Employers can sponsor exceptional foreign talent through the H-1B visa, allowing them to work for them for three years initially and the option to extend the visa for an additional three years. Foreign talent must fill a position in a specialty occupation, which, as your New York City H-1B attorney, we can assist you with.
Specialty occupations include but are not limited to:
- Architecture
- Business
- Education
- Engineering
- Health and medicine
- Law
- Mathematics
- Physical sciences
- Technology
Hotbeds for technology, such as Manhattan and Brooklyn, especially startups, gain a competitive advantage with access to foreign talent. H-1B visas help organizations address workforce shortages, bring diverse skillsets to the current workforce, and add specialty skills that give sponsors a competitive advantage.
Call us at +1 (855) 546-0015 to learn how we can help you with the H-1B visa and what we can accomplish together.
H-1B Eligibility Requirements
Four main requirements must be met for a foreign national to be eligible for an H-1 B visa.
- A bona fide offer must be made to the beneficiary. Evidence must show that the sponsor has a need for the beneficiary in the workplace.
- A valid employer-employee relationship must exist. What does this mean? An employer must have control over the relationship, such as determining the hours they work and how the employee completes their duties.
- Current workplace labor disputes cannot be ongoing. For example, there cannot be a strike at the workplace. If there is a dispute, approved petitions may be suspended.
- The position must be in a specialty occupation.
Specialty occupations are positions in which a foreign worker has theoretical or practical knowledge and is based on job duties. Sponsors must supply documentation outlining the beneficiary’s duties, tasks, and responsibilities.
USCIS will analyze the beneficiary’s work experience and education, the nature of the occupation, current industry standards, and more to determine eligibility. A bachelor’s degree or higher, or the equivalent, is necessary for most approvals.
Even if the employee doesn’t meet the academic requirements for the position, exceptions do exist, such as:
- Recognition that the beneficiary is a leader in the field.
- Evidence that the beneficiary has made significant contributions in the field.
- Mention of the beneficiary in published material.
- Professional association or membership
Employers must pay the greater of actual or prevailing wages, as found on the DOL Online Wage Search.
How the H-1B Lottery Works
The H-1B lottery allows up to 85,000 visas to be approved annually. Of these, 20,000 are for foreign professionals with a master’s degree or higher from a U.S. university. A bachelor’s degree or higher is required for the remaining 65,000 visas.
Certain petitioners are exempt from the cap, including:
- Government research organizations
- Nonprofit research organizations
- Institutions of higher education
- Nonprofit associations with an institution of higher education
Working through the application with a NYC, NY H-1B attorney helps streamline the process by ensuring all procedures are followed. Steps in the application process include:
Labor Condition Application (LCA)
Employers start the petition process by submitting the LCA to the Department of Labor. The LCA is valid for a period of three years and verifies that hiring a foreign worker will not impact U.S. worker conditions and wages.
Form I-129 Filing
Upon approval of the LCA, the next step is to file Form I-129 with the USCIS. Petitioners must supply supporting documentation for visa approval, along with information about the employment relationship.
Filing Fees
Base fees for filing Form I-129 vary but must be paid and can be found on the fee schedule.
Providing Supporting Documentation
Transcripts, certifications, employment agreements, and other supporting documentation must be filed next.
USCIS workloads impact processing times, which range from three to four months.
What if You’re Selected in the H-1B Lottery?
If you’re chosen for the H-1B lottery, you’ll follow these steps:
- Prepare and complete your petition within 90 days.
- Gather your supporting documents to include with your petition, including but not limited to an offer of employment letter, detailed job description, transcripts from your university, letters from previous employers, employer support letter, LCA, a copy of your passport, and biometrics data. Your attorney can walk you through this step to ensure you have all of the necessary supporting documents.
- Attend an interview (if applying from overseas). You may or may not be required to attend an interview and will be notified by mail if this step is required.
- Wait for USCIS’s decision. If your petition is approved, you will be sent an I-797 Approval Notice.
It’s important to note that USCIS may issue Requests for Evidence (RFEs) to clarify or supplement information in your petition, which can extend the processing time. If you’re already in the U.S., maintaining legal status throughout the application process is crucial to avoid complications with your visa status.
Visas are valid for three years with the option for an additional three-year extension. Family members may also be able to seek visas to join the H-1B visa holder in the United States.
Seeking permanent residency through the green card process is common for anyone wanting to reside in the United States permanently.
What if You’re Not Selected in the Lottery?
If you are not chosen in the lottery, it doesn’t necessarily mean that this is the end of your immigration journey.
