H-1B Visa Process Explained: A Comprehensive Guide for Applicants

[00:00:15][Music] hello and welcome to the comprehensive guides on H1B my name is m I an attorney I've been practicing immigration law in the United States for last 6 years in today's video we are going to cover the H1B Visa the biggest immigration program in the United States in today's video we will be covering everything you need to know on the H1B whether you are an employee prospective employer student or just curious about the H1B this video will help you navigate the complexities of obtaining an H1B and maintaining your status let's outline what we are going to discuss in this video this video will focus on what first time H1B applicants and beneficiaries need to know first we'll discuss what the H1B Visa is including its three main categories with today's Focus specifically on H1B specialty occupations the most common and widely used category next we'll break down what qualifies as a special occupation how to determine whether a job meets the H1B standard and the key criteria USCIS uses to evaluate these positions then we'll explain the qualifications required for foreign workers including education experience and alternative Pathways for those without a traditional degree following that we'll discuss the employer responsibilities including demonstrating the ability to pay wages and ensuring compliance with H1B regulations we'll also walk through the H1B cap system the electronic registration process the labor condition application LCA and the form i129 petition filing finally we'll cover the adjudication process approval and denial scenarios and what happens after an H1B petition is granted including duration of stay extensions and dependent Visa options by the end of this discussion you will have a clear road map of the entire H1 be process from eligibility to filing and Beyond in our next FAQ session we'll dive into topics for those who are already on H1B status including changing employers amending petitions H1B portability extending status beyond the standard limits handling concurrent employment managing layoffs and switching from a cap exam to a cap subject employer but for now let's get started with everything you need to know as a first time H1B applicant the information provided in this video is for educational and informational purposes only and should not be interpreted as legal advice if you require specific guidance regarding your h1v status Visa applications or travel concerns please seek assistance from a qualified immigration attorney neither I Visa mate nor anyone affiliated with this content assumes responsibility for any actions taken based on the information Shar immigration policies are subject to change so always verify the latest regulations with the United States citizenship and Immigration Services the United States Department of State or your legal council before making any travel or VISA decisions what is the H1B Visa let's start with the basics the H1B is a temporary non-immigrant Visa classification in the United States that allows us employers to hire foreign workers these roles typically require specialized knowledge or unique talents there are three main categories first specialty occupations H1B this is by far the most common category it's designed for jobs that demand in-depth theoretical and practical knowledge usually gain through at least a bachelor's degree in a closely related field second Department of Defense DOD researchers H1 B2 this category covers individual doing exceptional research or development work under DOD projects third fashion models H1 B3 reserve for models who have distinguished Merit and ability in other words they're prominent in the fashion industry and specifically needed for highlevel modeling jobs all of these fall under the H1B umbrella however most people when they say H1B are talking about the specialty occupation category the biggest immigration program in the US targeting foreign workers where employers demand for specialized skills that the foreign worker can provide we will have some discussion on H1 B2 and H1 B3 later in this video our discussion in this episode is mostly limited to H1B specialty occupation what is specialty occupations all positions are not speciality occupation speciality occupations require a theoretical and practical understanding of a specialized field for example software development accounting engineering or architecture whether a position is specialty occupations is generally determined whether a bachelor's degree or higher or an equivalent combination of education and experience in a directly related field is required to perform the job duties and responsibilities it's a fancy way of saying the job needs special knowledge and a relevant bachelor's degree so how do you know if a position me meets the specialty occupation standard the job must satisfy one of these conditions first in the United States the standard requirement for this job is a bachelor's degree or hire in a specific field for example let's say you're hiring a software developer who will build complex web platforms because these duties typically involve Advanced knowledge of programming languages databases and system design usually covered in a computer science or computer engineering bachelor's program it's standard in the United States that someone in this role would need that degree or its equivalent that makes it a classic specialty occupation in the United States second it is the industry standard that other comparable companies in the similar industry commonly require a related bachelor's degree for parallel roles for example a boutique firm ABC Corporation is hiring Z as a data scientist ABC Corporation can show that Google Amazon web services Apple hire data scientists with a bachelor's degree in data science computer science or computer engineering third the employer or the sponsor themselves who is hiring this H1B worker generally