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:
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:
These position may qualify for an H-1B visa:
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.
In recent years, well over 100,000 new H-1Bs were filed each year for this 65,000 + 20,000 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 Lottery
For a long time, the USCIS followed its “first filed” principle when accepting new H-1B petitions. Every April 1st, attorneys rushed to file petitions for the upcoming fiscal year. Petitions received first by the USCIS got accepted. Once the CAP was reached, the USCIS would reject and return the later filed petitions. In those years, the quota usually filled up in the first few days of April.
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.
CAP registration. At this time, the USCIS required employers to register before they can file new H-1B petitions. Employers fill out a simple one page questionnaire online 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.
It is pure luck to be able to hire a new H-1B worker through the lottery. This makes the process uncertain and stressful, both for the employer who needs the worker, and for the foreign worker who needs the job.
Even after the worker starts employment on the H-1B visa, there are other regulations that must be met. H-1B visas are very highly regulated both by the Department of Labor and the USCIS. The USCIS is concerned about making sure that the employers and visa holders meet all the legal requirements of the visa. The Department of Labor wants to ensure that hiring the foreign worker will not undercut the local US job seekers’ chances of getting hired. At the same time, they also want to be sure the foreign worker is not exploited because he is dependent on the US employer for his livelihood. This has resulted in a large body of regulations that the H-1B employer and employee must comply with.
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 this section, we have tried to provide a brief snapshot of some of the complexities of the H-1B visa process. The legal process is complicated. But also the reality for employers who hire H-1B workers because they really are unable to find qualified local talent, and for the foreign worker who faces their own challenges while on a H-1B. With over 25 years of experience, we have managed and found solutions to most H-1B scenarios.
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.
Please visit our section below for details on the individual components and complexities of H-1B visas.