An NYC, NY H-1B attorney can help you explore alternative paths, such as:
The O-1A Extraordinary Ability Founder Visa
The O-1A visa is a non-immigrant visa aimed at individuals with extraordinary ability in business, science, education or athletics.
Founders and talented individuals who have demonstrated a high level of achievement may qualify for this special visa.
To qualify, you must have an agent or employer acting on your behalf to petition USCIS, and that agent will need to meet certain requirements. Beneficiaries must also provide evidence of their extraordinary ability, which may come in the form of:
- Awards or prizes in their field.
- Published material in trade or professional publications.
- Membership in professional organizations that require members to have outstanding achievements.
- Original scholarly, scientific or business-related contributions of major significance.
- Evidence of participation in a key role for organizations with distinguished reputations.
- Evidence of high salary compared to others in the field. For founders, this may come in the form of equity held in the company.
- Service as a judge of the work of others in the field.
- Authorship of publications or scholarly articles in the media or professional journals.
Applicants must have evidence from at least three of these eight categories. We can help you determine whether you qualify for this visa and navigate the petition process.
The L-1 Intracompany Transferee Visa
An L-1 visa is a temporary visa that allows foreign companies to transfer managers and executives to subsidiaries or affiliates in the U.S.
USCIS scrutinizes L-1 cases and has strict requirements.
The manager or executive must have:
- Been working for a qualifying employer for a continuous year within the three-year period preceding the application.
- Intentions to provide managerial or executive services for the employer’s U.S. branch.
The employer must also have a valid relationship with a foreign company that meets USCIS’s qualifications and must be doing business within the U.S. and at least one other country for the duration of the applicant’s stay.
If these two visa programs are not an option, other paths may be available, such as:
- EB-1 National Interest Waiver (NIW) (Permanent Residence)
- EB-1A Green Card (Permanent Residence)
- E-1 Trade, E-2 investment, E-1/2 essential Employee Visas
- B-1 Business visitor visa
To learn more about your options and the next step in your immigration journey, schedule a consultation or enroll in our Legal Launch program today.
How to Choose the Best NYC H-1B Visa Attorney for Your Career
The H-1B visa program provides opportunities for founders, startups and individuals to achieve their talent and professional goals.
However, the journey to obtaining a visa can be a complicated one.
Finding the right immigration attorney is key. An experienced attorney can simplify the process by walking you through every step.
Choose an attorney who:
- Understands the H-1B visa process and its complexities. Our experienced team can help you navigate the system and achieve your goals.
- Will answer your questions and respond to your messages in a timely manner.
- Has the experience and competence to guide you through the entire process. We have helped thousands of startups and founders with U.S. immigration.
- Creates solutions and strategies based on your individual needs and goals.
- Will manage your case, so you can focus on other high-value tasks.
- Is compassionate and will advocate for your interests every step of the way.
At Alcorn Immigration Law, we take a tailored approach to every case and leverage our years of experience to help you achieve your H-1B visa goals.
About Sophie Alcorn of Alcorn Immigration Law
Sophie Alcorn, the founding attorney of Alcorn Immigration Law, is a California State Bar Certified Specialist in Immigration and Nationality Law.
As a New York H-1B attorney, she helps motivated employers and individuals achieve their immigration goals through the H-1B visa program.
Her passion for helping startups and tech companies hire and retain foreign talent has helped Alcorn Immigration Law grow to become a top rated law firm in California for technology startups.
Sophie is:
- The host of The Sophie Alcorn podcast
- The author of Ask Sophie™ The Founder’s Guide to Visas and Green Cards
- TechCrunch’s Ask Sophie™ contributor
With the help of her team, Alcorn Immigration Law has developed a strategic and tailored approach that has helped numerous clients secure H-1B visas.
Helpful Immigration Resources For H-1B Visas & More
- Alcorn Immigration Law’s Monthly Newsletter
- Ask Sophie™ column, as seen on TechCrunch
- The Sophie Alcorn Podcast
- Sophie’s book: Ask Sophie™: The Founder’s Guide to Visas & Green Cards
- Our Free Webinars and Live Events
Let’s Accomplish, Together with Alcorn Immigration Law
At Alcorn Immigration Law, we know that hiring and retaining foreign talent is a top priority for many startups and tech companies.
We also know that the H-1B visa process can be intimidating and challenging to navigate on your own.
Our team can help you understand the process, develop a strategy to achieve your goal, and guide you through each step.
To speak with an NYC, NY H-1B attorney and start the process of petitioning for an H-1B visa, contact Alcorn Immigration Law today.
