Learn How Your H1B Visa Attorney Can Help

The H1B visa is an employment-based, nonimmigrant visa that allows U.S. employers to hire qualified foreign workers. It is temporary and typically lasts up to three years, so its holder will not be granted permanent residence in the United States. However, an H1B visa can be renewed once, and holders can seek to adjust their status and obtain a green card and, eventually, citizenship.

Unlike family-based petitions and other employment visas, the H1B visa application is initiated by the employer rather than the potential employee. Therefore, both the employer and prospective worker will have to meet some strict U.S.C.I.S. eligibility criteria and submit the required documents along the way.

Hiring an immigration law firm or attorney can benefit both the employer and potential employee to ensure the process runs smoothly.

Eligibility for an H1B Visa

According to the U.S. Citizenship and Immigration Services (U.S.C.I.S), the H1B immigrant classification covers people employed in the following classes:

A specialty occupation
Services of exceptional merit and ability related to a Department of Defense (D.O.D.) cooperative research and development project
Fashion industry with recognized and distinguished abilities

Each of these three classes of workers has its unique requirements.

Specialty Occupations

A specialty occupation, according to the U.S.C.I.S., requires practical and theoretical knowledge in a highly specialized field as well as a bachelor’s degree or higher. Moreover, the job should meet one of the following criteria:

It requires a bachelor’s degree or similar academic qualification at a minimum
It is complicated, and only someone with a particular degree can perform it
The employer requires someone with a specific degree for the open position

For foreign nationals to qualify to work under specialty occupation positions, they must have one of the following:

A U.S. bachelor’s degree or higher from an accredited higher institution
A foreign degree that is equivalent to a U.S. bachelor’s degree or higher from an accredited higher institution
A state certification, license, or unrestricted registration that allows them to practice in the specialty occupation

D.O.D. Researcher or Development Worker

Jobs under this category must require a bachelor’s degree or higher for the employee to perform the job. Also, the employer must submit the petition along with a few documents, including:

A verification letter from the D.O.D. research manager
A description of the intended employee’s duties and date of employment
A statement indicating the names and dates of employment of other noncitizen employees working on the project and those who left employment within the last year

Similar to specialty occupations, the eligibility criteria for the potential employee in this category include having at least a U.S. bachelor’s degree or its foreign equivalent from an accredited tertiary institution.

Fashion Model of Extraordinary Ability

Jobs under this category must specifically require a prominent fashion model. Furthermore, the fashion model must be renowned and be a person of distinguished ability.

H1B Visa Application Process

Step 1: Apply to the Department of Labor for a Labor Certification Application (L.C.A), which you can fill out and file online. An L.C.A. is not required if you’re hiring a D.O.D. researcher or development worker. This application ascertains that the employment meets the labor requirements, which include the following:

The potential employee will receive the prevailing wage of people doing the same job with the same experience level or the prevailing wage paid to people who perform similar jobs within the intended geographic area of employment.
The employer must have notified the office of their intention to file an I-129.
At the time of the application, there should be no strike, protest, or workplace lockout.
Employment of the intended foreign national(s) must not harm the working condition of the current employees.

Step 2: Once the L.C.A. is approved, the employer needs to submit it with form I-129 to the U.S.C.I.S. If approved, the employer will receive an approval notice. Then, the worker can apply for an H1B visa with the U.S. consulate or embassy in their country.

Step 3: The consulate will schedule the worker for an interview, and if it is satisfactory, they will be issued a visa. Upon arriving in the U.S., the border patrol admits the worker, and their three years visa limit begins to count. Upon expiry, they may extend it to a maximum of six years. However, some exceptions under the American competitiveness in the Twenty-First Century Act may allow a longer extension.

H1B Visa Cap & Lottery System

The cap and lottery system for H1B visas is a mechanism used by the USCIS to limit the number of H1B visas granted each year and to randomly select which applicants will be considered for these visas.

The cap is the annual limit on the number of new H1B visas that can be issued in a fiscal year. However, the demand for this particular visa often exceeds the annual cap, leading to the implementation of the lottery system.

When USCIS receives more applications than the visas available during the first few days of the H1B filing period, a random selection process or ‘lottery’ is conducted.

The lottery is carried out in two steps.

In the initial selection process, all submitted petitions, including those eligible for the advanced degree exemption, are included in the initial selection process for the 65,000 caps.
In the second step, any unselected advanced degree petitions are included in the selection process for the 20,000 additional visas.

In some cases, some H1B petitions are exempt from the cap, including those filed but higher education institutions, nonprofit organizations, and government research organizations.

Working with your H1B Visa Attorney

Navigating the issues related to immigration and visa could be challenging. It is better to take help from the specialized knowledge of an experienced attorney. Your attorney will help you from the legal fees submission step till the end to bring the best possible outcome.

How Can an Attorney Help?

Enlisting the legal services of an H1B visa attorney is advisable because the H1B visa application process is complicated, and the eligibility requirements to get work permits can be tricky. A trained lawyer can provide you with the proper guidance throughout the process.

Furthermore, if you need to go to or already have a case in immigration court, you will need capable representation to increase the odds of winning your case. To hire an experienced and trained lawyer who offers immigration law services for your H1B visa process, reach out to the law office of Andrew T. Thomas, Attorneys at Law.

Frequently Asked Questions

What Is the H1B Processing Time?

Receiving a response to your H1B visa application typically takes a few months from the submission date — usually between three and six months. However, when filing the form I-129, the petitioner can pay for premium processing service to receive a decision within 15 days. To do this, the petitioner needs to file form I-907 with their petition and pay the required fee. However, this is the only part of the H1B visa process that can be sped up.

What Is the Cost of an H1B Visa?

The filing fee for form I-129 is $460. However, if the foreign worker has dependents, they may have to bear the costs of an H4 visa for each dependent, which costs about $410 per petition. For the premium processing service for the H1B visa, the petitioner will be charged $2500.

The visa stamp and attorney fees vary depending on the employee’s country of origin and the attorney hired.

Can an H1B Visa Holders Bring Their Family Along?

Yes, H1B visa holders can bring their dependents, i.e., spouses and minor children, along with them to the U.S. on an H4 visa. They can apply for this visa once the U.S.C.I.S. petition for nonimmigrant workers, form I-129, has been approved.