An employer can sponsor an employee for an H-1B visa to temporarily work in the United States in a specialty occupation. A specialty occupation is:
An occupation which requires theoretical and practical application of a body of highly specialized knowledge . . . including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Degree Requirements
The employee must have at least a Bachelor’s degree or the equivalent in a specific specialty. Examples of what is equivalent to a Bachelor’s degree could be that the degree requirement is common to the industry, the job is so complex or unique it can only be performed by somebody with a degree, the employer normally requires a degree, or the duties are specialized and complex. If the employee has a foreign degree, it must be evaluated by an educational credentialing organization that determines it to be at least equivalent to a U.S. Bachelor’s degree. Specialized training and progressive experience can be equivalent to a Bachelor’s degree.
Period of Stay
The initial period of stay is valid up to three years, depending on the dates chosen in the Labor Condition Application (LCA). The total period of H-1B status is six years, with one-year extensions available under the AC21 law for individuals in the process of obtaining a green card for permanent residence.
Labor Condition Application
The first step is to get a Labor Condition Application certified by the Department of Labor. In the LCA, the employer attests that there is no strike or lockout; the working conditions will not adversely affect U.S. workers; the employer will pay the greater of the prevailing or actual wages, notice of the filing of the LCA has been given to other employees or the bargaining representative; and if the employer is H-1B dependent, recruitment and non-displacement attestations may apply.
H-1B Lottery
For the past several years, a cap and lottery system has been in place for awarding H-1B visas: 20,000 H-1B visas are available for foreign workers who have at least a master’s degree from a U.S. university, and 65,000 H-1B visas available for those without a U.S. Master’s degree. Of the 65,000 H-1B visas, 6,800 are reserved for Chileans and Singaporeans (H-1B1 visas).
As in the previous year, the U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions during the first five days of April (April 1-5) and conduct a random lottery. In fiscal year 2016, USCIS received approximately 233,000 petitions that are subject to the cap, including petitions from those with master’s degrees or higher, which means a one-in-three chance of being selected.
Some H-1Bs are not subject to the cap. If the petitioner is an institution of higher education, a nonprofit associated with an institution of higher education, a nonprofit research organization or a government research organization, the petition is not subject to the lottery process.
Work Permits for H-4 Spouses
H-4 spouses now have the right to work in specific situations. If the H-1B spouse has an approved Form I-140, Immigrant Petition for Alien Worker (one of the steps in the green card process), or, has been granted an extension under the law AC21, the H-4 spouse can apply for an Employment Authorization Document (EAD) to have permission to work.
$460: fee for Form I-129
$750/$1,500: American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee (depends on number of people employed by employer)
$500: Fraud prevention and detection fee
$2,000: Public Law 111-230 fee
$1,225: Premium processing service fee
- Form G-28: Notice of Entry of Appearance as Attorney or Accredited Representative
- Form I-907: Premium Processing Service
- Form I-129: Petition for a Nonimmigrant Worker
- H Classification Supplement to Form I-129
- H-1B Data Collection and Filing Fee Exemption Supplement
- Certified Labor Condition Application (LCA)
- Initial petition: up to 3 years
- Extensions and subsequent petitions: total of 6 years
- Further extensions: 1 year at a time with AC21
“Dual”
OK to simultaneously seek permanent residence (green card)
Only $10 to See If Your H-1B Candidate Wins in the Spring Lottery
The H-1B visa lottery system is changing fast. And these changes may be a boon for American small businesses and startups and their H-1B candidates. Starting with the April 2020 lottery, employers must now pay a nonrefundable $10 fee to register each candidate for the H-1B lottery. The Department of Homeland Security, which oversees U.S.…
Predicting 2020 U.S. Immigration Changes
Looking ahead to 2020, a lot of changes are in store for U.S. immigration policy. Not through laws passed by Congress, but through rule-making processes from Federal agencies including USCIS. The White House Office of Management and Budget recently released its regulatory agenda, which outlines policy priorities for federal agencies, including the Department of Homeland…
USCIS H-1B Denial Rate Remains High, Requests for Evidence Rise
U.S. Citizenship and Immigration Services (USCIS) has released H-1B data, including records compelled by two Freedom of Information Act (FOIA) lawsuits, that continues to show the impact of Trump administration’s restrictive immigration policies. The approval rate for all H-1B specialty occupation visa petitions remained steady at nearly 85% in fiscal year 2019, which ended in…
Highlighting Creative Immigration Strategies for Founders
Draper University recently invited me to speak to participants of its Silicon Valley entrepreneurship program. In addition to covering the main pathways for international entrepreneurs to move to the U.S. to grow their startups, I focused on the journeys of three immigrant founders. Their stories all show how employing a bit of creativity produces successful…
Register Now! Free Webinar on New H-1B Digital Lottery Starting April 2020
Next April’s H-1B season will be different: U.S. Citizenship and Immigration Services (USCIS) confirmed it is rolling out a new digital system for employers to register H-1B beneficiaries in April 2020. Join me on December 6, noon PST, for a webinar updating you on all the latest. The new system holds great promise for early-stage technology…
Employers Face New USCIS Fee to Register Each H-1B Lottery Candidate
The Department of Homeland Security, which oversees U.S. Citizenship and Immigration Services, has proposed charging a $10 fee to employers to register each H-1B lottery candidate, starting with next year’s lottery. This year, USCIS announced plans to change the H-1B lottery process by requiring employers to electronically pre-register candidates for the annual lottery. For years,…
New Details Emerge on H-1B Lottery Changes
We’re very excited to better understand how U.S. Citizenship and Immigration Services (USCIS) is shaping the H-1B lottery for the future, starting next year. It published two different proposals for the pre-registration process for employers planning to submit petitions in the next H-1B lottery. This year, USCIS changed the H-1B lottery process by requiring employers…
H-1B Denial Rate Reaches All-Time High
The denial rate for initial H-1B petitions jumped to an unprecedented 32% during the first quarter of fiscal year 2019, according to a report by the National Foundation for American Policy (NFAP), which analyzed data from U.S. Citizenship and Immigration Services (USCIS). Since fiscal year 2009, the denial rate for initial H-1B petitions never exceeded…
No More Visas for Biotech, AI, and Robotics?
The U.S. Commerce Department could place limits on which companies can sponsor H-1B and O-1A visas. Commerce is evaluating designating artificial intelligence, biotechnology, and other categories as “emerging technologies” that will be subject to export controls. That could pose challenges for tech startups founded by international entrepreneurs or those employing—or looking to employ—foreign talent. If…
Premium Processing Available for H-1B Petitions in April Lottery—But With Delay
U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for all H-1B petitions. However, USCIS will delay premium processing handling for H-1B petitions submitted for this year’s lottery, which opens on April 1. Two Tracks for Premium Processing This year, only H-1B petitioners who are subject to the lottery and are requesting a…