  • Attainment of a bachelor’s or higher degree in the specific specialty or its equivalent.

What this means is that a foreign worker must be working in a position that requires at a minimum, a bachelor’s degree in a relevant field, and that the duties of the position require the application of knowledge from that degree to perform the role.

United States Citizenship and Immigration Services (USCIS) will refer to the information published by the Department of Labor to determine whether the position being filed for typically requires a bachelor’s degree. If it doesn’t then it will be difficult to obtain approval for an H-1B, unless it can be demonstrated that the job duties are sufficiently complex that only someone with a bachelor’s degree can perform them.

H-1B application process

To apply for an H-1B it is necessary to go through a lottery process.  Per fiscal year there are 65,000 visas available for candidates with a bachelor’s degree and another 20,000 visas available for those with a master’s degree or higher.

The lottery process starts March 1 of each year and runs through the month of March.  From March 1 until March 20 employers are allowed to submit an electronic registration for each eligible candidate and then shortly after March 20 USCIS will run the lottery and let employers know which of their employees have been selected. From April 1 until June 30, employers can then file an H-1B petition for adjudication. In 2021 USCIS ran a second and a third lottery because they needed to select additional applicants.

If the applicant is in the U.S. in another status, such as F-1, the employer can request a change of status, which typically would take effect on October 1st. If the applicant is outside of the U.S., they will be required to go to the Consulate for an interview in order to obtain an H-1B visa stamp in their passport.

Wage requirements

Following selection in the lottery and as a part of the application process Employers are required to file a Labor Condition Application (LCA), which is submitted with the application. On the LCA the employer selects a code, which most closely matches with the occupation, and a wage level, depending on the requirements for the position. By signing the LCA the employer is attesting to pay the foreign worker the prevailing wage. Failure to pay the wage for the duration of the H-1B is considered a violation and could result in penalties from the Department of Labor (DOL).

Duration of the H-1B

An H-1B is typically approved for 3 years and an applicant is entitled to a maximum of 6 years on H-1B (only includes time spent in the U.S.) in H-1B status. However, an applicant can extend beyond 6 years if their employer initiates the green card process for them.

Dependent spouses and children under 21 are eligible for H-4 status. Under certain circumstances H-4 spouses may be eligible to apply for an employment authorization.

Filing fees

In addition to paying an Attorney fee (varies from Attorney to Attorney) the employer will be required to pay the following filing fees to USCIS (only if the application is selected in the lottery):

  • $460 filing fee;
  • $500 Fraud fee;
  • $750 training fee if 25 employees or less or $1500 if 26 or more employees;
  • $2500 Premium process fee (optional); and
  • $4000 public law fee if employer employs more than 50 employees and more than half of employees are in H-1B, L-1A or L-1B status.

For more information on the H-1B program please contact PLG Partner Chris Prescott at cprescott@patellegal.com.

You can also check our previous article which addresses frequently asked questions:

https://www.patellegal.com/h-1b-frequently-asked-questions/

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