H1B Nonimmigrant Visa

1.  H 1B visa in general.

An H1B visa is a one of temporary worker visas for persons who want to enter the United States for employment lasting a fixed period of time. This visa requires the prospective employer to first file a petition for a foreign worker with U.S. Citizenship and Immigration Services (USCIS). The H1B visa status is the most common path to an Employment Based Green Card.

2.  Eligibilities for H1B applicants.

To qualify for H1B status, the foreign worker must possess the required degree or its equivalent or possess a certificate of license that permits the foreign worker to immediately undertake the profession in the state of intended employment.

3.  Filing fees.

The U.S. employer should pay the filing fees for the H1B petition and the attorney fee is optional.

The fees are:

  • Base Filing Fee: $460.00
  • ACWIA Fee: $750.00 or $1500.00 if more than 25 employees
  • Fraud Prevention and Detection Fee: $500.00
  • Premium Processing Fee: $1,225.00 (Optional)

In addition, a Pub. L. 114-113 fee in amount of $4,000.00 should be included if the U.S. employer employs 50 or more employees in the United States and more than 50% of these employees are in an H-1B, L1A or L1B nonimmigrant status.

4.  H1B application process.

Assuming that the foreign workers found a sponsoring company, the H1B application process will begin by the filing of a Labor Condition Application (“LCA”) with the Department of Labor (“DOL”).

Through a LCA, the U.S. hiring employer must attest that hiring a foreign worker will not be an adverse effect on the U.S. workforce in the terms of wages, working conditions, no strike/lockout, and notice requirements.

Once a LCA is filed, the DOL will review the application and make a decision of whether to certify or deny the application within seven (7) working days.

After a LCA is approved or certified, the U.S. employer must file a Form I-129, Petition for a Nonimmigrant Worker with the USCIS. Through the I-129 petition, the U.S. employer will need to prove that the intended foreign worker is qualified for an offered job position and that the employer has an ability to pay the prevailing wages required by the LCA. All relevant supporting documents must be provided at the time of filing the petition.

Once the Form I-129 is approved by the USCIS, the foreign worker can either apply for an H1B visa at the U.S embassy or consulate in his or her home country or the foreign worker can start working from a valid date indicated on the approval notice if he or she properly changed his or her legal status in the United States. All approved new and first H1B applications will be effective from October 1st and other approved H1B applications will be effective on the Change of Status effective date.

5.  H1B visa processing time.

The typical duration for processing H1B application takes between two (2) to six (6) months. However, premium processing is available for H1B applicants to expedite the entire process. The USCIS will make a decision on the case within fifteen (15) calendar days. However, please note that the premium processing costs an additional $1,225.00.

6.  Period of stay.

An H1B may be initially issued for a minimum period of one (1) or for three (3) years. Extension may be obtained, but the total period of authorized stay cannot exceed six (6) years, unless the foreign worker’s green card case retains in process.

7.  H1B cap.

There are limits to the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H1B status. Currently, 65,000 visas with an additional 20,000 visas under the H-1B advanced degree exemption in which foreign worker must have earned a master’s or higher degree from a U.S. educational institution are allowed. The USCIS will accept all Cap-Subject applications for the following year starting from April 1st of the current year. For example, for the 2017 H1B Visa season, the application must be submitted by April 1, 2016. The H1B Visa quota cap has been easily reached in recent years. Therefore, it is highly recommended to start an H1B visa process at least at the end of February. If, however, a foreign worker would like to extend his or her current H1B status or to change his or her current H1B sponsoring employer, then a new U.S. employer can file a new I-129 petition at any time before the H1B expires.

8.  Family of H1B visa holder.

An H-4 visa will be issued to all immediate family members of the H1B visa holder. The H-4 visa holders cannot legally work in the US unless they have other eligibilities under 2014 Obama Immigration Action, which requires the H1B visa holder to have been approved under an 1-140 Immigrant Petition for Alien Worker or if his or her H1B visa status was extended beyond the maximum 6 years because of his or her green card process.

The above is for information purposes only and does not constitute legal advice. For more information or to consult with our attorneys, please feel free to contact The Choi Law Group, LLC.