The H-1B visa is one of the most competitive visa classifications available to foreign workers. With its wide range of possible occupations and flexibility, it’s no wonder why thousands of people file petitions each year. Because of the number of petitions, the USCIS has developed measures to limit the number of H-1B visas granted each year.
H-1B Requirements and Advantages
The requirements for an H-1B visa are these:
- You must have an offer for a specialty occupation from a U.S. employer to work for the duration of your stay.
- You must have a bachelor’s degree or higher in a field related to your U.S. job.
- Your relationship with your prospective employer must be employer-employee. This means that your employer should have control over your employment.
- Your employer must be able to pay you the prevailing wage.
Unlike other work visas such as the L-1 or the O-1, which have very specific requirements for qualification, the H-1B visa has relatively few requirements. You do not need to be an executive, manager, or have an extraordinary ability to qualify.
The H-1B is a dual intent visa. This means that you can pursue lawful permanent residency while under H-1B status. This also means that you do not have to maintain a residence in your home country to remain in status.
This visa allows you to remain in the U.S. for three years with a maximum extension to six years. If you have filed an I-140 petition for a green card, you may be able to extend your stay past the typical maximum.
The H-1B visa also allows you to change employers as well as have multiple employers at the same time. You can also choose to work either part-time or full-time.
As an added benefit, your spouse and children can enter under H-4 status and are permitted to study in the U.S.
However, all of these advantages have made the H-1B visa very highly sought-after. Due to the overwhelming amount of petitions that they receive each year, the USCIS has put a lottery into effect that puts a cap on the number of visas that are available annually.
There are three main categories that you may fall into for the lottery based on the number of petitions that will be selected:
- Master’s Cap – 20,000
- Regular Cap – 65,000
- Chile-Singapore H-1B1 Cap – 6,800
During the beginning of April, the USCIS begins accepting petitions for the following fiscal year. If the cap is reached within 5 business days, then the lottery will be closed and no more petitions will be accepted.
For example: In 2016, the USCIS began accepting petitions on April 1st for the following fiscal year (2017). By April 7th, they had received over 236,000 petitions and closed the lottery.
They first randomly selected 20,000 petitions from those that filed under the Master’s Cap. Those that were not selected were re-entered into the Regular Cap. Then 65,000 petitions were selected for the Regular Cap, totaling 85,000 visas.
Anyone who submitted a petition that was not randomly selected will be refunded their filing fees and will be able to submit a petition the following year.
It is important to note that according to the Free Trade Agreement, 6,800 visa spots are set aside each year for citizens of Chile and Singapore. These spots are taken from the regular cap, effectively making the total 58,200 for applicants who are not from those two countries.
Do I Qualify for the Master’s Cap?
The advantage of being qualified for the Master’s Cap is that if you are not selected the first time, your petition will be entered a second time in the regular lottery. This means that you will have two chances to be selected.
In order to qualify, you must:
- Have a master’s degree or higher from an accredited U.S. institution. Check with your attorney to learn if your institution is accredited.
- Have an advanced degree in the same field as your intended job in the U.S.
Am I Exempt from the Lottery?
There are certain circumstances that could make either you or your employer cap-exempt. You can avoid the lottery if:
- You have already been counted against the cap
- You are extending your stay
- You are transferring employers.
Your employer could be considered cap-exempt if they fall into one of the following categories:
- Institute of Higher Education
- Non-Profit Organization
- Governmental Research Organization
Being offered a position by any of these three employers may exclude you from the lottery and allow you to obtain an H-1B visa without competition. However, be sure to consult with your attorney to find out if your employer falls into one of the above categories.
What is the Application Process?
The entire petitioning process is mostly fulfilled by the prospective employer. You, the beneficiary, will only be responsible for what takes place at the U.S. Consulate or Embassy in your home country.
- Your employer must first file an I-129 Petition for a Nonimmigrant Worker on your behalf between April 1st and the close of the annual lottery.
- Then your employer must file a Labor Certification Application to the Department of Labor.
- If the petition is selected, your employer will receive an I-797 notice of approval.
- Once both the petition and the LCA have been approved, you can go to the U.S. Consulate or Embassy in your own country with copies of the approvals and apply for your visa.
- Once you obtain the visa, you will be able to start working on October 1st.
What are the H-1B Visa Fees?
It is important to note that the petitioning employer is fully responsible for all of the fees associated with the petition. Each individual fee should be made out in a separate check to avoid delays.
- I-129 basic filing fee: $460
- ACWIA Education and Training Fee:
- $750 if your employer has fewer than 25 employees
- $1,500 if your employer has more than 25 employees
- Fraud Prevention and Detection Fee: $500
- Fee for Public Law 114-113: $4,000. Consult with your attorney to learn if this fee is applicable to your employer.
Your employer will not be responsible for any fees that you encounter at the U.S. Consulate or Embassy while applying for the visa.
This feature is available to anyone who files an I-129 petition. For a fee of $1,225 that can be paid either by you or your employer, it reduces the usual processing time from several months to 15 calendar days.
However, using premium processing does not mean that you or your employer are cap-exempt. The USCIS announces each year when they will begin adjudicating petitions with premium processing. It also does not mean that you will be able to begin working with your employer sooner. You will still only be able to start your position on October 1st.
How Our Attorneys Can Help
Because of the havoc and anxiety associated with the H-1B visa lottery, it can be easy to overlook important aspects. Working with a qualified attorney can help make sure that nothing is missing and that your petition has the best possible chance of being selected.
Our immigration attorneys use an optimized petitioning process that they have used with countless clients to help them obtain their H-1B visas. If you would like to schedule a consultation with one of our lawyers, feel free to contact us.