requires specific degree for the position for example employer ABC Corporation requires a bachelor's degree in data science computer science or computer engineering for similar positions fourth the job duties are specialized or unique that only someone with a relevant Bachelors or higher degree would typically be able to do the work for example you are hiring an electrical engineer for an underground cable project that project requires knowledge of electrical engineering and some knowledge of computer science put simply it is not just you are hiring someone with a bachelor's degree or hired degrees the position itself must genuinely require that level of specialized education qualifications of the foreign workers now what about the individual who's going to fill the job they also must meet one of these requirements hold a US bachelor's or higher degree in the same field the job requires from an accredited college or university alternatively have a foreign degree that's equivalent to the us bachelor's degree or hire if your degree is not from the US you might get your foreign credentials evaluated by an approved service to show the degree equivalency please note while a bachelor's degree is typically required for most H1B specialty occupations individuals without a full degree can still qualify if they have a combination of Education specialized training and progressively responsible work experience equivalent to a US bachelor's degree for example imagine you completed 2 years of college in computer science then spend 6 years working as a software developer taking on increasingly complex projects and earning industry certifications if a recognized evaluation service reviews your academic credits and work history and concludes that you've gained the equivalent Knowledge and Skills of a four-year computer science bachelor's degree you could meet H1B eligibility despite not holding a Trad bachelor's degree even if you haven't attended college at all you may still qualify for an H1B by demonstrating that your specialized training and progressively responsible work experience is on par with a 4-year degree in Practical terms some evaluators use a three for one rule where three years of relevant increasingly complex experience can count as one year of college level study if you can show through expert letters of formal evaluations that you've acquired the same depth of knowledge typically taught in a bachelor's program your specialized training and progressively responsible work experience you may still meet the H1B degree equivalency requirement if the position or occupation requires you to have license registration or certification you must possess an unrestricted license registration or certification that lets you practice the occupation fully in the state or place where you will work work for instance if you're an attorney you must have a State Bar license to practice law there or if you're an engineer You' need a professional engineering license issued by the relevant state board employer ability to pay the foreign worker another question becomes relevant especially for small employers or newly formed entities whether they qualify to sponsor an H1B worker and what is the level of income they should have there is no specific amount either gross or net income that an employer must earn in order to sponsor an H1B worker US immigration regulations do not set a minimum revenue or profit threshold for H1B sponsorship instead employers are broadly required to be a Bonafide us business entity such as a corporation LLC or partnership with a valid Federal employer identification number Ein demonstrate the ability to pay the required wage as stated on the labor condition application or LCA essentially the employer must attest and then follow through that they can pay the H1B worker at least the prevailing wage or the actual wage whichever is higher for the occupation in the local area maintain compliance with all other H1B requirements including posting the LCA ensuring working conditions do not adversely affect other employees and so forth while USCIS or do might request evidence of an employer's Financial Health particularly if it's a very small or newly formed company there is no fixed gross or net income requirement in the regulations for example imagine a startup software firm with just a handful of employees that wants to hire a specialized software developer on an H1B they may not have a large annual revenue yet but they can show investor funding or steady contracts that demonstrate their capacity to pay the developer a competitive salary as long as they can back up that they'll meet or exceed the prevailing wage and follow all other H1B rules USC's typically won't deny the petition simply because the company is small or new H1B capap Basics we have learned what occupations might be considered as specialty occupations who might fill those occupations and how much the employer's ability to pay the foreign worker matters in the process next we have to learn how the H1B cap system works most H1B petitions fall under an annual limit or cap that currently allows for 65,000 new H1B visas each fiscal year there's also a special 20,000 set aside for individuals who hold a US master's degree or higher this means that once these spots fill up no more cap subject h-1bs can be granted until the next fiscal year however some employers and positions are cap exempt meaning they don't have to compete for one of these limited slots examples include universities nonprofit organizations affiliated with those universities and government or nonprofit research organizations if you work for one of these cap exempt employers you can typically apply for an H1B any time of year without worrying about the cap if you are subject to the H1B cap you may need to go through a random selection process often called a lottery to compete for one of the limited Visa spots each fiscal year this process typically