H-1B Status: An Overview

H-1B is a nonimmigrant classification that applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability. It is an employment-based, employer-sponsored nonimmigrant status that allows a non-citizen immigrant to work within the United States admitted for up to three years living within or outside of the USA. 

Eligibility Criteria:

  • To apply for the H-1B visa, you must have an employer willing to sponsor your petition. It is also known as ‘H-1B specialty occupation’, meaning you must have the educational background and/or specialized knowledge and skills in the related field to qualify for the position. 

  • You must have at least a Bachelorette Degree to be eligible for applying for an H-1B status. The degree can be outside of the USA, such as an accredited degree from anywhere in the world that will qualify for the position. However, an advanced degree (Master’s or Ph.D.) may be necessary, depending on the position you are applying for.

Categories:

There are different categories of H-1B-

  • Regular Cap 
  • H-1B Masters Cap
  • H-1B Cap Exempt. 

The cap refers to the limit of H-1B visas allowed per federal fiscal year (FY). A fiscal year begins on October 1st and ends on September 30th of the following year. Current regulations set the cap at 65,000 H-1B visas for the entire country. To check the latest cap and count, please visit the USCIS website.  There is also an exemption from the annual cap for the first 20,000 new H-1B beneficiaries who have earned a Master’s degree or higher from a U.S. institution of higher education.

Universities and related nonprofit entities, nonprofit research organizations, and government research organizations are exempt from the cap. These employers are able to submit an H-1B application to the USCIS at any time during the year without concern for the fiscal year limit. They do not need H1B registration selection. However, a person who works for an H-1B cap-exempt employer and changes jobs to an employer that is not exempt, may become subject to the H-1B cap. In that case, they have to go through the H1B registration process to change the employer who does not qualify under the Cap exempt rules.

Steps to the complete H1B application

There are five steps to the complete H1B application process-

  • H-1B Registration Process
  • Application for the Labor Condition Application (LCA)
  • Application for H-1B petition: Form I-129
  • Consular processing or Change of Status
  • Admission to the USA

The aforementioned steps are discussed in more detail as follows. It is also recommended that you have an immigration lawyer assist you throughout this application process. We have a highly skilled team experienced with the H-1B process and are always here for you to help you with this complicated process. 

Registration process: 

In 2020, USCIS implemented the electronic registration process for the H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register for the application. The application fee for this registration process is only $10 for each beneficiary. The time for this registration process usually begins on March 1 (approximately) of that FY, and Applicants must register with USCIS between the first three weeks of March (approximately). Applicants can begin setting up their accounts from February 24th. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Please follow the USCIS website for the latest registration process update. 

(Usually) throughout the last week of March, the USCIS announces the selected applications in the registration process. This announcement is a continuous process for a few days as long as the desired quota is filled out for the particular FY. The registration process requires only basic information about the prospective petitioner and each requested worker. The purpose of this registration period is to minimize the cost and time spent by people not chosen in the lottery system. A company/an employer can apply for the H-1B lottery for up to 250 beneficiaries in a single batch. 

If you get selected, you will be able to submit a petition beginning April 1st till June 30. 

Labor Condition Application 

The second step in the H1B visa application process and the first step of the H-1B petition is to submit a Labor Condition Application or LCA. A complete Form ETA-9035 and submit it electronically to the Department of Labor on behalf of the employer/petitioner.

Form ETA-9035 requests information regarding the visa, the employer, the beneficiary, the attorney, and the job description, including the wage level, job duties, the wages, and the work conditions. Certain wage levels are determined by the Department of Labor (DOL) for every ZIP code area in the U.S. It depends on your place of employment. So, the employer hiring an H-1B worker must have documentation to prove and then must certify to the U.S. Department of Labor (DOL) that it will pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The DOL determines the prevailing wage for every wage level that your employer is willing to hire you. The rule is that your employer must pay you either the same as the prevailing wage or higher, but it can never be less. The employer makes these declarations, under penalty of perjury, by submitting them to DOL. This LCA aims to ensure that the foreign beneficiary will be treated fairly in the US job market. For further information regarding LCA requirements and DOL’s process, see the Foreign Labor Certification, Department of Labor page.

Application for H-1B petition: Form I-129

The next step for the H-1B petition process is to submit a complete form I-129 along with G-1145 and G-28. Note: The employer/petitioner should file Form I-129, Petition for a Nonimmigrant Worker, to the correct USCIS service center; See USCIS I-129 Direct Filing Chart. All these forms and supporting documents must be sent to the USCIS service center assigned in your registration selection notice. The supporting documents needed for the complete application include the biographic page of the beneficiary’s passport, a copy of the approved labor condition application, a supporting statement from the US company sponsoring the beneficiary, an employment offer letter, a cover letter from your attorney, evidence of lawful status, resumes, transcripts, proof of awards, or statements from other professional associations. 

An immigration lawyer can assist you in determining what is appropriate to include in your application. 

You can also apply for the premium processing. In that case, you must file a Form I-907 along with other forms and pay an additional $2500 (as per 2022) I-1907 premium processing filing fee. 

Consular processing or Change of Status

If your petition is approved, you will receive Form I-797 approval notice from the USCIS. At this point, the beneficiary should schedule an appointment at their local US consulate. If they are already residing in the US and Form I-129 is filed as a “Change of Status,” – your status will automatically change to H-1B. 

Applicants outside of the USA must apply for the proper US visa through the local US consular office. For the interview, the beneficiary should bring Form I-797 along with evidence of your qualifications, such as transcripts, and resume. Different US consulates will have different requirements. Your own individual situation may also affect what documents will be appropriate. You can find more information by going to the website of your local US embassy. 

If a US consular officer approves, you will have an H1B visa status.

Admission to the United States 

Once approved, you are eligible to come to the United States and begin work. The start date for the job must not be earlier than October 1st. You should bring your passport, H1B visa, and Form I-797 Approval Notice. You will receive an electronic I-94 card upon arrival in the United States. You should confirm that the dates on your I-94 card match your H-1B visa. Your H1B status should be valid for up to 3 years. 

Attorney Profile

Raju Mahajan
Raju Mahajan, Esq.

Principle Attorney and Owner

Education
-JD from LMU Duncan School of Law
-MA from West Virginia State University

Bar Admissions
-Maryland
-Washington DC

Memberships and Affiliations
-American Bar Association
-South Asian Bar Association
-The National Lawyers Guild (NLG).
-American Immigration Lawyers Association (AILA)

Fluent in English and Bengali

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