If you don’t know it already, the H-1B is the most sought-after work visa. It is (in)famous in its own way. Some fast facts:
● Limited to 65,000 visas plus 20,000 additional for U.S. master’s degrees (85,000 total);
● Lottery held in April each year, and the selection rate ranges from 25% to 37%;
● Visa begins in October of each year, and is valid for 3 years and can be renewed (with exception);
● US company employer, must pay proper wage and normally requires a bachelor’s degree;
H-1B visas are similar to E3 visas in that the applicant must work specifically in a specialized career field that requires theoretical or practical knowledge niche to their field. They must also already have a job lined up, and the employer must be willing to sponsor the applicant for the visa. Employers will generally cover the cost of any and all visa fees and turn in the paperwork needed for visa approval.
In comparison to every other NIV, the fees for an H-1B visa are pretty substantial. Therefore, it is in your best interest to find an employer who will cover the cost of your application. A typical H-1B visa will include the following fees:
● A non-refundable $10 registration fee;
● A $460 standard filing fee for an I-129 petition. This applies to any transfers, renewals, amendments, or re-filings, meaning that this fee can quickly add up if you are initially denied;
● A $750 ACWIA training fee for employers currently employing fewer than 26 employees;
● A $1,500 ACWIA training fee for employers currently employing 26+ employees;
A $500 fraud prevention and detection fee;
● A $4,000 fee for companies currently employing more than 50 employees on an H-1B or L-1 visa;
● An optional $1,440 fee to expedite processing
In total, an H-1B visa can cost as much as $8,500. For employers currently working in a non-profit affiliated with a research organization or educational institute, you may be exempt from having to pay the ACWIA fees, though expect to still fork out nearly $1,000 per H-1B visa.
For applicants looking to put their names in for an H-1B visa, know that the job criteria are quite strict. Just as with an E3 visa, you will only qualify if you are currently employed in a high-skilled job that requires a niche and industry-specific base of knowledge. H-1B visas are intended for companies and employers who are unable to find qualified job candidates within the United States. Jobs that commonly qualify for H-1B visas are usually considered the top-professions around the world. These include but are not limited to:
● IT Specialists
● Translators and Interpreters
● Business Analysts*(keep reading below)
● Statisticians and Mathematicians
The truth is that the H-1B is the most denied visa of all NIV available. The denial rate has gone up over the past five years, but aside from that number, the H-1B visa simply has the most difficult standards to meet for approval.
*The regulations make it difficult for almost every job related to a business degree. The Department of Labor and USCIS have both noted that many business professions do not require a degree, thus the job itself is considered too low-level to qualify for the H-1B process. Bottom line – non-STEM jobs may be subjected to a lot more skepticism by USCIS than a STEM-related job. Business analysts, market research analysts, and managers are all highly scrutinized, subjected to RFEs, and denied at a higher rate than STEM-related jobs.
The other issue that USCIS always encounters is that the intended job site is outside of the employer’s office. This “off-site” employment is a major focus for all USCIS H-1B filings. To file this type of case you will need to present contracts between the employer and vendor, known as master service agreements (MSA), and statements of work (SOW), along with organizational charts and letters from each vendor involved in any part of the employment. Essentially, in this type of H-1B case, USCIS will want to hear from every connected party and review original documents that lay out the contractual relationships between the parties.
Cap Exempt H-1B is a specific type of H-1B wherein an employer in charge of a non-profit, associated with a college or university is permitted to file H-1B petitions outside of the numerical limitations. If you think you have a cap-exempt H-1B employer, you should contact an attorney right away.
Under the current regulations, H-1B visas are initially issued for three years but may be extended up to six years. These visas may only be extended once, meaning that after six years, the visa holder will have to either apply for a different type of visa or leave the United States. It is possible to apply for another H-1B visa but the applicant will have to wait a full year and go through the same difficult lottery system as before.
In 2001, the American Competitiveness in the Twenty-First Century Act (AC21) amended the pre-existing regulations to allow for some exemptions to the above rules. Under this law, workers will be able to extend their visas past six-years in certain situations. If they are the beneficiary of an I-140 petition but they have not been able to apply for a Green Card due to a non-current priority date, they can continue to extend their H-1B until that date comes up. If the employer files an approved I-140 before the sixth year, it is also possible to extend an H-1B visa.
Under the 2001 AC21, it also becomes possible to reclaim time for an H-1B visa. What this means is that the six-year time limit only refers to time spent inside United States territory. Any time spent visiting family, traveling, or conducting business overseas can be reclaimed and added to the duration of the visa.
Visa holders may also “port,” or change employers without automatically losing their valid visa status. However, if an H-1B visa holder quits their job or is fired, they must file the paperwork for an amendment and apply for a change of status as soon as they find new employment.
If you intend to reside in the United States with your spouse and children, you may do so with an H-1B visa, though they will have to apply for separate H4 visas. They are permitted to stay in the United States for the full duration of your H-1B visa, but if you lose or invalidate your visa, they must depart with you from U.S. territory. Children and spouses with an H4 visa may attend school, apply for driver’s licenses, conduct banking, work, and even apply for Social Security Numbers.
The H-1B visa is rule-specific. Approvals require creativity with a heavy emphasis on documentation. Call your lawyer early to get started on this process or to figure out principal alternatives to the H-1B visa. Our services are specialized to help skilled professionals looking to work in the United States under an H-1B visa.