requires completing an electronic registration within a specific window usually early in the year after the lottery for selected registrant USCIS sets deadlines for submitting your labor condition application LCA and filing the H1B petition if some of the selected registrants fail to file the their LCA and petition in time or if there are still unfilled spots for that fiscal year USCIS May hold a second lottery for those who registered but were not selected the first time cap except employers generally do not have to participate in the annual H1B lottery or registration process instead they can file H1B petitions at any time of the year as they aren't Bound by the numerical cap however they must still meet all all other H1B requirements they generally start from the labor condition application or LCI and must demonstrate that the job meets the definition of a specialty occupation we already know that cap subject H1B workers must go through a specific set of steps first comes the electronic registration next obtaining a certified labor condition application LCA and finally filing the form i19 petition with with USCIS let's now take a closer look at each of these stages the electronic registration process in 20120 USCIS introduced an electronic registration process for H1B cap subject petitions employers prospective petitioners or their authorized representatives must register electronically through a USCIS online account during a specific period typically in early spring often in March for the upcoming fiscal year USIS then conducts a random selection from among these registrations to identify which beneficiaries will be eligible to file a full H1B petition beginning with the 2025 fiscal year USCIS has been using an employee Centric or beneficiary Centric registration approach this means if multiple employers register for the same individual it does not not increase that person's overall odds in the lottery only one registration slot is counted for the beneficiary however if the beneficiaries selected they can choose which of those registered employers will proceed with the LCA and form I 129 filing this change aims to discourage fraud where multiple employers or agents might previously have submitted several registrations for the same applicant to unfairly boost their chances of selection the labor condition application or LCA process once an employer's H1B registration has been selected the first major step before filing the full H1B petition is to complete and submit a labor condition application LCA to the Department of Labor t l if the employer or the position is H1B capap exempt there is no need for the annual registration lottery in those cases filing the LCA with the Department of labor is generally the first major step the employer takes before submitting form i129 to USS here's how LCA Works employers typically file the LCA electronically using the foreign labor application Gateway flag system through form ETA 935 or 935e which is the do's online portal for processing LC C and other labor certifications the application captures key information including the job title work site location prevailing wage and the proposed wage rate by submitting the LCA the employer is making legal attestations that one the wage offered to the H1B worker meets or exceeds the prevailing wage or the actual wage for that position whichever is higher to the employment of the H1B worker won't adversely affect the working conditions of similarly employed us workers three there is no strike or lock out at the workplace during the filing period four notice of the lcf filing has been provided either by posting it at the work site or notifying the union bargaining representative if applicable once submitted the do reviews the LCA to check if all required fields are filled out properly and if the attestations are correct if everything is in order they certify the application this certification confirms that the employer is allowed to use the LCA in an H1B petition for that specific position location and wage an LCA is generally valid for up to 3 years depending on the specifics of the H1B petition after receiving the certified LCA from the do the employee emper can proceed with filing form i129 with USCIS with a certified LCI in hand the employer has the green light to proceed they attached the LCI to the i129 petition along with any other required documents and file it at the correct USCIS Service Center or electronically according to current USCIS filing instructions please note that Department of Defense DOD researchers H1 B2 and fashion models H1 B3 both fall under the broader H1B classification but come with their own special conditions H1B 2 is for people performing Services of exceptional Merit and ability on DOD Cooperative research or development projects unlike regular H1B petitions H1 B2 applicants must have at least a bachelor's degree or its equivalent and a verific letter from the dod project manager H1 B2 applicants however are exempt from the annual Lottery and do not require a LCA however unless the employer is otherwise exempt these positions may still be subject to the annual H1B cap and Lottery H1 B3 on the other hand applies to fashion models of distinguished Merit and ability H1 B3 fashion models must show they have achieved National or International recognition and meet industry standards for prominence like H1B specialty occupation workers fashion models are subject to the annual H1B cap and must have an LCA certified by the do before filing their H1B petition form i129 filing once the employer has a certified labor condition application LCA the next step is to file form i129 petition for a non-immigrant worker with US citizenship and Immigration Services USCIS this petition formally requests H1B classification on behalf of the prospective employee if you are cap subject meaning you've gone through the lottery USIS typically gives you a filing window noted on the selection