From engineers to educators, architects to bankers, and budget analysts to neurosurgeons, there are times when United States employers must temporarily hire foreign college-educated professionals due to their specialized skills. To be hired, interested foreign specialists must compete for an H-1B Specialty Occupation Visa (H1-B visa).
Additionally, certain other individuals, such as those engaged in government-to-government research and development or those involved in certain types of projects through the United States (U.S.) Department of Defense, may be eligible for this type of business visa.
What is the H-1B Visa?
The H-1B visa is a nonimmigrant visa. It is not intended for people who want to come to the U.S. to obtain a green card and pursue naturalization and citizenship. The H-1B visa is valid for three years and can be extended for up to six years.
The H-1B Visa offers a rare opportunity for foreign workers with specialized skills to find employment within the U.S. Designated to facilitate industry growth within the U.S., the H-1B visa program allows U.S. companies and employers to seek out and employ highly skilled and educated individuals from abroad.
The H-1B Visa Cap
Given the increasing numbers of foreign workers seeking a limited number of H-1B visas, the visas have become increasingly desirable and challenging to acquire. U.S. Citizenship and Immigration Services (USCIS) issues 85,000 H-1B visas annually in two distinct categories.
- Regular Cap – The “regular” or general cap applies to most foreign-born applicants. These applicants typically possess specialized skills and knowledge received from institutions outside the U.S. The U.S. Congress has set an annual cap of 65,000 H-1B visas.
- Advanced Degree Cap – The advanced degree cap applies to applicants who received their advanced education in the U.S. These individuals must have earned a master’s degree or higher from an accredited U.S. university. Congress sets the cap on these visas at 20,000 per year.
To be eligible for the H-1B visa, you will need:
- A job offer from a U.S. employer for a role that requires specialty knowledge
- Proof of a bachelor’s degree or equivalent in that field
- Your employer must show that there is a lack of qualified U.S. applicants for the role
Employers and prospective employees who wish to apply for an H-1B visa must determine eligibility in advance before applying. While petitioners can check the existing criteria, identifying eligible candidates can still be challenging. Consulting with an H-1B visa lawyer can help clarify whether a worker with specialized skills who desires employment in the U.S. qualifies for the H-1B visa process.
Notably, individuals denied H-1B visas in the past might be ineligible to apply for the visa again within six years of their denied application. Consulting with an H-1B visa attorney near you can help you learn more about the eligibility of visa applicants and the terms of their current status as specialized workers in the U.S.
H-1B Electronic Registration Process
The USCIS implemented an electronic registration system for the H-1B cap in 2020. To file H-1B cap-subject petitions, including those for beneficiaries eligible for the advanced degree exemption, prospective petitioners must first register electronically and pay the $10 H-1B registration fee for each prospective beneficiary.
The USCIS opens this initial registration period for a minimum of 14 calendar days each fiscal year. Selections will occur after the initial registration period concludes, so registration is not required on the day initial registration opens. Only those with selected registrations will be eligible to submit H-1B petitions subject to the cap.
What Happens Next?
If you have been selected to apply for an H-1B visa, your employer can initiate the process by submitting a petition on your behalf. First, the applicant must be the subject of an approved Form I-129 (Petition for a Nonimmigrant Worker), filed by an employer who is sponsoring the application and offering the visa applicant a position. Before submitting Form I-129, the employer must obtain a labor certification from the U.S. Department of Labor by demonstrating that the position cannot be filled with a candidate from the local labor force.
If your Form I-129 is approved, you have two options, depending on whether or not you are already in the U.S. If you are in the U.S. under a different visa category, you cannot begin working until your H-1B visa status becomes active.
If you are outside of the U.S., you must request consular processing. To accomplish this, you must complete Form DS-160, which will take approximately 90 minutes. You must also pay the application fee and schedule an interview at an embassy or consulate of the U.S. in your area.
Looking for an “Immigration Lawyer Near Me?” Call Fayad Law, P.C.
At Fayad Law, P.C., we know how important it is to accurately and timely complete the entire process of applying for an H-1B visa with the least amount of difficulty and delay possible. With offices in Richmond and Fairfax, Virginia, our immigration attorneys are ready to assist you.
With over 20 years of combined experience, we can address any complications that may arise along the way, and we will do everything possible to ensure that you or your future employee receives the H-1B visa as soon as possible.
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