To apply for an H-1B work visa for non-immigrant aliens it is necessary to meet a series of requirements. In this article we explain who qualifies, the procedures, documentation, processing time, fees and everything related to the topic.
Immigration lawyers in Los Angeles at Lluis Law are specialists in all types of visas for the USA. Through more than 40 years of legal services we have helped hundreds of professional workers obtain the Green Card.
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What is the H-1B visa?
The H-1B visa in the US It is one of the most popular to live and work in the country. It is for foreign employees who carry out specialized work in various areas. That is why it is also called a specialized occupation visa.
Includes cooperative research activities with the United States Department of Defense (DOD) and work on development projects. Also to professional haute couture and catwalk models who perform advertising work.
The H visa is divided into several categories, depending on the type of worker and service area:
- H-1B: for specialized workers.
- H-1B2: for researchers and workers of DOL Development Projects.
- H-1B3: for fashion models.
Requirements to apply for the H-1B visa
The general requirements to obtain the H-1B visa include the following documentation:
- Passport valid until six months after the time of residence in the USA expires.
- Processing and confirmation of the Electronic Non-immigrant Visa Application, Form DS-160. This document must be submitted on the day of the interview at the local US consulate or embassy.
- A recent 5 x 5 cm or 2 ”x 2” photograph.
- Bank receipt for non-refundable payment of the visa processing fee of US $ 190.
Other important documents
The following documents must be submitted by the visa applicant to the USCIS:
- Birth certificate.
- Form I-94 (if received when entering the United States)
- Copies of university academic records (study programs and qualifications).
- Copy of the university degree (black background) and any other certificate or diploma obtained.
- Letter from the US employer with a job offer. Must include position and salary offered.
- Letters of recommendation from current and former employers. Although these documents are not required, it is advisable to submit them. Even recommendations from previous instructors and / or teachers if possible.
While the employer – sponsor must present the following documents to process the H1-B visa:
- Description of the job for which you are hiring the alien employee. Duties and responsibilities, experience and education of the worker and his qualification must be specified.
- Current financial statements. It can include a general financial balance, also income statement and tax returns. These documents seek to demonstrate the employer’s ability to pay.
- Personal and company data. It includes: address, telephone, tax identification number, description of the company and start date of activities. Also number of employees with H-1B visas and brochures describing the purpose of the company.
Who qualifies for the H-1B visa?
Eligibility criteria for H-1B visa applicants and requirements depend on the visa category applied for.
H-1B visa: For specialty occupations, alien professionals with special talents and knowledge may apply in other areas. Examples: Engineering, architecture, chemistry and accounting, among others.
H-1B2 visa: Researchers and professionals related to the defense area apply.
H-1B3 visa: Professional fashion models working for important designer firms and advertising agencies.
How does the H-1B visa work?
Each of these variants of H-1B US visa have little differences in terms of their processing, function and requirements.
H-1B for specialty occupations
Professionals who qualify for this visa category must meet the following criteria:
- Possess a bachelor’s university degree (minimum 4-year degree), postgraduate or its equivalent. The complexity of the jobs they perform typically requires an advanced level degree. To be eligible in this visa category, you must meet any of the following criteria:
- Have a complete bachelor’s degree from a recognized university in the United States.
- Possess a university degree (baccalaureate or postgraduate) at a foreign university. That degree must be equivalent to that issued by a US university in the same specialty.
- Possess a full license, registration or unrestricted certification issued by the state to practice the specialty.
- If you do not have a university degree, you must have sufficient educational preparation, training and / or experience in the specialty. The visa applicant must have progressively accumulated that experience in positions of responsibility in that specialty.
- In order to process the visa, the employer must request LCA employment status and make the worker’s request (Form I-129).
H-1B2 for DOL researcher and development project workers
To obtain an H-1B2 visa, the following eligibility criteria must be met:
- Participate in a cooperative research and development project. Projects that result from agreements between governments administered by the United States Department of Defense also qualify.
- It requires a university degree (baccalaureate or postgraduate) issued by an accredited university, or its equivalent abroad.
- The eligibility criteria for the applicant for this visa category are as follows:
- Have a university degree completed with a degree (bachelor or postgraduate) or its equivalent at a foreign university. This title must be in the specialized work area.
- Possess a full, state-issued, unrestricted license, registration or certification to work in the area of competence.
- If you do not have a university degree, you must have sufficient educational preparation, training or experience in that specialty. In addition to having progressively escalated positions of responsibility in the area of competition.
- To process this visa, the employer does not need to apply for LCA employment status.
H-1B3 for fashion models
Professional models working for recognized firms qualify for this service or job. Those with modeling experience and national and international recognition in that area are eligible.
For this visa, the employer requires to process the Application for Labor Condition (LCA), through Form ETA-9035. In addition to the petition – Form I-129.
H-1B visa application process in 2020
To apply for the H-1B visa, you must first have a US employer – sponsor who makes the request. The employer must make prior arrangements with the Department of Labor (DOL) to obtain the Foreign Labor Certification.
