H-1B Visa Requirements & Application Process Explained

[00:00:03][Music] good morning and uh welcome to this webinar how to apply for an h-1b visa uh today we're going to spend some time talking about h-1b visas this is a very relevant visa since the h-1b cap season has just started so a few things before we get started with the webinar scott legal is a full-service immigration firm that processes many h1b visas um our our firm founder ian scott himself has been on h1b visa and is happy to answer questions about his experience uh we will continue doing um our webinar series doing at least two webinars a month on different topics we have many scheduled webinars coming up on a variety of topics if you visit our website we have a list on there where you can sign up after the webinar we will send you um this powerpoint presentation an h1b comprehensive visa guide and a link to where you can sign up for additional webinars um i will be the panelist today my name is kelly legrand wiener and i'm the managing attorney at scout legal and have processed many h1b visas if you have questions throughout the presentation please just um add the information to the chat box or the q a and we will attempt to make time for questions at the end of the presentation finally this webinar is being recorded and will be made available on demand so now we will um get started so what is um an h1b visa what are the h1b visa requirements so to qualify for an h-1b visa the worker must have a u.s bachelor's degree or hire in a specific specialty they may have a foreign degree that is equivalent to a u.s bachelor's degree or higher in a specific specialty they may have an unrestricted state license registration or certification that authorizes them to fully practice the specialty occupation or they may have education training or progressively responsible work experience in the specialty that is found to be equivalent to a us bachelor's degree or higher so another requirement the h1b worker must have a job offer from a u.s employer in a specialty occupation a specialty occupation requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's degree or higher in the specific specialty as a minimum requirement for entry into the application so to prove that a position is a specialty occupation um you need to show one of these these four elements below so either the bachelor's degree or higher is normally the minimum requirement for entry into the particular position you can look at things like the bureau of labor statistics or the occupational outlook handbook from the department of labor which talk about you know what degrees are required for which occupations you may show that the degree requirement is common in the industry in parallel positions among similar organizations or that the position is so complex and unique that it can only be performed by someone who has obtained a degree you could show the employer normally requires a degree or it's equivalent for this position so looking back if it's a job where the employer has hired many of the same you know for many of the same job like multiple accountants and they can show a history of requiring a specific degree this can be used or that the nature of the duties are so specialized and complex but the knowledge required to perform the duties is associated with the attainment of a bachelor's degree or higher all right so when can you apply for an h-1b visa and what is the lottery so there there's a limited number of new h1b petitions that can be adjudicated each year this is referred to as the h1b cap and there's 85 000 slots each year for new h1b applications 65 000 of those slots are um are for the what's called the regular cap and then 20 000 are reserved for us advanced degree petitions so people that have a us master's degree or higher and then the 65 000 are for people who have either a bachelor's degree or higher if you're filing an h b change of employer petition or an extension petition let's say you've already been counted in the cap and um you know you want to change your employer or you've been with one employer for three years and they're extending you're not subject to the h1b cap these petitions can be filed at any time um however for the lottery for new h20 petitions where you've never received an h1b before those can only be filed during a specific period of time so because there's more than 85 000 you know registration submitted every year only 85 000 slots uscis runs a lottery and that happens every year in march so last year um there were 308 613 registrations submitted for these 85 000 slots so it's quite um you know many more applicants than than slots available um the way the h1b lottery works is there's a computer generated random selection process to select the petitions and in 2020 um the the lottery became electronic and we'll talk more about that on the next slide another um you know thing to just keep in mind is there are h1b cap exempt employers um so these are employers that their h1bs are not counted toward the 85 000 cap and they can you know file to uh sponsor an h1b employee at any time so institutions of higher education or related or affiliated nonprofit entities or a non-profit organization or governmental research organization these these entities are not constrained by the cap all right so what is the h1b application process so the the registration period for this year um runs from march 1st to march 18th 2022.

