H-1B Visa Overview and Process

What is the H-1B visa?

The H-1B visa is a non-immigrant visa that gives U.S. employers the opportunity to provide temporary positions to foreign workers in specialty occupations. A foreign worker must possess a bachelor’s degree or its equivalent in the specialty field.

Note; A foreign worker never has standing to apply for an H-1B visa. Rather, the employer must apply on the foreign worker’s behalf.

To qualify as a specialty occupation, the position must be in a field such as, but not limited to, biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties theology, and the arts.

What is the Labor Condition Application?

A prerequisite to obtaining a H-1B visa is a Labor Condition Application (LCA). The LCA is an application filed by the employer applying for the H-1B visa on behalf of the future employee.

The LCA must be certified by the Department of Labor (DOL), and must include the following four components: (1) wages, (2) working conditions, (3) strike, lockout, or work stoppage, and (4) notice.

Employers can submit their LCA through the DOL’s online system.

What is form I-129?

Form I-129 is submitted to U.S. Citizenship and Immigration Services (USCIS) by the employer on behalf of the employee to obtain non-immigrant visa status.

The form is used to obtain status or to change status, including:

>New Employment, for first time employment with the U.S. company or for employment in a new position
>Continuation of Employment, to continue employment of a foreign worker in the same position
>Non-material Change, if there is a non-material change in the position of the foreign worker, such as title of job change
>Additional Employment: if the foreign worker is to begin employment with an additional employer under the same non-immigrant classification
>Change of Employer, if the foreign worker will work for a new employer in the same non-immigrant classification
>Amended Petition, for material changes in the foreign worker’s terms and conditions of employment, such as an adjustment of duties

When to apply with Form I-129?

The Form cannot be submitted until six months prior to the employment start date. The earliest an employer can apply for the H-1B visa status is in April of that fiscal year. Please note, that there is a limit to how many employees are given H-1B status and thus, it is usually best if the employer applies in early April of that fiscal year.

What is the Premium Processing option?

Employers can request Premium Processing by submitting Form I-907. The process does not provide any preferential treatment in the lottery for cap-subject visas. Premium Processing simply expedites an application. According to the USCIS website, USCIS guarantees “fifteen (15) calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee.”

If the fee is refunded, the relating case will continue to receive expedited processing. The time begins from the receipt of Form I-907 and the associate fee. Form I-907 may be filed along with Form I-129 or electronically as a standalone form for a previously filed Form I-129.

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Disclaimer: Nothing in relation to the enclosed information should be construed and or considered as legal advice for any individual, entity, case, or situation. The following information is prepared for advertisement use only. The information is intended ONLY to be general and should not be relied upon for any specific situation. For legal advice on your specific situation, we encourage you to consult an attorney experienced in the area of Immigration Law.