Here are the steps to start the H-1B visa process in the United States:
1. The employer files a Labor Condition Application (LCA ). This is done in the name of the alien worker who is being petitioned. It is the same case for the variants of this visa, the H-1B1 (citizens of Chile and Singapore) and E-3 visas (Australian workers).
The LCA application is processed before the DOL through Form ETA-9035. This form must be filed along with Form I-129, Petition for Non-immigrant Worker. After the Department of Labor approves LCA, the employer receives a Certification of Foreign Labor. In other words, an LCA certificate.
2. Submit form I-129 to USCIS by the employer. The Foreign Labor Certification (LCA) is filed along with form I-129.
California employers – sponsors must submit the alien worker’s request to the California Service Center (WAC). To check the visa processing times please visit the following link from USCIS .
Form I-129 must contain the same information provided for the LCA application. The petitioner must also indicate the LCA case number that appears at the bottom of this approved document.
3. After the foreign worker’s petition is approved by USCIS, the H-1B visa application process begins. The foreign applicant must apply through the website of the local US consulate or embassy.
How to obtain the labor condition (LCA)?
To obtain the LCA certification for the professional with specialized jobs and fashion models you must meet certain requirements. The employer must certify full compliance with some job requirements such as:
- Payment of wages similar to those of any other worker with a similar qualification. If this is higher, then adjust it to the average compensation paid for that position in the region or state where you will work.
- Offer the employee working conditions that do not negatively affect other workers who perform similar jobs.
- Attest that at the time of filing the application, there was no strike or closure at your company.
- Attest that from the application it will notify the workers of the company and the requested foreign worker. To this end, you must provide a copy of the request.
When is the deadline for the H-1B visa application?
H-1B visa petitions must be filed in the previous year. In other words, for H-1B visas in 2021, petitions must be submitted between April 1 and June 30, 2020.
The visa application period for foreign workers is open for 90 days.
How much does the H-1B visa cost?
The costs of processing the H-1B visa for both the employer and the alien applicant are:
- Payment of fees for the petition of the foreign worker (form I-129). Companies with more than 25 full-time employees must pay $ 2,325. While those with a payroll between 1 and 25 employees, pay US $ 1,575.
- The fees for the forms are paid by the employers. It is considered illegal to ask the foreign worker to pay all or part of this expense.
- If you use an attorney to make sure that the entire visa application process is done correctly, you will have to pay your fees as well.
How long does it take to process an H-1B visa?
H-1B visas are processed regularly within 5 months at California and Nebraska service centers. The average ranges from 2.5 to 4.5 months, but there are other processing centers where this time is longer.
However, there is a random selection to process these visas called the H-1B visa lottery. So sometimes the visa applicant can be selected and get the visa sooner.
However, USCIS gives preference in the processing of H-1B visas to graduates of US universities.
Only 65,000 applications enter the selection. When the number of requests is greater, a random selection is made of the 65,000 requests. Those applications that are not processed are returned to the employer along with the fees paid.
Employers cannot file more than one petition per employee. When USCIS detects this irregularity, it denies the request and does not return the fees.
Premium H-1B visa processing
Through this procedure, visa processing times are reduced to just 15 days. If the visa petition is not processed within that period, USCIS returns the paid pass to the employer.
Premium processing has an additional cost of US $ 1,225. To choose this option, you must file form I-907 as well, along with the other forms.
Accelerated processing of H-1B visas
This procedure only applies in special cases. Then the employer-sponsor will have to justify to USCIS the reasons for your urgent request because:
- The employer or worker may incur or already have a large financial loss.
- There is an emergency situation that warrants it.
- There are strong humanitarian reasons.
- An American nonprofit organization makes a visa petition that favors the country’s cultural and social interests.
- A US government agency makes the request and is in the best interests of the Department of Defense.
- USCIS made a mistake in processing the visa.
- The petition is considered by USCIS to be of great interest.
When is the H-1B visa lottery?
DV-2020 (Diversity Electronic Visa Lottery) participants can review the results on the program’s website. They should go directly to the Entrant Status Check section to confirm that they have been enrolled. It is searched with the confirmation number given when submitting the papers.
Starting May 5, 2020, the names of the DV-2021 lottery winners will be published.
Validity and extension of the H-1B visa
The duration of H-1B visas is 3 years and you can apply for a visa extension for a total of 6 years. The H-1B visa also allows certain people to apply for an extension for an additional year.
This resource is known as “seventh year extension.” For an additional extension, a new application for labor certification (LCA) must be submitted before the end of the sixth year.
If the LCA application is approved, it is possible to file a petition for residency for employment (form I-140). One of the most important benefits of this visa is that it allows you to apply to obtain the Green Card.
The residence card can be processed even after completing one year with the H-1B visa.
How long is the H-1B visa valid being unsealed?
