Each year, more and more people are vying to obtain the most popular U.S. work visa, the H-1B. Needless to say, most people who are interested in this visa want to know everything that is involved with the process, including the H-1B processing time for the 2019 Fiscal Year. Read on to find out how long you have to wait from the moment your petition is filed to the day you can start working in the U.S.
H-1B Process Background
As the most popular nonimmigrant visa available, the H-1B is highly sought-after due to its relatively simple eligibility requirements. First, let’s talk about what goes into the process so that we can get a better understanding of how long the H-1B processing time is for each step:
- The first thing you will need to do is find an employer in the U.S. who is willing to sponsor you throughout the H-1B process. This employer will be responsible for giving you a specialty position that requires at least a bachelor’s degree. They will also be responsible for paying all of the mandatory fees associated with petitioning for the visa.
- Now that you have found a sponsor, that employer must obtain a Labor Condition Application on your behalf from the Department of Labor. Filling out an LCA involves four attestations made by your employer. They must attest that:
- You, the beneficiary, are going to be given a compensation that matches or exceeds the prevailing wage and the actual wage (wages of other employees in the company that perform similar tasks)
- Hiring you will not be detrimental to the current working conditions and that you will be treated the same as U.S. workers in the company.
- No strike or lockout is currently in place.
- The current workers in the company have been or will be given notice of the LCA.
- After that, your sponsor then needs to submit an I-129 Petition for Nonimmigrant Worker for you. This is the part that will require your employer to pay some fees attached to the petition filing process. Your petition needs to be filed after April 1st, 2017 and before the end date, which is usually five business days after the window opens.
- Because the annual limit for H-1B visas is 85,000 and the USCIS received 236,000 petitions last year, your petition will be entered into a random lottery. Unfortunately, there is nothing that can be done to increase your chances in the lottery and thus decrease your H-1B processing time.
- First, 20,000 petitions are selected for the master’s degree exemption. If you hold an advanced degree from an accredited university, you could be eligible for this exemption.
- Then, 65,000 petitions are selected for the regular lottery. If you filed under the master’s exemption and were not selected in the first lottery, then your petition will be re-entered into the regular lottery, essentially giving you two opportunities for selection.
- If your petition is not selected in the lottery, then your petition and all fees will be returned to your employer and you can petition again next year.
- If and when your petition is chosen, the USCIS will begin processing each selected petition. If you select premium processing, this step can be shortened drastically.
- If you are not in the U.S., then you will need to travel to a U.S. consulate or embassy to apply for the visa. If you are in the U.S., then your status will change when you begin working for your new employer on October 1st, 2017 at the earliest. That will be the day that you gain H-1B status provided that no RFEs or other delays have taken place to slow your H-1B processing time.
What Goes Into the H-1B Processing Time?
Each step has its own processing time, which often varies depending on several outside factors.
The LCA form ETA 9035 usually takes about one week to process. However, if the Department of Labor finds any problems with your application, it may be rejected. Your employer will then be provided with a list of the issues that arose concerning your application. If your employer addresses these issues, the application can be resubmitted to the DOL.
Completing your LCA is generally best done before the H-1B season. This is because there is a very small window of opportunity to file the I-129 petition. It cannot be filed before April 1st, and the window closes after five business days if the cap is reached within that time.
Your employer can choose to file through premium processing, which will expedite the processing time for your petition. If not, then expect the H-1B processing time for the I-129 to be several months. This is dependent on several things such as how complete the petition is, how busy the USCIS service center is that received your petition, and the qualifications surrounding your qualifications and the qualifications of the position.
So, overall, the H-1B processing time is usually about six months, which is how long you will have to wait between filing and your work start date unless you are not being counted against the cap. Speak with your immigration attorney about cap-exempt petitions and how these cases differ from the usual processes.
Cap-Exempt to Cap-Subject
If you initially petitioned under a cap-exempt position (meaning that you were not counted against the cap), then you can transfer to another cap-exempt position normally. However, if you would like to transfer to a cap-subject position, your petition will need to be entered into the cap. This means that the transfer petition will need to be filed on April 1st and you will not be able to work for the new cap-subject employer until October 1st, which would add a significant amount of time to your H-1B processing time.
Can Premium Processing Help?
The USCIS extends a special feature called premium processing to all visa applicants who use either the I-129 or I-140 petition forms. For $1,225, you can shorten your petition’s H-1B processing time from several months to just 15 calendar days. However, this period only begins when the USCIS announces that it is starting to processes petitions with premium processing. Be sure to check the USCIS website to learn when that begins.
For many work visas that require an I-129, premium processing is a welcome advantage. However, the H-1B process has very specific and immutable dates that cannot be altered by this feature. Whether you use premium processing or not, your employer will still only be able to file your petition on April 1, 2017 and you will only be able to start working on or after October 1, 2017. So you will have to wait at least six months from filing to your employment start date, making premium processing significantly less effective.
However, if you are filing a petition to transfer your status to a new employer, filing for an H-1B extension, or responding to an RFE, you are not bound by these dates and can file whenever you need to, which may be the perfect situation for premium processing.
While premium processing might seem like a good idea to shorten the H-1B processing time, it is always a good idea to discuss decisions like this with your immigration attorney to see if your case can benefit from this feature.
USCIS Requests for Evidence
Sometimes, the USCIS encounters a problem with petitions during the H-1B processing time. Rather than deny your petition outright, you may instead receive a Request for Evidence (RFE). As soon as your employer receives an RFE, there will be a time window in which a response must be given to avoid having your petition denied.
There are a variety of things that can trigger an RFE such as:
- An insufficient job description that does not portray the job as a specialty position requiring a bachelor’s degree or higher.
- A lack of evidence that you, the applicant, are qualified for the job either through a lack of experience or by having a degree that is not related to the position.
- A lack of proof that your sponsoring employer has complete control over your daily tasks, employment status, and wages.
Getting an RFE can cause a potentially harmful delay in your H-1B processing time. If you receive one, you may want to consider speaking to your immigration attorney about premium processing. It is important to note that premium processing does not prevent the USCIS from issuing an RFE.
Note that the above list is not comprehensive. The USCIS can issue an RFE for a large variety of reasons. See how the experienced attorneys at SGM Law Group tackled a difficult H-1B Request for Evidence.
How Our Immigration Attorneys Can Help
As with all immigration-related situations, it helps to have an expert by your side. Retaining an immigration lawyer can help tighten your petition so that you are more likely to avoid delays such as rejections and RFEs.
Here at SGM Law Group we have helped thousands of people obtain their H-1B visas and deal with any obstacles that may come up. To optimize your H-1B processing time, our dedicated team of attorneys can help you along each step of the way. If you would like to speak with one of our expert attorneys about your H-1B processing time, then you can complete this contact form to see if you qualify for a free consultation.
Other Topics Related to H-1B Processing Time
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- H-1B Processing Fees 2018
- H-1B Transfer Denied
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- H-1B to Green Card
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- H-1B Cap-Exempt
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