If you are an employer thinking about hiring foreign workers, or if you are a foreign national interested in working for a US employer, you should consult an H-1B Visa lawyer. You will find the following information useful:

Under the H-1B work visa classification, an employer may sponsor temporary non-immigrant visas for alien professionals or specialty occupation workers with a bachelor’s degree or higher. The H-1B status is available for an initial term of three years and can be extended for an additional three years up to a maximum of 6 years.

Typical H-1B occupations include accountants, computer programmers, architects, engineers, doctors and college professors. An H1B visa lawyer can provide further advice.

There is an annual cap on the number of H-1B visas issued. The current annual cap is 65,000. Additionally, there are 20,000 H-1B visas issued annually to professionals with a master’s degree or higher. Because the number of available visas is limited, it is extremely important to get started on the process as soon as an employer decides to hire an alien worker. There are usually 3-4 times more H-1B applications than the number of annually available visas. Due to this high demand, the U.S. Citizenship and Immigration Services (USCIS) implements an annual cap on H-1B visas and conducts a registration and lottery process to manage applications.

Registration Process:

Electronic Registration: Prospective employers must electronically register each potential H-1B beneficiary during a designated period. This registration requires basic information about the employer and each prospective employee. A non-refundable $10 fee is associated with each registration.

Registration Period: The initial registration period typically opens in early March and lasts for at least 14 calendar days. For the Fiscal Year (FY) 2025 cap season, the registration opened at noon Eastern on March 6, 2024, and closed at noon Eastern on March 25, 2024.

Lottery Selection: If the number of registrations exceeds the annual cap, USCIS conducts a random lottery to select registrations. Only those with selected registrations are eligible to file H-1B cap-subject petitions.

Key Dates:

Registration Period: Early March (specific dates announced annually by USCIS).

Notification of Selection: Typically by the end of March.

Petition Filing Period: Selected registrants can begin filing H-1B cap-subject petitions starting April 1. USCIS provides at least 90 days from the date of selection to file the petition.

How to Register:

Create an Account: Employers must create a USCIS online account to access the registration system. This account can be set up before the registration period begins.

Complete Registration: During the registration period, employers submit registrations for each prospective H-1B employee, providing necessary information and paying the associated fee.

Await Selection: After the registration period closes, USCIS conducts the lottery (if necessary) and notifies employers of selected registrations.

File Petition: Employers with selected registrations can then file H-1B cap-subject petitions for their prospective employees within the specified filing period.

Important Considerations:

Beneficiary-Centric Selection: Starting with the FY 2025 cap season, USCIS implemented a beneficiary-centric selection process to ensure each beneficiary has an equal chance of selection, regardless of the number of registrations submitted on their behalf.

Compliance: Employers must ensure all information provided is accurate and comply with all USCIS guidelines to avoid penalties or disqualification.

If the organization misses the filing period, both the employer and the employee may have to wait another year for the next cap season to file the petition. However, there are cap exemptions for certain types of organizations, for example nonprofit research organizations and universities. Cap-exempt organizations can file H-1B petitions all year round and are not bound by cap season limitations.

To apply for H-1B visa, an employer must be a US company with a federal tax identification number. Foreign businesses not established in the United States cannot use this visa to bring employees here. The employer must prepare and file a Labor Condition Application (LCA) with the Department of Labor (DOL). The employer must describe the position and salary. The LCA also requires the employer to attest to complex facts concerning wages, working conditions, labor conditions and the giving of notice.

After the LCA is approved by the DOL, the employer must file a petition with USCIS, part of the Department of Homeland Security. The petition must demonstrate that the position requires a person in a “specialty occupation”. This means a position that requires a minimum of a bachelor’s degree or its equivalent in experience and/or education in a specific field related to the job.

The employer must maintain a public access file containing information about the required wage to be paid to the H-1B worker and the posting of notice. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees.

Employers are required to pay a fee for each H-1B application. If the employer terminates the services of the employee prior to the expiration of the H-1B status, the employer is also responsible for paying the employee’s return transportation to his or her last foreign residence.

The petition must demonstrate that the position offered is a “specialty occupation”, meaning that it requires at least a Bachelor’s degree or equivalent. The petition must also show that the employee has required qualifications for the specialty occupation and the specific job offered by the employer. If the initial petition does not sufficiently establish that the position qualifies as a “specialty occupation”, USCIS may issue a request for additional documentation (request for evidence, known as RFE), which would delay the process. “Specialty occupation” is the subject of most Requests for Evidence issued by USCIS.

The employee must also be able to prove that his or her foreign university degree and/or work experience qualifies as the equivalent of a US degree.

The employee must maintain lawful status in the United States. To maintain the current H-1B status, the employee must continue to work for the sponsoring employer. Under US immigration laws, a person who fails to maintain lawful status may be deported and never allowed to re-enter the United States. However, the H-1B visa holder may change employers if the new employer files a petition on his or her behalf. Usually, the employee is permitted to start working for the new employer immediately after a change of employer petition is filed.

Individuals who currently hold a valid nonimmigrant visa may apply for H-1B status while in the United States. For example, a holder of an F-1 student visa, may seek to change his or her status to H-1B. However, if the worker is overseas, or needs to travel abroad, he or she will need to apply for an H-1B visa at a US consulate. An H-1B employee may also be eligible to change his or her status, if needed, for example, if they marry a US citizen or decide to become a full-time student.

Must be a US Employer. The employer must be a US company with a federal tax identification number. Foreign businesses not established in the United States cannot use this visa to bring employees here.

File a Labor Condition Application. The employer must prepare and file a Labor Condition Application (LCA) with the Department of Labor (DOL). The employer must describe the position and salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and the giving of notice.

File a petition with US Citizenship and Immigration Services. After the LCA is approved by the DOL, the employer must file a petition with USCIS. The employer must demonstrate that the position requires a person in a “specialty occupation”. This means a position that requires a minimum of a bachelor’s degree or its equivalent in experience and/or education in a specific field related to the job.

Maintain records. The employer must maintain a public access file containing information about the required wage to be paid to the H-1B worker and the posting of notice. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees.

Pay costs. Employers are required to pay a fee for each H-1B application. If the employer terminates the services of the employee prior to the expiration of the H-1B status, the employer is also responsible for paying the employee’s return transportation to his or her last foreign residence. Employers can get further advice from an H1B Visa lawyer.

Demonstrate qualifications. The employee must demonstrate that he or she has required qualifications for the specialty occupation and the specific job offered by the employer. The employee must be able to prove that his or her foreign university degree and/or work experience qualifies as the equivalent of a US degree.

Maintain legal status. The employee must maintain lawful status in the United States. To maintain the current H-1B status, the employee must continue to work for the sponsoring employer. However, the H-1B visa holder may change employers if the new employer files a petition on his or her behalf. Under US immigration laws, a person who fails to maintain lawful status may be deported and never allowed to re-enter the United States.

Individuals who currently hold a valid nonimmigrant visa may apply for H-1B status while in the United States. For example, a holder of an F-1 student visa, may seek to change his or her status to H-1B. However, if the worker is overseas, or needs to travel abroad, he or she will need to apply for an H-1B visa at a US consulate. Employees can get further advice from an H1B Visa lawyer.

Attorneys at I.S. law Firm have helped many foreign nationals obtain H-1B visas, H-1B extensions, or change of status to and from H-1B status. To learn more about our services and for consultation with an H1B Visa lawyer, please use this link: https://www.islawfirm.com/consultation/