H-1B visa is one of the most utilized visas by employers to bring foreign talent to the U.S. The H-1B program is intended to allow employers to hire foreign workers temporarily, where such skills cannot be found domestically.
The H-1B program is available for specialty occupation workers and fashion models of distinguished merit and ability. This article will focus on specialty occupation workers only.
Qualifying criteria
There are three qualifying criteria for an H-1B:
- Sponsoring entity must be a U.S. employer or agent.
- The applicant must qualify for the position as a specialty occupation; and
- The worker must have the qualifications. They need them to do the job.
What is specialty occupation?
To qualify as a specialty occupation, the foreign worker must be coming to the U.S. to work in a job that requires:
- Theoretical and practical application of a body of specialized knowledge and
- Attainment of a bachelor’s or higher degree in the specific specialty or its equal.
This means that a foreign worker must have a job that requires at least a bachelor’s degree in a relevant field. The job’s duties need using knowledge from that degree to do the role.
United States Citizenship and Immigration Services (USCIS) will refer to Labor Department information. It will use it to see if the position requires a bachelor’s degree. If not, it will be hard to get approval for an H-1B. Unless, you can show the job duties are so complex that only someone with a bachelor’s degree can do them.
H-1B application process
To apply for an H-1B it is necessary to go through a lottery process. Each year, 65,000 visas are for candidates with a bachelor’s degree. Another 20,000 visas are for those with a master’s degree or higher.
The lottery process starts with an online registration where Employers are permitted to submit one registration per employee. The Registration period varies each year, but typically takes place during the first three weeks. During the last week of March, USCIS will conduct the lottery and will inform Employers through their online account which employees have been selected. From April 1 until June 30, employers can then file an H-1B petition for adjudication. In 2021 USCIS ran a second and a third lottery because they needed to select extra applicants. Similarly in 2023 they ran a second lottery in July.
If the applicant is in the U.S. in another status, like F-1, the employer can request a change of status. This change would take effect on October 1st. If the applicant is outside the U.S., they must go to the Consulate for an interview. They need to get an H-1B visa stamp in their passport.
Wage requirements
Following selection in the lottery and as a part of the application process Employers are required to file a Labor Condition Application (LCA), which is submitted with the application. On the LCA the employer selects a code, which most closely matches with the occupation, and a wage level, depending on the requirements for the position. By signing the LCA the employer is attesting to pay the foreign worker the prevailing wage. Failure to pay the wage for the duration of the H-1B is considered a violation and could result in penalties from the Department of Labor (DOL).
Duration of the H-1B
An H-1B is typically approved for 3 years and an applicant is entitled to a maximum of 6 years on H-1B (only includes time spent in the U.S.) in H-1B status. However, an applicant can extend beyond 6 years if their employer initiates the green card process for them.
Dependent spouses and children under 21 are eligible for H-4 status. Under certain circumstances H-4 spouses may be eligible to apply for an employment authorization.
Filing fees
In addition to paying an Attorney fee (varies from Attorney to Attorney) the employer will be required to pay the following filing fees to USCIS (only if the application is selected in the lottery):
- $460 filing fee if 25 employees or less or $780 if 26 or more employees.
- $500 Fraud fee.
- $750 training fee if 25 employees or less or $1500 if 26 or more employees.
- $300 Asylum Program fee if 25 employees or less or $600 if 26 or more employees.
- $2805 Premium process fee (optional); and
- $4000 public law fee if employer employs more than 50 employees and more than half of employees are in H-1B, L-1A or L-1B status.
The above fees are in addition to the Attorney fee, which varies from firm to firm.
For more information on the H-1B program please contact PLG Partner Chris Prescott at cprescott@patellegal.com