Breaking Down the H-1B Visa Process
Friday, January 25, 2019
H-1B visa season officially opens on April 1, 2019, but employers seeking these high-demand visas have much work to do to be prepared when the day comes — because believe it or not, they’re typically claimed within a week.
The H-1B program allows companies in the U.S. to temporarily hire foreign workers in occupations that require highly specialized knowledge — workers who have a bachelor’s degree or higher in their specific specialty, or its equivalent, according to the U.S. Citizenship and Immigration Service (USCIS).
Stated simply, the H-1B visa — commonly known as a U.S. work visa — allows American employers to hire highly-skilled professionals that many say they can’t find here. (And let’s face it, recruiting and hiring is becoming increasingly more difficult given the tight labor market.)
So each year, the USCIS opens a total of 85,000 H-1B visas — 65,000 for applicants who have a bachelor’s degree or equivalent, and 20,000 for those with a master’s degree or higher. What’s more, 6,800 visas are reserved for applicants from Chile and Singapore, leaving 58,200 available for the bachelor’s, or general, pool.
These visas are in short supply and high demand, and the process for applying is complicated and laborious. The following will help you so you’re ready to apply on April 1.
Supply, Demand and You
The USCIS begins accepting applications on the first business day of April each year, marking what is called the “fiscal year 2020 cap season.” In 2019, this falls on April 1.
Regulations require that the USCIS accept H-1B applications for at least five business days, and applications received on day one are viewed the same as applications received on day five.
The USCIS accepts applications until all 85,000 visas are allocated, which has been reached within five business days for the last several years. In the H-1B 2019 cap, the USCIS reported that nearly 200,000 eligible petitions were received in the first five days.
When enough applications are submitted in that five-day period, the USCIS stops accepting new applications; it then processes applications based on selections made from a random “lottery” among all petitions received.
H-1B petitions are first processed in the mailroom, where incomplete applications are rejected outright, according to Sarah Corstange, principal attorney at Corstange Law.
“Reasons for outright rejection include improperly addressed filing fee checks, incorrect filing address, missing signatures, uncertified LCA [labor condition application], improper job start dates, and other simple clerical errors,” she wrote in her blog. “Since making one of these small administrative errors can result in a rejection that will shut you out of the H1B lottery for a full year, it’s very important to make sure all of these little administrative details are correct on your application!!”
All petitions that make it past this stage participate in the two-phase lottery.
Phase one is the master’s lottery, in which all master’s cap applicants are thrown into one pot and 20,000 are selected for processing. Master’s cap applications not selected during this first lottery move on to phase two; they’re thrown into the general pool, from which 58,200 applications are randomly selected.
Changing the Lottery: A Pending Proposal
The U.S. Department of Homeland Security (DHS) has proposed two primary changes to the lottery process, the first of which is reversing the order of the lottery.
Should the order be reversed, USCIS would select approximately 65,000 registrations from all submitted during the registration period. Then, a lottery would be conducted from the remaining registrations eligible for the master’s cap. The USCIS predicts that this new process would result in a 16 percent increase in the number of H-1B recipients who hold at least the eligible U.S. master’s degree.
The second plans is to deploy a lottery pre-registration process. So rather than preparing a complete application prior to entering the lottery, employers would instead submit a basic online form. The lottery would proceed based on the basic information submitted and employers selected during this process would be electronically notified — and they would then prepare and submit a complete application within 60 days.
Whether this system will be implemented for the H-1B 2020 cap, however, is uncertain. The system would have to be ready for a registration period that must begin no later than March and end at least two weeks prior to April 1, according to WorkPermit.com.
While waiting to see if the electronic registration system will be functional in time for the 2020 cap could save a lot of time, energy and effort, many employers and attorneys are preparing to file full petitions on April 1.
The H-1B Petition: Where to Begin
The best place to start for the 2020 cap season is to assess your needs. U.S. immigration law firm Fragomen Worldwide notes that getting an early handle on hiring needs and the approximate number of petitions you’ll need to file will allow you to better manage both your budget and the H-1B workload.
Once you know how many petitions you’re filing, work on each candidate’s Labor Condition Application (LCA), which Ogletree Deakins attorneys aptly call “a prerequisite to a properly filed H-1B petition.”
“The LCA is … submitted to the U.S. Department of Labor, which can take up to 10 days to certify the application,” wrote immigration attorneys Brian D. Bumgardner and Katherine C. MacIlwaine. “Employers should keep this processing time in mind to ensure timely approval of an LCA. Timely filing and approval of an LCA will help ensure that an employer is best positioned to mail the H-1B cap-subject petition on March 29, 2019, for delivery to USCIS on April 1, 2019.”
Next, gather evidence. When applying for H-1B Specialty Occupation Worker visa, the USCIS states that you must provide the following with your petition:
• Evidence that the beneficiary maintained status if seeking a change of status or extension of stay;
• Evidence showing the proposed employment qualifies as a specialty occupation;
• Evidence showing the beneficiary is qualified to perform the specialty occupation;
• A copy of any required license or other official permission for the beneficiary to perform the specialty occupation in the state of intended employment (if applicable);
• A copy of any written contract between the employer and the beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed; and
• An itinerary showing the date and places of assignment if the petition indicates that the beneficiary will be providing services at more than one location.
You also must provide the corresponding LCA that’s been certified by the Department of Labor and signed by the petitioner and, if applicable, the attorney/representative.
H-1B Petition Details
Once your LCA is certified and signed, and you’ve gathered all the required evidence, the USCIS requires that you follow these steps:
• Complete all sections of Form I-129, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement.
• Make sure each form has an original signature, preferably in black ink, which complies with Policy Memorandum PM-602-0134.1.
• Include signed checks or money orders with the correct fee amount (see sidebar).
• Submit all required documentation and evidence with your petition to ensure timely processing.
• Ensure the LCA properly corresponds to the position in your petition.
• File the petition with the correct USCIS service center.
After the lottery process is complete, USCIS will return all unselected petitions with their filing fees (unless the petition is a prohibited multiple filing) and notify those whose petitions were selected by sending a Form I-797 approval notice.
H-1B Filing Fees
All petitioners must pay a $460 base filing fee, but some of the following fees also may apply depending on the type of H-1B petition you’re submitting.
Unless you are exempt, which you can determine on pages 19-21 of Form I-129, the American Competitiveness and Workforce Improvement Act of 1998 fee is $750 for employers with 1 to 25 full-time equivalent employees and $1,500 for employers with 26 or more full-time equivalent employees.
The Fraud Prevention and Detection fee of $500 is submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers. It doesn’t apply to Chile or Singapore petitions.
And if your company has 50 or more employees in the United States and more than 50 percent are in H-1B or L-1 nonimmigrant status, you must pay a $4,000 Public Law 114-113 fee.
Category: Advocacy, Business News