An H-1B worker can continue to work in the United States for his current employer after his visa expires. The 240-day rule establishes that the foreign worker has this additional period to remain in the country. As long as you are waiting for a response from the USCIS for a visa extension request.
If at the end of this period you do not receive a response then you must leave the country. But with the timely help of a good immigration attorney this will not be necessary. The expert H-1B visa attorneys at the Lluis Law firm in Los Angeles always offer alternatives.
How many times can it be extended?
For H1B visas from foreign professionals you can only request an extension for another 3 years. They are 6 years in total under H-1B status. Although exceptions apply to request an extension for an additional year.
When one goes from one visa status to another, the years of the previous visa are also added. A worker moving from L-1A status to H-1B status, after 2 years, would only have 4 years remaining in H-1B status.
How long does it take to transfer the H-1B visa to the Green Card?
The Green Card can be obtained in various ways. These are some:
And there is the green card through the H-1B. The skilled worker visa is a dual intention visa. This means that some way is sought that the owner can become a legal permanent resident. You can then apply for US citizenship by naturalization.
Applying for or transferring an H-1B visa to a Green Card for the United States involves another administrative process. This process may currently take a year due to the accumulation of immigration records.
The processing of a Green Card must be done correctly to avoid damaging mistakes for the desired purpose. That’s why it’s always recommended to have expert help from an immigration attorney specializing in H-1B visas. In this way, the process can be less complicated and more expeditious.
The steps to transfer an H1B visa to the Green card are:
- Obtain PERM Labor Certification.
- Complete Form I-140.
- Submit Form I-485, to request adjustment of status.
Each of these steps and forms require separate procedures. Like applying for the H-1B visa, the process begins with the PERM application submitted by the employer – sponsor.
If you need to apply to obtain a green card, our immigration attorneys can help you. You just need to call and request a free consultation.
Why can the H-1B visa be rejected?
Some foreign professionals wonder why the H-1B visa was denied. The two most common reasons why an H-1B visa application is denied are:
- Failure to demonstrate sufficient family and social ties to the country of origin that bind the applicant.
- Submit an incomplete, erroneous or false information request. Sometimes also for not carrying the required documentation on the day of the interview at the embassy.
However, since 2019 the U.S. government has been increasing denials of H-1B visas. This is in keeping with President Donald Trump’s tightening of immigration policy.
The standard for companies hiring foreign labor was raised a lot. Especially for those who work with other subcontractor companies. The government has argued that the goal is
“Protect the interest of American workers.”
Foreign applicants for H-1B visas must now work in a ‘specialized occupation’. It is not enough to have a professional degree or experience in a branch of knowledge. Large technology companies have been one of the most affected by this new policy.
Frequently asked questions about the H-1B visa
Below we answer many of the frequent questions we receive at the office. We recommend checking the article because knowledge is key in these matters.
If you do not find the answer you are looking for, do not worry and contact us. Our expert lawyers will be your best ally.
When does the H-1B visa process start for 2020?
Processing of the H-1B visa begins on April 1 and ends in late October. After the visa is processed and approved, workers can travel to the US and start working in October.
What is the H-1B visa limit?
The H visa is limited, only 65,000 visas are issued annually for professionals with a university degree. Beginning in 2005, Congress authorized the issuance of another 20,000 visas for professionals with a master’s degree in the United States. However, certain H-1B visas are not subject to an annual limit.
It is recommended to apply for an H-1B visa on a previous date but close to April 1. This is because USCIS begins accepting applications for these visas from that date. In this way, the chances of obtaining a visa are greater.
What benefits does the H-1B visa offer to family members?
Family members of the H-1B visa applicant have the opportunity to live and study in the U.S. when obtaining an H-4 derivative visa. The validity of this visa is the same as the holder’s H-1B visa.
What is the status of the H-1B visa?
Currently, H-1B visa status for holders is for a period of 6 years maximum. Before expiring you can apply for an extension or apply for a green card.
What is the H-1B visa number?
It is a red number that is located at the bottom right of the visa. When the visa is approved the consular officer stamps the visa or attaches the document on one of the pages of the passport.
What is H-1B visa sponsorship?
Sponsorship is the request and obligation assumed by a US employer with the professional foreign worker. Such sponsorship consists of taking over the worker from the labor point of view.
For this reason, the petitioner is required to previously present a certificate of Labor Status to verify their solvency and capacity.
Where to check the status of the H-1B visa?
The following USCIS link must be accessed to check where the application is. When you are on the website do the following:
- Enter the 13-digit receipt number issued by the system when accepting the visa petition. This number must be entered without spaces.
- Click on the “check status” button. There it will show you the status of the H-1B visa petition.
You can also ask USCIS to notify you by email and what to do when the case changes status.
As you can see the H-1B visa is a large and sometimes complex topic. Don’t worry, we are here to help you. Our attorneys have been dealing with all 185 american visas for over 40 years.
Call today and we can answer your questions about any type of visa or immigration matter.