An Employer’s Guide to Sponsoring an H-1B Visa
The H1-B program allows employers to temporarily hire nonimmigrant foreign workers in specialty occupations. A specialty occupation is one that requires specialized knowledge (in areas such as sciences, medicine, health care, education, biotechnology, business specialties) and a bachelor's degree or equivalent work experience. Typically, an employee is able to work for an employer on an H1-B visa for up to six years. They must then leave the U.S. for a year before applying for another H1-B visa. However, if an employer wants to employ them on a permanent basis, they can extend their visa until the employee is able to receive a green card.
Currently, the United States limits the number of H-1B visa to 65,000 annually, but an additional 20,000 can fall under the advanced degree exemption. Due to the limited number of H-1B visas granted annually, the USCIS holds a lottery to randomly among all of the applicants. In general, applications take three to six months to process, but a company can choose to pay for premium processing to guarantee USCIS will adjudicate the petition within 15 days.
What is the H-1B Visa Specialty Occupation?
Before proceeding with filing an H-1B petition, an employer must first ensure that the job description of the position qualified as a specialty occupation. To qualify as a specialty occupation, the position must meet one of the following criteria:
· Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position
· The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
· The employer normally requires a degree or its equivalent for the position
· The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
The employer must also ensure that the pay for the position is at least the “required” wage, which is the higher of the prevailing wage or the employer’s actual wage for similarly employed workers. A common prevailing wage source is the State Workforce Agency (formerly the State Employment Security Agency) operating in each state. A company also has to give notice to U.S. workers within 30 days before it files the Labor Condition Application (LCA). The company can provide the notice to the union collective bargaining representative, as a hard-copy worksite notice placed in at least two conspicuous locations for 10 days, or as an electronic notice to all workers for 10 days.
After these requirements are met, a company must file a Labor Condition Application (LCA) with the U.S. Department of Labor. The company must receive the certification of an LCA no more than 6 months before the initial date of intended employment. The LCA is document that attests that hiring the H-1B worker does not adversely affect any U.S. citizen workers. This includes the following statements:
· the employee will be paid a wage that is not less than the wage paid to similarly qualified workers
· the employee will receive the same benefits as others in the role
· the employee will not negatively affect the working conditions of other employees
· there is no active labor dispute or work stoppage in place at the time of hiring the employee
LCAs are filed electronically with the Department of Labor and are usually reviewed within seven business days.
As mentioned above, the USCIS holds an annual lottery for companies seeking to sponsor a worker for an H-1B visa. Near the end of the Trump administration, the Department of Labor (DOL) proposed a rule that would assign H-1B visas based on wages, as opposed to the current lottery system. Although it seemed like the Biden administration would continue some version of the rule, the rule was vacated by the US District Court for the Northern District of California on Sept. 15, 2021 on a challenge by the US Chamber of Commerce among others. Still, the idea of H1-B wage adjustment persists. Biden’s U.S. Citizenship Act of 2021 would prioritize visas based on wages, but it is still uncertain if this legislation will pass. As it stands the lottery process is still in effect. In order to enter the lottery, a company must register electronically in March of each year. After the registration period closes, the USCIS will randomly select from all registrations to fill the 65,000 H-1B visa spots. Then, there is a random selection for the additional 20,000 visas for beneficiaries with a U.S. master's degree or higher. After that, the selected registrants have 90 days to file the H-1B petition with supporting documentation.
What Documents Should I file for H-1B Visa?
There are many documents that must be included in an H-1B package. These include (in the preferred order:
· Copy of H-1B Lottery Selection Notice
· Form I-907 (if filing for Premium Processing Service)
· Form G-28 (if represented by a lawyer or accredited representative)
· Form I-129, Petition for a Nonimmigrant Worker, with addendums/attachments
· H Classification Supplement to Form I-129 (Free Trade Supplement for H1B1 Chile-Singapore petitions)
· H1B Data Collection and Filing Fee Exemption Supplement
· All supporting documentation to establish eligibility (provide a table of contents for supporting documentation and tab the items as listed in the table)
· Arrival-Departure Record -Form I-94 (if the beneficiary is in the United States)
· SEVIS Form I-20 (if the beneficiary is a current or former F-1 student or F-2 dependent)
· SEVIS Form DS-2019 (if the beneficiary is a current or former J-1 or J-2)
· Form I-566 (if the beneficiary is a current A or G nonimmigrant)
· Department of Labor certified LCA, Form ETA 9035
· Employer/lawyer/representative letter(s)
· Other supporting documentation
· Copy of the petition, if necessary. Clearly mark it as “COPY” so that it is not mistaken for a duplicate filing
What are H-1B Visa Filing Fees?
Each petition must also include the applicable fees. These fees may include:
· Form I-129 base filing fee: $460.
· American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B of the I-129 form):
· $750 for employers with one to 25 full-time equivalent employees, unless exempt.
· $1,500 for employers with 26 or more full-time equivalent employees, unless exempt.
· Fraud prevention and detection fee: $500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers.
· Public Law 114-113: $4,000 to be submitted by a petitioner that employs 50 or more employees in the United States and more than 50 percent of its employees in the U.S. are in H-1B or L-1 nonimmigrant status. The fee must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers.
· Premium processing service fee: $2,500 for employers seeking premium processing service.
· Electronic registration system fee of $10 (paid during registration).
After the H-1B petition is approved, the H-1B worker may take a copy of the Form I-797 to a U.S. embassy or consulate abroad for an H-1B visa. The worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States.