[00:06:24]uh it was just this week that um employers were allowed to make a new uscis account as h1b registrants so once that account is made um you know the then the uh excuse me uh the h1b employer uh after they make their online account then their employer or the attorney can can prepare an hmb registration um and then they can submit that registration and the fee for the h1b registration is is ten dollars for each registration which is for one single beneficiary so if you're um you know submitting registrations for 20 different beneficiaries there's going to be a 10 fee for each one um uscis will then run the lottery and applicants should be notified you know by march 31st and then if you are selected in the lottery your petition needs to be filed within 90 days so if it's selected by march 31st then you have between april 1st and june 30th to file your petition it is also possible that if they select um you know a number of registrations and uh you know they they don't end up you know meeting the number that they need they may run a second or third lottery and that did happen last year where additional lotteries were run um and new people were able to be given that 90-day filing window to submit their h1b petition so if you are selected in the lottery the application process involves first preparing a labor condition application of the department of labor and these take about seven business days to be issued by the department of labor then you need to prepare your h1b petition which will consist of uscis filing the you know filing forms the fees and supporting documents showing that the um that the job is a specialty occupation and that the worker has the required degree or equivalent experience um or license uh in that specialty occupation when you file your h1b petition you have an option to file either as a change of status or for consular processing uh if you're filing as a change of status let's say you're in the united states as a student you're honoring your opt and you don't want to leave you want to have this uninterrupted time in the united states so then you would likely file for a change of status and then your if your petition is selected and approved you would automatically change to h1b status as of october 1st of 2022 um if you're doing consular processing then your status would not automatically change if you get approved then you would need to leave the united states um go to a consulate get an h1b visa stamp in your passport and then re-enter when you're ready sometimes people for example on stem opt may choose the consular processing option because they're at the beginning of their stem opt and they'd like to kind of you know kind of go for the cap to see if they get selected because it can take a while but then their h1b is approved and they have the approval notice um but they won't automatically change to h1b status they can go in the future um when their stem opt is closer to expiration and get the h1b at that time so thinking about family considerations an h1b employee's family can come with them to the united states the spouse and unmarriage children who are under 21 can get h4 dependent visas the children and the spouse can study in the united states the spouse generally cannot work in the united states there's limited exceptions to this for example if the h1b worker is at a certain point um in the green card process is an i-140 approved or something like that sometimes the h4 spouse is able to work but it's very limited who can pay for the h1b legal and government filing fees so for um for legal fees attorney speeds related to the h1b generally um an h1b employer cannot require that the employee pay for these fees or reimburse for attorney's fees associated with the h1b and this includes you know kind of prohibition on side agreements to pay back the fees it's also a general best practice the employer cannot take the fees out of the employee's paycheck there are limited exceptions to this so for example if the person makes a very high wage and deducting the fees doesn't reduce that wage below the required wage which means either the actual wage being paid um to the applicant or the prevailing wage whichever is higher so if the um if the taking the fees out doesn't reduce that employee's paycheck below what's permitted then sometimes it's permitted however it is a best practice for employers to pay for the h1b fees since there's some um you know dispute in the statutes about what's actually permitted um one exception to this that's clear is that the h1b employee can pay for the legal fees for dependent applications so the employer may choose to pay for those fees but um there's there's no requirement that they do and the h1b employee is not prohibited from paying those fees for the filing fees for the h1b there are several filing fees the i-129 filing fee there's an anti-fraud filing fee and an acwia fee there's also an optional premium processing fee the employer must pay the the anti-fraud and the acwia fees there's there's no debate there they must pay those those fees um one exception is that the employee can pay the premium processing fee since this is optional um so if the um if the employer is not interested in kind of doing a faster filing but they're open to the employee paying then the employee can pay for that but premium processing pay of 2500 dollars current h1b adjudication trends so starting in 2016 um you know became more difficult to obtain h1b approvals and there was a largely increasing rate of requests for evidence there was also the implementation of the buy american higher american executive order which was often cited as a reason for higher rates of h1b denials this executive order was under the previous administration and has now been revoked there were additionally a lot of pending regulations um promulgated by the previous administration that have been blocked by litigation um or delayed or have now been withdrawn so there were several things uh you know potential rules redefining specialty occupation limiting third-party placements changing the definition of employer employee relationship changing the lottery system so it's based on wages and that last one the um you know the wages uh you know that was that wage-based selection process rule was was withdrawn by the current administration after the rule was vacated by a court challenge um so for many of these things that um potentially could have made it more difficult to to obtain an h1b they've been withdrawn or no longer you know no longer in process and uh there's been positive news in that the initial h1b approval rate rose to 97.3 in 2021 and denial rates dropped from 13 in 2020 to 4 in 2021. um so the rates kind of you know that dipped very significantly between you know 2016 and 2020 are now climbing again so what happens if you lose your h1b job um so if the job is terminated you know either because you've left the job you've resigned or you know you've been laid off from the job then the first thing you should do is check your i-94 let's say that your i-94 is still valid for a year in that case you would have a 60-day grace period to remain in the united states um during that time you can you know either make plans to depart the us you can look for a new job and have your new employer file a change in employer petition for a new h1b or if you need more time or you know have a spouse or family member here you know you could potentially change to a dependent status for example if your spouse is studying and obtains an f1 student visa you can change to an f2 uh dependent student visa one thing to make sure of is your i-94 because let's say your i-94 you know rather than expiring in a year expires in a month so then you wouldn't have the full 60 days on your grace period your grace period would end with your i-94 end date so at that point you would only have a 30-day grace period um to either depart or you know change to another status or find a new h1b job so what are the