Alien nationals who wish to work in the United States in a specialized job may be eligible to apply for an H-1B nonimmigrant visa.
This type of American visa falls under the category of temporary jobs in the US so if you are an alien national with a bachelor or higher degree or several years of experience in a field, you may be eligible. Our immigration lawyers in Los Angeles from the Lluis Law firm will help you with this entire process.
With over 50 years of combined experience, the firm has helped and advised hundreds of immigrants to fulfill their goals and dreams in the US Call us and schedule a personalized consultation about your case.
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Table of Contents
What is the H-1B visa in the United States?
The H-1B visa is a work visa that allows foreign nationals with a bachelor or higher degree or its equivalent in work experience to work in the United States.
This category applies to aliens who wish to serve in a specialized field, service of great merit, and outstanding ability for cooperative research projects with the U.S. Department of Defense (DOD) or for services as a fashion model of distinguished merit or ability.
This classification is divided into 3 subcategories:
- H-1B: Skilled workers;
- H-1B2: DOD development project researchers and workers;
- H-1B3: Fashion models.
How does the H-1B visa work?
H-1B visas function as work permits for alien workers to obtain employment in the US for a specified period of time. This visa basically gives US companies or employers the ability to hire foreign nationals for a specialized job position.
H-1B visa eligibility criteria
To be eligible you must meet the following:
- Possess a bachelor degree or higher in a specialized field (or its equivalent) and;
- Have extensive specialized knowledge (theoretical and practical).
The position must meet one of the following criteria:
- The alien must have a bachelor degree, postgraduate degree or its equivalent;
- The need for a bachelor degree is common in the industry, or the job is so complex that it can only be performed by an individual with a degree;
- The employer requires a degree or its equivalent for the job position;
- Job duties are so complex that the knowledge required to perform them is associated with a bachelor degree or higher.
In order for the immigrant to be eligible to accept a specialized job offer, they must meet one of the following requirements:
- Have a bachelor degree obtained abroad that is equivalent to that of the US;
- Have a degree from a recognized US university or institution;
- Possess an unrestricted state license, registration, or certification that allows them to fully perform a specialist position and work in that specialty;
- Have specialized training, education or experience of progressive responsibility and recognition of their ability through progressive positions related to their specialty.
Eligibility for the H-1B2 visa:
- The job requires a bachelor degree, higher degree or its equivalent and be accompanied by:
- Letter from the DOD project manager confirming that the recipient will work on a cooperative research and development project under a DOD-administered government-to-government reciprocal agreement.
- General description of the beneficiary’s duties on the project and the dates of the beneficiary’s employment on said project;
- A statement indicating the names of the aliens hired on the project in the US, their dates of employment, and the names of the aliens whose employment on the project ended in the previous year.
- Aliens must show that they have a bachelor degree, postgraduate degree or its equivalent in the occupational field where they will perform the services. This can be evidenced by one of the following:
- US college degree or higher from an accredited university;
- Foreign degree that is equivalent to a US degree or a higher degree from an accredited university;
- Unrestricted state license, registration, or certification allowing you to perform job duties;
- Have the needed education, specialized ability, or experience in the specialty that is equivalent to completion of a US bachelor degree or higher. In addition, they must be recognized in the specialty through employment.
This classification does not require an LCA.
Eligibility for the H-1B3 visa:
For this classification, those aliens who have experience in modeling and have recognition, merit and aptitude in this area are eligible.
For this visa, the employer needs to process the LCA through form ETA-9035/9035E certified by DOL together with form I-129.
How to apply for the H-1B visa in 2023?
The process of obtaining the H-1B visa is similar to other sponsorship visas, which is the following:
- The alien worker must find a US employer for the H-1B visa;
- For its part, the employer must request and receive certification from the DOL of an LCA;
- Once approved and obtained, the employer must file Form I-129 with USCIS;
- After USCIS approves the I-129 petition, the immigrant worker must apply for the H-1B visa through the Department of State (DOS) at a foreign US embassy or consulate.