notice during which your employer must submit form i129 and all supporting documents missing this deadline usually means losing your spot if you cxm for instance working for a qualifying University or research institution there's no yearly lottery or cap window you can generally file any time as long as the position is still open but USCIS won't process a petition filed more than 6 months before the intended job start date the employer or their legal representative must fill out the i129 form accurately providing information about the company the position and the foreign Nationals qualifications depending on how USCIS filing guidelines evolve this may involve an online or paper submission so always check the latest USCIS instructions with form i1 29 you have to submit the following documents first Dior certified labor condition application second evidence of specialty occupation to prove a job is a specialty occupation employers often submit a detailed job description outlining specific tasks required tools or Technologies and how these duties necessitate a bachelor's or higher degree in a particular field job postings or industry standards showing that similarly situated compan companies also require a related degree for the same position comparisons to similar roles within the employer organization or industry to demonstrate that the degree requirement is standard for these duties employers may also provide things like organizational charts internal job postings or industry Publications for example excerpts from the Occupational Outlook Handbook to demonstrate that similar positions typically require a specialized degree beneficiary qualifications to show the beneficiaries qualified typical evidence includes copies of diplomas transcripts of certificates from us or foreign institutions if the beneficiary's degree is from outside the United States a credential evaluation is often added to confirm its equivalent to a US bachelor's degree professional licenses registrations or certifications for example a State Bar license for attorneys a CPA license for accountants or an engineering license when there's not traditional degree letters from industry experts plus evidence of progressively responsible work experience can help show the beneficiary's knowledge matches what a formal degree program would provide employer documents sometimes especially for smaller or newer companies USCIS may ask for financial statements tax returns or other proof that the employer is a legitimate us entity capable of paying the offered wage filing fees the employer must submit all mandatory fees which can include the base I 129 filing fee the acwi fee training fee the fraud prevention and detection fee and in some cases the premium processing fee if they want faster adjudication the exact fees can vary so it's important to refer to the USCIS fee schedule for the most upto-date amount education process after USC receives the completed form i129 with supporting evidence they will issue a receipt notice then USCS officers will review all submitted documents to confirm whether the job meets specialty occupation requirements and the foreign worker qualifies requests for evidence or rfes may be sent if the adjudicator needs more information approval or denial if the beneficiary is already in the United States in another valid status for example F1 student visa the employer May request the change of status on form i129 in that case status will be changed to H1B automatically once form i129 is approved if US CIS approves the petition and the beneficiary is outside the US can apply for an H1B Visa at a US Consulate or Embassy if USCIS denies the petition it will issue a written explanation detailing the reasons for the denial and explaining what remedies may be available typically you can file a motion to reopen or reconsider with USCIS appeal the denial to the administrative appeals office if they have jurisdiction or refile the petition with USCIS if the issues that led to denial can be addressed bearing in mind that cap subject cases require a valid registration and an available cap number if you choose to refile period of stay on H1B a typical H1B specialty occupation worker can be approved for an initial stay of up to 3 years with the possibility of extensions under normal circumstances the total time in H1B status cannot exceed 6 years however if you actively pursuing permanent resident status there are ways to extend your H1B time Beyond those 6 Years first if you have an approved i140 but cannot file for adjustment of status because you're waiting for an immigrant Visa number to become available you may be able to extend your H1B status in threeyear increments second if at least 365 days have passed since your perm labor certification was filed or since your i140 immigrant petition was filed you can qualify for one year extensions until your permanent residence is finally decided dependent of H1B spouses and unmarried children under 21 years of age of H1B workers are eligible for H4 status before we wrap up it's important to note that there are many other topics related to H1B that we haven't covered yet such as changing employers amending the petition how portability Works extending H1B Beyond normal limits handling concurrent employment what happens if you're laid off or how to switch from a cap exempt to a cap subject employer we know these are common questions so we'll address them and more in a FAQ session during our next episode where we will dive deeper into each scenario and outline the steps to stay compliant with us immigration rules we've covered a lot today from the basics of the H1B visa to the intricate details of specialty occupations employer responsibilities the cap system the registration process and The crucial steps of filing an LCA and form i129 our goal with this video was to provide you with a clear stepbystep guide to understanding what it takes to apply for an H1B Visa