the h1b grace periods there's there's two grace periods that are relevant for h1b visa holders um so one um is the 60-day grace period that we just discussed uh this is when your employment ends unexpectedly um and uh you know it allows you that time to kind of make um you know make plans get a new job or leave the united states or get a new status you are not permitted to work during this grace period but you are permitted to change your status or to you know change employers to a new h1b employer there's also a 10-day grace period that is relevant for h1b visa holders um during the 10-day grace periods you're not permitted to work however they can be granted on 10 days on either side of your approval notice so 10 days before the validity period begins and 10 days before the validity period ends or after the validity period ends um you know to allow you to enter the united states right before your job starts and to give you a few days to depart when your job ends the the ten big race period is not always given um particularly if you're entering um you know you're coming into the united states with your h1b visa stamp you should always check your i94 because you know there are times when uh customs and border patrol officers you know will not give you that 10 days and you want to you know you need to be directed by what's on your i-94 so if you want the 10 days of the grace period you can go back and ask them to change the i9 before but you shouldn't just assume you can still take the 10 days you should be guided by what's on your i-94 so how many times can you renew the h-1b visa you can be granted the visa for up to six years in three year increments so um you know if you're selected in the cap you know you'll change status to h1b on october 1st and then you know the the approval will be good for three years from that date and then you can extend for another three years only time spent in the us counts towards the six years so sometimes you can file an h1b recapture petition to get additional time for example let's say you're here on the h1b but every year you spend you know three weeks on vacation out of the country uh you know what you can do is you can save um your travel history from the i-94 website uh your plane tickets your itineraries um receipts that you have from when you're out of the country and then you can submit an h1b recapture petition with that evidence to kind of get back uh those several weeks that you were out of the united states to kind of extend that h-1b time that you need to there's also certain exceptions that allow for extensions beyond six years for applicants who are in the green card process uh so the first is the lengthy adjudication delay this is a one-year extension that's available at 365 days have passed since either the filing of a labor certification with the department of labor or the filing of an immigrant visa petition in i-140 with uscis so it can give you that additional time that you need there's also a per country limit exemption so if you have an approved i-140 but your the applicant's not yet able to file for a green card because there's limits on immigrant visa availability this is especially relevant for indian and chinese nationals then you can get a three-year extension on your h-1b um just by showing the visa bulletin and showing that there's not an immigrant visa available for you at this time so do you need an h1b to apply for a green card um it's very common that people will come and ask whether or not they need to to go to the step of an h1b before getting a green card and you don't um there's no requirement that you be on an h1b visa in order to apply for a green card however it can be advantageous um to be on an h1b for specific reasons so one is the h1b is a dual intent visa um you know so many visas um for example the tn visa you know the the ovs of the e-visa um you know they don't specifically allow for dual intent um the way that the h-1b and the l-visa do uh where they specifically say that you can be here on this non-immigrant visa but also be applying for an immigrant visa to stay permanently and there's you know no issues with this you won't be questioned about it at all um you know another reason is that in certain circumstances if you're staying with your same employer doing the same job you can travel on your h1b while your green card application is pending so for for many applicants if they're on a different visa once their green card application is filed they are not permitted to leave the united states until they've obtained an advanced parole travel document where they will have abandoned their i-485 green card application if you're on an h1b and you meet these criteria of going back to work for the same employer you don't need that advanced parole document um you can continue to to travel freely on your h-1b without having a period of time where you're waiting for the advanced parole application to be approved and those advanced parole applications can take several months similarly if your immigrant visa category is backlogged it's helpful to be on the h1b because as we discussed in the previous slide there is a process for extending the h1b status while you wait for that immigrant visa to become available um so there's a large benefit there if there is no immediately available on immigrant visa for you so what is the green card process after an h1b um so while you're on an h1b an employer may sponsor you for a green card a very common way this happens is through something called the perm process and the perm process is when the employer will test the labor market in the u.s to determine if there are any willing qualified and available u.s workers for the position if none are found then the employer is going to file a labor certification with the department of labor if that is approved then the employer can file form i-140 with uscis along with proof that the employer has the ability to pay the prevailing wage that's required and prove that the employee meets all the requirements for the job so has the degree has the experience um that we're all required for the for the perm job if a visa if an immigrant visa is immediately available then the employee can simultaneously apply for a green card so you can file your i-140 along with the green card application or you can get the i-140 approved and then immediately file the green card application with uscis or you could apply at the national visa center or u.s consulate abroad if you prefer that being said if you're working in the united states and you primarily live in the united states for most for most applicants applying with uscis is going to be the way that they you know prefer all right do i have to prove that the company cannot find u.s workers for an h1b uh this is another common um you know misconception uh it's not a requirement for the h-1b visa for most employers so for the perm you do have to prove uh that you cannot find u.s workers for the position but for the h1b you know you don't have to do that only in some circumstances so there are some h1b employers h1b dependent employers meaning having more than the normal amount of hmb workers or willful violators so the department of labor or the department of justice has found the employer committed willful failure or a misrepresentation of a material fact um so for these two types um they uh they must attest that they will not displace u.s workers and they do have to actually recruit um for u.s workers for the h-1b position before filing an h-1b petition um you know that being said for the vast majority of employers applying for h1bs um it doesn't you know this doesn't apply um all right so i believe that um we've come to the end of the the slideshow and i don't believe that we've had any questions that have come in so i want to thank you all for participating today um and uh we will send you the webinar and the other documents that were mentioned at the beginning of the webinar thank you and have a nice day