The application for the H-1B visa by the worker must follow these steps:
- Complete Form DS-160;
- Submit a photograph that meets the photo requirements;
- Pay the visa application fee;
- Schedule the visa interview with the US embassy or consulate;
- Attend the interview.
Documents required to apply for the H-1B visa
Both the employees and the employer need to carry the following documents to process the H-1B visa:
Documents by the immigrant worker:
- Birth certificate;
- Passport with at least 6 months validity;
- I-94 permit, if you received it when you entered the US;
- Copies of university transcript(s);
- A copy of the following documents:
- Curriculum vitae;
- Any educational certificate or diploma;
- Any application for the H-1B visa that you have previously filed with USCIS.
- Letters of recommendation, can be from:
- Current Employer;
- Previous Employer;
- Previous instructors or teachers.
Documents from the employer:
- Job description mentioning the duties and responsibilities of the job position;
- Sponsorship letter with job offer, position and salary offered;
- Tax identification number;
- Telephone numbers, fax, address and emails of the company involved in the application for the H-1B visa;
- Copies of the following documents:
- Tax returns or financial statements showing the financial capacity to pay the worker the salary offered;
- State-registered company articles of incorporation.
- Name and occupation of the direct supervisor;
- Description of the company and the date of commencement of business activities;
- Marketing material detailing the sponsor and their business.
What is the labor condition application (LCA) like?
This application needs several requirements, which if not completed correctly may result in fines, prohibitions from sponsoring immigrant or non-immigrant petitions, and other sanctions for the employer. Employers must certify that they will meet the following job obligations on the application:
- The H-1B visa worker will be paid a salary no less than that paid to similarly qualified employees.
- They will provide working conditions that will not affect other workers in similar jobs.
- Notice of LCA filing has been delivered to the union bargaining representative or posted at the place of employment.
- At the time the LCA is filed, there is no strike or lockout at the migrant worker’s workplace.
Can family members of H-1B visa holders accompany you?
Spouse and/or unmarried children under 21 years of age may apply for admission to the US under H-4 nonimmigrant classification.
As of May 26, 2015, some spouses in H-4 status may file Form I-765, Application for Employment Authorization, as long as the H-1B visa holders have started the process of applying for permanent residence based on in employment.
Family members of the H-1B visa applicant have the opportunity to live and study in the US by obtaining a derivative H-4 visa. The validity of this visa is the same as the H-1B holder’s visa.
Our experienced immigration attorneys will be able to assist you in this process, answering your questions under professional consultation.
How long is the H-1B visa valid for?
The H-1B visa is valid for 3 years. However, the time period of this visa can be extended to no more than 6 years in total.
If the employer dismisses the migrant worker before the end of his/her period of stay, he/she will be responsible for covering the costs of transportation back to the alien’s country of origin. If the migrant worker voluntarily quits their job, the employer will not be responsible for covering these costs.
How many times can the H-1B visa be extended?
Generally, the H-1B visa can be renewed as many times as necessary until the alien completes the 6 years allowed. The beneficiary may also be eligible for additional extensions if they meet the appropriate requirements.
Steps to transfer from an H-1B visa to a Green Card
- Obtain the PERM Labor Certification.
- Complete Form I-140, Immigrant Petition for Immigrant Worker.
- File Form I-485 to adjust status.
Each of these steps and forms require separate procedures. As with applying for the H-1B visa, the process begins with the PERM application submitted by the employer or sponsor.
How long does it take to switch from an H-1B visa to a Green Card?
The Green Card can be obtained in various ways. These are some:
- US family-based immigration.
- Political asylum in the United States.
- Cuban Adjustment Act.
- Green Card based on diversity.
The skilled worker visa is a dual intent visa. This means that it is sought in some way that the holder can become a legal permanent resident. You can then opt for US citizenship by naturalization.
Applying for or transferring from an H-1B visa to a US Green Card involves another administrative process. This process can currently take years due to the accumulation of immigration files.
The processing of a Green Card must be done correctly to avoid errors that are detrimental to the desired purpose. That is why it is always recommended to have the expert help of an immigration lawyer specialized in H-1B visas. In this way the process can be less complicated and more expeditious.
