Filing an H-1B visa is a complex process. Regulations change frequently. Below is a brief overview of the process.
The H-1B visa was created in 1990 to allow US employers to hire foreign nationals to fill positions in engineering, computer science and scientific research. These fields were expanding rapidly, and the number of American students graduating from college was insufficient to fill all vacant positions. To keep the US competitive globally, the only option Congress had was to allow US companies to hire foreign workers.
Though the visa was supposed to be a temporary fix, the continuing explosive growth in these industries and the lesser number of US college STEM graduates have kept the need for H-1B workers high.
To qualify for an H-1B visa
Who Qualifies – The Definition of “Specialty Occupation”
The H-1B visa is for specialty occupations only. A specialty occupation is one where the worker needs a ...
...college-level education in a specialized field to perform the job.
The following positions always qualify for an H-1B visa:
Other position may qualify for an H-1B visa, depending on how complex the job is:
To read more from the government, please click here.
At present, US employers can file first-time H-1B visas for 65,000 bachelor’s and 20,000 US master’s degree holders. First-time H-1B visas are for people who have not held an H-1B visa in the past 6 years.
Along with first-time H-1B workers, employers are allowed to extend the H-1B visas of workers who are already employed on H-1B visas.
The Annual H-1B Visa Lottery
In recent years, well over 100,000 new H-1Bs were filed each year for this 65,000 (bachelors' degree holders) + 20,000 (US Masters' degree holders) quota. For example, in April 2022 USCIS received over 400,000 registrations for FY 2023. To decide who will get an H-1B, the USCIS runs a lottery each year.
Evolution of the Annual H-1B Lottery
For a long time, the USCIS followed its “first filed” principle when accepting ...
For the next few years, the USCIS collected all the filings in a given time period and then ran a lottery to decide which of the petitions would be accepted for processing.
Current H-1B CAP Registration Process
At this time, the USCIS, the government agency that processes visas within the US, requires employers to register online before they can file new H-1B petitions. Employers fill out a simple one page questionnaire on USCIS's website instead of sending in a complete petition by mail. The USCIS’s computer randomly picks 65,000 regular and 20,000 US Masters degree holders out of the registrants. The employers then have 3 months to submit their petitions.
USCIS maintains a page on their website where they provide latest statistics on H-1B CAP filings. This page is also updated with filing procedures every year to help employers with H-1B lottery submissions.
Employers can also extend H-1B visas for employees who are already on H-1B visas.
If you have filed a H-1B petition for a foreign national, you can always check status of the petition on the USCIS’ website.
If the petition is taking longer than expected, you can check the USCIS’s current processing time to ensure that your case is still within normal processing times.
Once the H-1B file is approved, the foreign worker goes to the US consulate to get the visa issued. The USCIS transmits a copy of the H-1B filing to the Department of State and the local US consulate closest to the foreign national’s home. The foreign national then has to then schedule an appointment with the consulate to get the H-1B visa issued to them.
If the foreign worker is already in the US on a different visa, they can request a change of status to start work. USCIS will issue a new I-94 to them along with the H-1B approval notice. This allows the H-1B worker to start work on the "start date" listed on the approval notice without having to travel to the consulate to get the H-1B visa issued.
Initial H-1B visas are issued for 3 years and can be extended for a total of 6-years. Employers can continue to file for extensions even after these 6 years if they have already filed for permanent residency (green card) for their H-1B employee.
H-1B Visas are complicated. There are many challenges that employers who are sponsoring, and workers who are being sponsored face. At Immigration Desk, we believe in always putting our client's interests first. We take the time to know you and your case, and after focusing solely on Business Immigration Law for over 25 years, our experienced attorneys are excellent at spotting problems. We then resolve them even before a case is filed, so the application process is smooth and the visa approval comes in on time.
We represent both employers and employees in the H-1B process. For ease of navigation, this section is divided into 3 parts
After filing thousands of H-1B petitions for over 25 years, we find that the following are the most pressing concerns that our corporate clients face.
In the section above, we have tried to provide a brief snapshot of some of the non-legal, real-world challenges of the H-1B visa process. In addition, the legal process is also complex, since the H-1B rules and regulations evolved over time. The brief and concise regulations that were initially written in the 1990s bear little resemblance to the patchwork of statutes, regulations, policy memoranda and case law we now have to work with. With over 25 years of experience, and an almost perfect approval rate after filing thousands of H-1B petitions, our dedicated attorneys have found solutions to almost every H-1B challenge. We believe in doing whatever it takes to make the process easy, straight-forward and cost effective for our clients. Simply put, our clients come first. Always.
For H1B Employers
We routinely help large companies file high volumes of H-1B visas as well as help smaller and medium-sized companies who need fewer employees, or need more individualized services. We routinely also represent employees.
Since we are familiar with H1B trends and what new laws are expected, we help our corporate clients plan their H1 workforce, starting from helping screen prospective candidates to helping provide a salary range for a particular job. We help our clients plan the timing of the H-1B visas and gaps in employment when the new employee’s student visa is lapsing.
Sometimes our larger clients want to outsource all their visas to us, or have us perform in-house audits. We help train HR staff on immigration compliance and help perform internal audits to meet with regulatory requirements. To make the process streamlined, our paralegals can directly collect documents from new hires, and our top-of-the-line case management system make the process efficient.
Sometimes our clients are filing for their first H-1B visa and need guidance on what their responsibilities are. Or, the position is non-technical, and we have to flush out the job description to make sure the position qualifies for an H-1B. We take pride in guiding and helping our clients grow their businesses or move seamlessly to a new job. We use our years of experience and high success rate to help you achieve the right visa each time.
For H1B Workers
We represent a large number of H-1B workers as well. Many come to us because they want to hire their own attorney, or because the employer's attorney is never available to them. In the more recent years, our team has gained a well-deserved reputation for being able to get challenging H-1Bs approved. A lot of workers approach us when they receive a Request for Evidence.
We like making cases routine, but thrive on the approval we win on tough cases.
In the next few months, we will be adding a lot of legal information in the table below. Please visit our section below for details on the individual components and complexities of H-1B visas. We look forward to hearing your comments and adding information based on what you want to read most!
Read about our featured award-winning founding attorney, Anu Gupta. Please contact us if we can help make the immigrant journey easier for you!