H-1B Work Visa

There are very few ways for people to immigrate to the United States who do not have immediate family members (spouses, parents, adult children, siblings) who are US citizens or lawful permanent residents. For most people who want to live and work in the United States, the only option available is the H-1B (the H-1B is also often used by aliens who are in the process of applying for an employment-based green card, which is a very complicated, lengthy and expensive process).

The H-1B is available to people who are being offered a job in a 'specialty occupation.' Since it is an employment-based visa, the employer needs to file the petition- an alien cannot apply on their own, and needs a job offer in order to qualify. Generally speaking, a 'specialty occupation' is one that requires at least a bachelor's-level education, which is a specific specialty. Note that it is not enough to simply have a bachelor's degree, or for the job to require a bachelor's degree - the degree needs to be in a specific field closely related to the job offer. General degrees in business or marketing usually do not qualify.

Since this is the only option available to most aliens (visitor visas are only valid for short stays, and aliens are barred from working while here on visitor visas), USCIS sees tens of thousands of applications every year. Unfortunately, there is a yearly cap of 65,000 H-1B visas issued per year. Since there are usually nearly four times as many applicants as available visas, USCIS employs a lottery system in determining which applications to consider. All applications received in the first week that filings are accepted for the fiscal year (the first week of April) are entered into this lottery. There is no way to improve your chance in the lottery, and many aliens find that their application is not selected year after year. There are an additional 20,000 visas available to aliens with master's degrees from US institutions, which have their own lottery.

A few positions are exempt from the H-1B cap, and therefore do not have to participate in the lottery. Institutions of higher education, nonprofits affiliated with institutions of higher learning and nonprofit research organizations do not have to worry about the lottery, and can therefore apply for H-1Bs at any time of the year.

There are many steps an employer will need to take before applying for an H-1B visa. The employer must (among other things) obtain a Prevailing Wage Determination, submit a Labor Condition Application (LCA) and receive approval, and provide notice to current workers. The LCA needs to be approved before filing for the H-1B, and takes a minimum of one week to process. Failure to file the LCA in time for approval by the first week of April is a common ground for denial for many employers new to the H-1B process. We highly recommend that you contact an immigration attorney and begin preparing for an H-1B filing in January or February in order to make sure everything is ready to file in time for the deadline.

Assuming that the application is chosen in the lottery and eventually approved, the earliest possible start date for an H-1B worker is October 1. Some aliens who have been here as students in F-1 status will be able to work through Optional Practical Training (OPT) until this October start date. H-1B status is valid for three years, renewable up to six. Aliens who are being sponsored for permanent residence by their employers can have their H-1B status renewed indefinitely while that process is ongoing.

Our office helps employers every year with their H-1B filings. Contact us below for more information.