H-1B Visa Filing Season Is Upon Us!
Every April 1, United States Citizenship and Immigration Services (USCIS) begins accepting petitions filed by employers on behalf of highly-skilled foreign workers who are seeking to come to the United States on H-1B visas to work in “specialty occupations.” With that date rapidly approaching, employers who are interested in bringing on foreign talent should begin assessing their workforce needs now and start making preparations to have everything ready when that time comes. But what exactly does the employer need to know about the H-1B visa to begin these preparations, and what is the process for obtaining one?
The H-1B visa is a nonimmigrant (temporary) visa that permits foreign workers to be employed in the United States in specialty occupations, which generally means that a bachelor’s or higher degree is normally the minimum entry requirement for that particular position (although other specific circumstances may also support a position being considered a “specialty occupation”). An employer should begin by evaluating its labor needs and identifying those candidates who will require sponsorship.
On the employee side, the worker must usually possess a U.S. bachelor’s degree or a foreign equivalent related to the specialty occupation. This may require obtaining academic evaluations of foreign degrees to support the petition. The employee should also begin updating their resume to list all relevant experience related to the proposed employment and obtain translations of any required documentation.
Before filing an H-1B visa petition with USCIS, the employer must develop a job description for the specialty occupation and file a Labor Conditions Application (LCA) with the Department of Labor. With the LCA, the employer is attesting that it will pay the employee the prevailing wage for the job in the location in which the employee will be working. Because the LCA can take up to 10 days to be certified, employers are encouraged to begin this process early to avoid the backlogs that inevitably occur as April 1 approaches. Once certified, the LCA accompanies the H-1B visa petition along with other supporting documentation supporting eligibility to USCIS for processing.
Because the number of H-1B petitions received by USCIS usually exceeds the numbers of visas available, the agency conducts a random selection process, commonly referred to as the H-1B lottery, to select enough petitions to meet the 65,000 general category cap and the 20,000 cap under the advanced degree exemption (for those possessing advance degrees from U.S. institutions). However, the cap only applies to individuals seeking H-1B status for the first time, and not to those individuals looking to extend their current H-1B status or change employers.
An H-1B nonimmigrant may be admitted into the country for up to three years. This time may be extended but generally cannot exceed 6 years. Spouses and unmarried children under 21 may also accompany the worker.
While our firm cannot increase the odds of being selected by USCIS in the H-1B lottery process, you can’t be selected if you don’t apply, so let MWR Legal’s experienced immigration team assist your company in preparing its H-1B visa petition, or advise you in identifying other potential visa options for highly-skilled foreign talent to help grow your business.
LEGAL DISCLAIMER: This article is not intended to be, nor may it be used as, legal advice. This article shall be used solely for general, non-directed informational purposes. No attorney-client relationship has been formed by virtue of this article and Moster Wynne & Ressler, P.C. has in no way agreed or consented to provide you with legal representation by virtue of this article.