Foreign Workers’ H-1B Visa Summarized
- The employer files ; the applicant files .
- A basic processing fee of $325 must be paid—processing can take from three to six months.
- An optional premium processing fee of $1,225 may be paid—processing takes only two weeks.
- Employers with 25 workers or fewer pay a $750 fee; employers with more than 25 workers must pay an ACWIA fee of $1,500; all employers must pay a $500 fraud fee.
H-1B Work Visa Basics
U.S. businesses may sponsor foreign workers in specialty jobs through H-1B Visas. Specialized jobs may include positions in the engineering, science, computer programming, and law fields. The H-1B Visa allows foreign nationals to work in the U.S. for a predetermined period—a maximum of six years in three-year increments. These non-immigrants may be allowed time extensions in certain situations.
Unlike EB-5 Visas, H-1B Visas do not lead directly to permanent U.S. residency. However, foreign workers may enter the U.S. on an H-1B Visa while applying through another visa category for permanent residency. For example, applicants sometimes first obtain temporary U.S. residency through an H-1B Visa before applying for permanent residency through an EB-5 Visa.
Currently, the United States government allows only 65,000 H-1B Visas yearly. This visa category also allows 20,000 visas for applicants who have a U.S. master’s degree or higher. Due to free trade agreements with Singapore and Chile, about 6,800 visas are reserved for workers from those countries.
Applications must be submitted to United States Citizenship and Immigration Services (USCIS) prior to the fulfillment of the yearly quota of H-1B Visas. Applications will not be considered after the quota has been met, and all remaining applicants must wait until the next year to apply for an H-1B Visa—or they can apply for entrance into the U.S. through another visa type.
Historical H-1B Quota Data
For fiscal year 2012, the visa limit of 65,000 was reached on November 22, 2011. That year’s cap of 20,000 visas for applicants with U.S. master’s degrees or higher was met on October 19, 2011.
For fiscal year 2013, the quota of 65,000 was reached on June 11, 2012. The quota of 20,000 for those applicants with U.S. master’s degrees or higher was reached on June 7, 2012.
For fiscal year 2014, the cap of 65,000 was met on April 5, 2013. For those applicants with a U.S. master’s degree or higher, the visa limit of 20,000 was reached on April 5, 2013.
H-1B Work Visa Requirements
Eligible applicants must have at least a bachelor’s degree and show proof of qualifications for the jobs at which they will work in the U.S. They must also have any license required in their fields of work. An applicant’s spouse and unmarried children under 21 may be eligible as H-4 dependents. These dependents may attend school but cannot work in the U.S.
U.S.-based employers sponsor H-1B Visas. They must ensure that all requirements are met by the applicant. They must not displace U.S. workers, and U.S. workers must be sought before recruiting H-1B Visa holders.
Further, H-1B Visa holders cannot be placed with another company. In order for a foreign worker to transfer to a new U.S. company, a new H-1B Visa must be applied for by the other company. H-1B workers may begin working at the new job when the H-1B application is filed and don’t need to wait for full approval from USCIS.
H-1B Work Visa Application Process
First, the employer must file a Labor Condition Application (LCA), Form ETA-9035, with the Department of Labor. In this LCA, the employer must certify that the employee will receive a wage comparable to wages paid a U.S. worker in that position. Completing this form may require the assistance of an immigration lawyer.
After LCA certification, employers must file Form I-129, Petition for a Nonimmigrant Worker. This form is submitted to the USCIS Service Center in the jurisdiction of the state in which the applicant will be working. Upon approval, Form I-797 is sent to the employer, and the American consulate where the applicant will be processed is notified. If the applicant is in the U.S. and has filed a change of status, he or she may remain in the U.S. as a non-immigrant. The applicant may begin working on October 1 or on the date they requested in the application.
If not already in the U.S., the H-1B applicant may be processed at the consulate in his or her home country. In such cases, the DS-160 electronic form must be filed through the Department of State’s website.
Processing the H-1B Visa can take from three to six months at a fee of $325. Premium processing takes place within two weeks, but the fee is $1,225. Employers must pay a fraud fee of $500 and an American Competitiveness and Workforce Improvement Act (ACWIA) fee of $750 (25 or fewer workers) or $1,500 (more than 25 workers).