How much does the H-1B visa cost?
In addition to the $190 for the H-1B visa application at the embassy, other additional fees that may include this visa are:
- I-129 filing fee: $460;
- Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee;
- $750 for employers with 1 to 25 full-time workers;
- $1,500 for employers with 26 or more full-time workers;
- Fraud detection and prevention fee: $500;
- Public Law 114-113: $4,000 for employers who hire 50 or more employees in the US and where more than half of the employees have an H-1B or L-1 visa;
- Premium Processing service fee: $2,500.
- Electronic registration system fee: $10.
Filing the H-1B Petition
The preferred order of these documents at the time of filing is:
- Form I-907, Request for Premium Processing (This is optional, if you are requesting to expedite the processing time of the H-1B visa);
- Form G-28, Notice to Appear as Attorney or Authorized Representative (if represented by attorney or representative);
- I-129 Petition;
- H Classification Supplement to the I-129 petition and/or the Free Trade Supplement (for H-1B Chile – Singapore petitions);
- A table of contents for additional documentation, such as:
- Form I-94, arrival/departure record, if the beneficiary is in the US;
- Form I-566, Interagency Record of Applications, if the beneficiary is an A or G nonimmigrant;
- SEVIS DS-2019 document, if the beneficiary has a current or previous J-1 or J-2 visa;
- DOL certified LCA;
- Letter(s) from employer, attorney or representative;
- Other documentation that supports the request.
Frequently asked questions about the H-1B visa
H-1B visa processing began on April 1 and concludes in October. When the visa is processed and approved, workers can travel to the US and begin work.
The lottery is a process in which USCIS randomly selects applicants who will receive an H-1B visa. The employer has a timeframe to file the H-1B petition with USCIS. If selected, USCIS will notify the employer.
Participants in the Electronic Diversity Visa Lottery can review the results on the program’s website. They should go directly to the Entrant Status Check section to confirm that they have enrolled. They must put the confirmation number that they give you when presenting the papers.
The registration for the H-1B visa lottery application was made between March 1 and 18, 2022. Therefore, the deadline for this application was until March 18.
The maximum number of H-1B visas issued per fiscal year is 65,000. There is an additional 20,000 visas exempt from this cap for beneficiaries with a master’s degree or higher from an institution in the U.S.
In addition, H-1B workers employed by an institution of higher education, affiliates, nonprofit organizations profit, government scientific research or non-profit scientific research, will be exempt from this limit.
For more information regarding this, visit the following link to USCIS.
It is a red number that is located in the lower right part of the visa. When the visa is approved, the consular officer stamps the visa or attaches the document to one of the pages of the passport.
Sponsorship is the request and obligation that a US employer assumes with a professional immigrant worker. Such sponsorship consists of taking charge of the worker from the labor point of view.
For this reason, the petitioner is required to previously present proof of his employment status to verify his solvency and capacity.
You must access the following link to USCIS to check the status of the application. When you are on the website, you must enter the 13-digit receipt number issued by the system without spaces when accepting the visa petition. Then click on “check status”. 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.
The reason an H-1B visa application is denied is because the employer does not appear to be a real, legal, or an operating US business with the ability to hire and pay H-1B visas to alien workers.
Aliens in H-1B status who have applied for an I-140 or LCA/PERM petition before the first day of the sixth year and the application is pending or approved, may be eligible to extend their H-1B visa for a seventh year.
You must immediately depart the US once your employment ends or your H-1B visa expires. Certain visas allow a period of time for the alien to leave the country, such as the F-1 US student visa. However, the H-1B visa does not offer this time frame, so you will need to leave the country at the end of the visa.
There is no limit to changing employers if you are under this visa. However, there are certain validity periods. Consult with our lawyers to know them.
This visa is a broad and sometimes complex issue. However, you do not have to worry, we are here to help you.
Our attorneys have over 50 years of combined experience dealing with all main US visas. Call today and book your professional consultation so that we can clear your doubts about any type of visa or immigration matter.
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