The H1-B visa is one of the most popular non-immigrant, work-based United States visa programs. For good reason, too: for those who have demonstrated the ambition to get an education and experience in a highly specialized field, the H1-B, at a minimum, opens the door for them to further their ambitions (and pad their resume) through temporary employment in the U.S. The parameters of the visa – three-year validity renewable once for another three years – also put these individuals in a position to later obtain legal permanent residence (a green card) and eventual citizenship if they so desire.
It is no wonder, then, that hundreds of thousands of people apply for an H1-B visa every year.
In our last blog, we provided details about what the H1-B visa is and how to qualify for it. In summary: The H1-B is designed for those who have achieved a minimum of a bachelor’s degree in a so-called “specialty occupation,” defined as one that requires “the theoretical and practical application of a body of highly specialized knowledge,” and who have an employment opportunity in that field. The H1-B is not a generic work visa. It is more prestigious. It is also more competitive.
In this blog, we will focus on what it takes to obtain an H1-B visa; what are the steps, and how can you boost your chances of success.
Step one: Do I qualify?
Before going too far down the road of pursuing an H1-B visa, you need to assess whether you meet the basic qualifications for it. We mentioned above that, at a minimum, you must have a bachelor’s degree (or its equivalent) in a specialized field. While there is theoretically no limitation on the types of fields that could be called “specialized,” in reality, according to the Brookings Institute, about 90% of H1-B applications are for STEM jobs (Science, Technology, Engineering, Mathematics). But whatever type of job you are applying for, the key is that it must be in a field where higher education and experience are necessary for proficiency.
The second qualification is that you must have a legitimate job offer from a U.S.-based company, government agency, or educational institution. As we will explain below in more detail, the initiation for an H1-B visa is the responsibility of the potential employer, not of you, the potential employee. So that relationship must already be established.
The third qualification, unfortunately, is one that you have no control over: your potential employer must give preference to U.S. citizens, and must therefore demonstrate that they cannot find an adequate employee from the U.S. citizen workforce.
Once you determine that you meet those three basic qualifications, you can proceed to the next step.
Step two: Lottery Registration
In order to ensure that U.S. citizens are truly given the employment preference we mentioned above, the U.S. Congress has established a limit on the number of H1-B visas it will permit to be awarded each fiscal year (October 1 – September 30). Currently, that limit is set at 65,000, plus an additional 20,000 for individuals who have obtained a master’s or doctorate degree in their field from a school in the U.S. There are some exceptions to this cap, for instance if the potential employer is the government itself. However, under normal circumstances only 85,000 people per year are granted an H1-B visa.
So, compare that number of granted visas to the number of applicants each year. In fy2023 (October 1, 2022 – September 30, 2023) a record 483,927 people sought an H1-B visa. That is a ratio of almost five applications for one visa.
To accommodate this disparity, the U.S. Citizenship and Immigration Service (USCIS) has established a random lottery system to cull out the cap limit of visas. This lottery used to be at the end of the process, which meant that considerable time and energy (and money) was spent on applications that eventually ended up nowhere simply because no more visas were available that year. In 2019, that changed. Now, applications begin with a bare-bones preliminary registration, filed electronically, from which the lottery is drawn. If a particular registration is selected, then the remainder of the application process can proceed with reasonable assurance that it will be granted, provided that all documentation is in order and there are no significant reasons to deny the application.
The potential employer, called “the petitioner,” is the one that is responsible to file this registration. It only requests basic information: the petitioner’s name, address and tax identification number (Federal Employer Identification Number); and the potential employee’s (“the beneficiary’s”) name, date of birth, gender, country of birth, country of citizenship and passport number. The registration form should only take a few minutes to complete, and costs $10 to submit.
There are two things that the petitioner must remember. First, there is a limited window of opportunity in which these registrations will be received. For the upcoming fiscal year, that window opens on Wednesday, March 1, and will close on Friday, March 17, 2023. Second, the lottery occurs after the registration period is over, and it does not give preference to registrations received earlier rather than later. Therefore, while it is imperative the registration be submitted within the window, it is not necessary to rush it at the expense of possibly filing it incorrectly and having it rejected.
Step Three: The Petition
Surviving the lottery is not a guarantee that a visa will ultimately be granted. All the lottery does is make available a visa number should the rest of the application process (the truly time- and energy-consuming – and expensive – part of the process) also be successful. What determines this success is whether the petitioner can demonstrate (a) their own legitimacy and the validity of their employment offer, and (b) that the beneficiary is professionally qualified for the position and legally qualified to enter the United States.
To establish their own legitimacy and the validity of their employment offer, the petitioner must do two things. First, they must sign, under penalty of perjury, that they have made a “good faith effort” to hire a U.S. citizen of equal or greater qualification for their open position, but without success. Second, they must demonstrate that the conditions of the job will not be exploitative for the foreign employee. There are many people, both in the government and in the private sector, who are concerned that some companies try to hire foreign workers just to get cheap labor. The petitioner must therefore show that they will pay the foreigner the greater of either the same wage they would pay a U.S. citizen who was equally qualified, or the “prevailing wage” for that type of job being offered.
This part of the process uses the “Labor Condition Application” (LCA), which is submitted to the U.S. Department of Labor (DOL). There are no fees to submit this application.
Once the DOL approves the LCA, the petitioner then submits it along with Form I-129, “Petition for a Nonimmigrant Worker,” with USCIS. This is when the determination is made whether the beneficiary is professionally qualified to receive the visa. Therefore, along with the I-129, the petitioner should also submit any other paperwork to help establish that qualification: diplomas, training certificates, letters of recommendation and support, etc.
There is a $460 fee for filing the I-129. This fee can be paid either by check, money order, or credit card (no additional fees are attached to a credit card payment).
Up to this point, the responsibility was on the petitioner to make each step happen. But once the USCIS approves the I-129, the final step must be taken by the beneficiary.
Step four: The Visa
By approving the I-129, the only thing USCIS is doing is agreeing that the petitioner and beneficiary have successfully demonstrated their personal legitimacy and the validity of the employment opportunity. What they are NOT doing at that point is giving permission to the beneficiary to enter the United States. That requires one more step: the beneficiary needs to prove that they pose no security risk and can legally enter the U.S.
Of course, if the beneficiary is already in the United States, then they have already been vetted this way. They must simply wait for the formality of receiving the H1-B stamp in their passport, and then they can go to work.
For beneficiaries who are still in their home countries, they will need to file a Form DS-160, “Non-immigrant Visa Application,” and any supporting documents (passport, travel itineraries, residential and employment histories, etc.), with their local embassy or consulate. Once the paperwork is approved, the beneficiary will be summoned for an interview. If the consular officer is satisfied with the results of that interview, the visa will be granted.
Time is of the essence
The window of opportunity to register for the next H1-B lottery is fast approaching. If you are a potential employer or employee who thinks that an H1-B visa is the best way to go in your situation, we encourage you to reach out to us at the Levin and Pangilinan PC immigration law firm. We cannot guarantee a particular outcome, especially of a randomized lottery system. But we can ensure that your registration for that lottery, and any further documentation you will need if selected, can be done correctly and in a timely manner. Fill out our contact form today, and one of our staff will connect with you and help get your process moving forward.