H-1B is type of visa issued to non-immigrants which permits temporary employment in the United States.
The annual cap of H-1B visas issued is 85,000: 65,000 regular quota + 20,000 master's exemption.
Exempted from the quota: non-profit organizations and institutes of higher learning.
Who is eligible for an H-1B visa?
An employer can apply (petition) for an H-1B visa on behalf of a student if:
- The student has the minimum of a bachelor’s degree.
- The employer is registered with the E-Verify employment verification system.
- Information can be found at: http://www.uscis.gov/E-Verify
- The student will perform services in a specialty occupation that requires theoretical and practical application of a body of highly specialized knowledge.
- The employer can provide evidence of their ability to pay the prevailing wage.
- The student's position of employment must be related to their degree.
Who is NOT eligible for an H-1B visa?
An employer CANNOT apply (petition) for an H-1B visa on behalf of a student if:
- The yearly cap on H-1B visas has been met.
- Information can be found at: http://www.uscis.gov/h-1b_count
- The student is subject to 212(e) 2-year home residence requirement (J-1 visa holders).
- Information can be found at: http://travel.state.gov/visa/temp/info/info_1296.html
Application (Petition) Procedures
To apply for an H-1B visa, the student‘s employer must complete the following procedures:
- Complete and submit Form ETA 9035 Labor Condition Application with the Department of Labor
- Information can be found at: http://www.foreignlaborcert.doleta.gov/h-1b.cfm
- Submit evidence of the student's educational background
- Complete and submit Form G-28 (if obtaining legal representation)
- Information can be found at: http://www.uscis.gov/g-28
- Complete and submit Form I-129
- Information can be found at: www.uscis.gov/I-129
- Filing fee = $325 to "Department of Homeland Security"
- American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)
- Filing fee = $750 for employers with 1 to 25 full-time equivalent employees, unless exempt to "Department of Homeland Security"
- Filing fee = $1,500 for employers with 26 or more full-time equivalent employees, unless exempt to "Department of Homeland Security"
- Fraud Prevention and Detection Fee
- Filing fee = $500 to "Department of Homeland Security"
- Public Law 111-230
- To be submitted by a petitioner that employs 50 or more employees in the U.S., if more than half of those employees are in H-1B or L-1 status
- Filing fee = $2,000 to "Department of Homeland Security"
- Request for Premium Processing Service: Form I-907
- To have a petition processed within 15 calendar days
- Information can be found at: http://www.uscis.gov/i-907
- Submit supporting documentation
- Form I-20 or Form DS-2019
- Form I-94
- Employer/attorney/representative letter
- For more information on application procedures: http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2015-cap-season
Important Points to Remember
- Employment is limited to the specific employer that petitioned for the student’s H-1B visa, but it is possible to have multiple concurrent H-1B petitioners.
- An employer can file an H-1B petition 6 months before the requested employment start date.
- The earliest an employer may file the petition is on/after the new fiscal year (April 1).
- The earliest an employer may request a start date is on/after October 1.
- The initial period of employment authorization is for up to 3 years with extensions in up to 3 year increments thereafter with a 6 year maximum.
- H-1B visa holders may take classes as long as they are incidental (non-degree seeking) to their employment.
- Both part-time and full-time employees are eligible to file a petition.
- Paying for the premium processing fee to file a petition does not guarantee your petition will be approved.
- The employer, not the employee, is responsible for paying for the fees associated with an H-1B petition.