Applying for the H-1B Visa - Davis & Associates

Applying for the H-1B Visa

If you’re like many people, you’re interested in the H-1B visa – a nonimmigrant visa that lets people work in specialty occupations or perform services of exceptional merit and ability to the U.S. Department of Defense.

This guide explains applying for the H-1B visa, the electronic registration process, and everything else you need to know if you’re interested in working in a specialty occupation, working on research and development projects with the Department of Defense, or working as a fashion model in the United States.

H-1b Visa InfographicWhat Is An H-1B Visa?

An H-1B visa allows companies in the United States to employ foreign workers in positions that require at least a bachelor’s degree (or its equivalent) in the field of endeavor. This is important.

The USCIS is highly scrutinizing cases where the beneficiary’s degree field does not “closely” match the field of work.

Petitions can be filed for beneficiaries already in the U.S. in another valid status, such as F-1 student status, as well as those outside the United States.

If the beneficiary has never held H-1B status in the past, they will likely be subject to the annual H-1B cap limitation unless they will work for an institution of higher education, certain affiliates of an institution of higher education, or a governmental non-profit research organization.

Currently, there are 20,000 H-1B “Master’s cap” slots available for those who have earned a U.S. Master’s degree from an accredited university in their field of endeavor.

There are 65,000 “regular cap” slots that are open to all qualified applicants. This to be discussed in further detail below. This number is subject to change, however, and you can get the most current information from your immigration attorney.

Caps are important because they limit the number of people allowed into the United States for certain purposes each year.

Sometimes, employers must wait for a spot to open up before becoming eligible to sponsor foreign workers. The bottom line is that if you want to hire foreign workers, your company should consult with an experienced, knowledgeable immigration attorney who can help.

Employer Requirements for H-1B Visa Employees

Employers must first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor confirming that the employer will pay the local prevailing wage or the wage offered to similarly employed U.S. workers, whichever is greater.

To file the H-1B petition, the employer must, among other things, demonstrate that 1) the position is a specialty occupation; 2) that an employer-employee relationship will exist between the parties; and 3) that the employer has the ability to pay the wage offered as per the certified LCA from the DOL.

If an employer fails to obtain labor certification, it cannot hire foreign workers under H-1B visa status. And if an employer falls out of compliance after hiring foreign workers, there are legal consequences.

For example, an employer violates the requirement to have a valid LCA, the employer may have to pay hefty fines; it can also be barred from sponsoring nonimmigrant and immigrant petitions in the future, as well as face other sanctions.

Employers should seek advice and guidance from a board-certified immigration attorney to help ensure their company will meet these requirements prior to filing. Please note that individuals cannot petition for themselves – employers must sponsor workers, and they can only do so with a valid labor certification.

Beneficiary Requirements for H-1B Visas

In most cases (other than in the case of fashion models and other, very limited circumstances), the beneficiary must have earned at least a bachelor’s level degree (or a foreign equivalent) in their field of endeavor at the time of filing the H-1B petition.

If they are in the U.S. and seeking a change of status (that is, a change to their current immigration status) they must also establish that they are maintaining valid status at the time of filing or they must process their nonimmigrant visa application in their home country. This is referred to as consular notification and also applies to beneficiaries that are not in the United States.

H-1B visas are only for people who want to work in specialty occupations (occupations that require theoretical and practical application of a body of highly specialized knowledge), Department of Defense researchers and development project workers, and fashion models. There are other visas available for employers to sponsor workers that do not fall into these categories, including L-1 visas for intracompany transferees and P-1 visas for athletes and entertainers, which you can explore in the Business Immigration section of our website.

What is the H-1B Visa Electronic Registration Process?

In 2020, USCIS began requiring people to register electronically for the H-1B cap. The agency won’t consider an application to be properly filed unless it’s based on a selected (and valid) registration for the same beneficiary in the appropriate fiscal year. Everyone who wants to file an H-1B cap-subject petition (including those with advanced degrees) must first register online and pay a $10 H-1B registration fee. Everyone must have a USCIS online account.

There are specific dates for registration, which are subject to change. Your immigration attorney can help you pinpoint those dates so you (or your attorney, working on your behalf) can register at the right time. As of this writing, there are three registration periods per year. However, that’s subject to change – and your best source for the most current registration period information is your immigration attorney.

After you register, your online account will show one of the following statuses:

  • Your registration is in the system and is eligible for selection.
  • You are selected to file an H-1B cap petition.
  • Not selected. You are ineligible to file an H-1B cap petition based on your current registration.
  • You submitted multiple registrations, and therefore all your registrations are invalid. (This is why you should talk to an attorney before you attempt to register!)
  • Invalidated – failed payment. Your registration went through, but your payment method was declined or otherwise invalid.

How Long Can You Stay in the U.S. in H-1B Status?

If you’re an H-1B nonimmigrant, you can be admitted to the United States for up to 3 years. In some cases, your time can be extended, but typically, you can’t go beyond a total of 6 years. There are some exceptions available, though, which your business immigration attorney can explain to you.

What if You Leave Early When You’re on an H-1B Visa?

If your employer terminates you before the end of your period of authorized stay, your employer is liable for the reasonable costs of your return transportation. Your employer is not responsible for the costs of your return transportation if you voluntarily resign or quit.

What About Families on H-1B Visas?

If you’re married, or if you have unmarried children under the age of 21, you may be able to bring your family as H-4 nonimmigrants. Your attorney can help you understand the process for applying for H-4 nonimmigrant visas, as well as fill out and file the paperwork for you. Your dependent spouse may be eligible to apply for employment authorization, enabling them to get a job, but only under certain circumstances.

Premium Processing For H-1B Visas

Premium processing, a service the federal government provides that promises employers a judgment within 15 days, may be an option for this year’s H-1B visas that are subject to the cap. U.S. Citizenship and Immigration Services charges employers an additional fee of $1,410 for this faster processing service.

Should You Work With an Attorney for an H-1B Petition?

Yes! If your company is interested in hiring foreign workers, working with a board-certified Immigration attorney helps ensure that your paperwork is filled out and filed properly and timely. Your lawyer will answer your questions and provide you with case-specific legal guidance that you won’t be able to get online.

If your company is considering bringing in foreign workers, we may be able to help you. Get in touch with us today to find out how we can help – and we’ll be happy to answer all your questions about the H-1B visa process and help you get started on your journey.


About Davis & Associates:

Davis & Associates is the immigration law firm of choice in Houston & North Texas including Dallas, Fort Worth, Plano, Frisco, McKinney and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.

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