Key Takeaways:
- The H-1B is a competitive, employer-sponsored visa for professionals in specialty occupations requiring at least a bachelor’s degree or equivalent.
- The multi-step process is largely managed by the employer and begins with an annual lottery registration in March.
- The process involves extensive paperwork, and working with an experienced attorney can help.
The H-1B visa — a specialized, temporary visa — is the primary pathway for foreign professionals with specialized skills to work in the US. And while the process may seem complex and demanding, it’s made easier when working with experienced immigration attorneys. Luo & Associates can demystify the process by providing a clear, step-by-step guide on how to apply for an H-1B visa.
H-1B Eligibility
Before exploring the H-1B application process: Do you qualify? Eligibility for this visa extends to the potential employee (beneficiary), position (specialty occupation), and employer. The beneficiary (you) must demonstrate that they possess the necessary qualifications for the specialty position. Qualifications can be demonstrated through:
- Education
- Equivalent foreign degrees
- Relevant licenses or certifications
- Work experience
Specialty Occupation Eligibility
The position or job must be a specialty occupation. This means it must require specialized knowledge or skills and a minimum of a bachelor’s degree. The position can also qualify if its duties are so complex that the required knowledge is typically associated with a bachelor’s or higher degree.
Employer Eligibility
Knowing how to apply for an H-1B visa is the responsibility of the US employer. As your sponsor, they file the initial petition and the following paperwork, including the certified Labor Condition Application (LCA) from the Department of Labor. The final petition (if you’re one of the selected few) must include a formal letter of employment committing to a prevailing wage.
The H-1B Application Process
Once you have secured an eligible employer and position, the application process can begin. The responsibility for filing the petition then rests with your future employer.
Step 1: The H-1B Registration and Lottery
Because the government places a cap on H-1B visas, there is an annual lottery. The US Citizenship and Immigration Services (USCIS) uses an electronic registration system for the H-1B lottery. Your sponsoring employer must submit your registration during the designated registration period in March. It must include the beneficiary’s valid passport information. This registration is only the first step of how to apply for an H-1B visa.
Step 2: The Selection and Certification of the Labor Condition Application (LCA)
For candidates who are selected in the lottery (late March), their employer must file an LCA (Form ETA-9035). The form attests that the wage offered meets or exceeds local standards for the position. It also confirms that the hiring of a foreign worker will not adversely affect the conditions of US workers. The form must be certified before the entire H-1B petition or application can be submitted.
Step 3: The Petition for a Nonimmigrant Worker (Form I-129)
Form I-129, Petition for a Nonimmigrant Worker, is yet another form required to apply for an H-1B visa. Essentially, this form is a formal request made by an employer to the USCIS. It asks the government agency to allow the temporary employment of you (the foreign worker).
As part of the H-1B application process, this is one of the most involved forms. For the approval of the petition, the employer must support it with extensive evidence, including:
- The certified LCA
- Academic credentials
- The job offer letter
- Information proving the role as a specialty occupation
The form must be filed sometime between April 1st and June 30th.
Step 4: The Review and Decision
The USCIS adjudication or review and decision process can take several months. That said, employers can pay an extra fee for premium processing to receive an expedited decision, typically received within 15 business days.
An application can receive one of several responses: approval, denial, or a request for evidence (RFE). If approved, you’ll receive an approval notice sent to a local US consulate. You’ll use this notice to apply for a visa stamp on your passport.
If denied, your employer can file an appeal or motion. To apply for an H-1B visa appeal, your employer will file Form I-290B with the Administration Appeals Office. Appeals are filed to review or reverse a USCIS decision.
If your employer would rather challenge an unfavorable decision, they can file a motion. To do this, they use the same I-290B form as above.
Finally, for RFE decisions, the employer will need to file any requested evidence. The RFE should be filed by the stated deadline on the notice.
Simplify Your H-1B Visa Application Process With Luo & Associates
While learning how to apply for an H-1B visa is educational, it doesn’t eliminate the multi-layered and somewhat complex process. Luo & Associates is an immigration law firm with a deep understanding and expertise in guiding H-1B applicants through this process for over a decade (and with a 99% approval rate). So don’t leave your future to chance, contact our offices in New York for a free initial consultation.