H1B visas are highly sought after by foreign professionals and U.S. employers for their multitude of benefits. These non-immigrant visas are intended for workers who possess specialty skills, often requiring an advanced degree. Because this visa is so competitive, it requires that all applicants follow a very specific H1B visa process to apply.
With the 2017-2018 H1B season quickly approaching, individuals are gathering the necessary documents in preparation for the April 1st filing date. Due to the annual quota/cap imposed on H1B visas and the increasing competition, it’s best to get started right away in order to identify your H1B needs and develop a filing strategy.
There are two main components involved in the H1B visa process, as we’ll soon see. The first is getting sponsored by a U.S. employer. Without a petitioning employer, you cannot follow through with the remaining steps. After securing an employer who fits the eligibility requirements, the second major part is for the employer to receive an approved Labor Condition Application. In this step-by-step guide, we’ll highlight the top ten H1B filing tips for the 2017-2018 season and an overview of the H1B visa process.
Specifically, we’ll discuss the different quota categories and their eligibility requirements as well as questions our firm frequently receives from H1B applicants. If at any point you have questions regarding the H1B visa process or want to explore your options in more detail, you can schedule a consultation with one of our H1B immigration attorney.
[The information contained on this page is not intended to serve as legal advice nor the formation of a lawyer/client relationship. Consult an immigration attorney before taking any action.]
H1B Visa Process Basics
Why should you start planning to get H1B Visa this season?
H1B visas are granted to foreign professionals in specialty occupations which typically require a bachelor’s degree or higher. Qualified positions include architectural occupations, positions in chemistry, physics, accounting, data communications, and more. The list of qualified positions is so vast, we can’t name them all so it’s best to consult the USCIS for a comprehensive list.
In past years, the H1B quota was quickly reached. In fact, last year the window was open for only five days and within that time period, the USCIS received approximately 236,000 petitions! After that remarkable season, many petitioners wondered if petitions submitted on the first day had an equal or greater likelihood of being selected as those on the third, fourth, or fifth.
As it turns out, all petitions submitted while the window is open have the same chance. However, it’s important to remember that once the quota is reached, the window closes so if you happen to be delayed in submission you will lose your opportunity.
(Here’s a sneak peak of the first filing tip in the H1B visa process)
Tip #1: Get your petition in as soon as the window opens!
As many individuals learned from last year that it’s crucial to submit your petition as soon as the window opens. Check out the H1B Visa 2018 News, Quota, Lottery Predictions Complete Guide. Here you’ll find more details related to the lottery process.
H1B Visa Process Quota/Cap Count
Do you know which category you fit in?
The 2017-2018 H1B cap is 85,000 petitions. The regular quota (first category) allows for 65,000 petitions. The second category is reserved for the Masters’ quota and sets aside an additional 20,000. In conjunction with the Free Trade Agreement, 6,800 spots are reserved for citizens of Singapore and Chile as part of the 65,000 spots in the regular quota.
Can I Qualify for an Exemption?
You may qualify for the master’s cap if you received your degree from a U.S. based institution that is public or non-profit in nature and has been recognized by a national accrediting agency as being accredited. It’s best not to assume that your particular institution is accredited.
There have even been cases in the past where accreditation was revoked due to violations or even a school shut down altogether. The University of Northern Virginia, for example, made headlines in 2013 and was closed by the government due to its operations. The H1B visa process involves many steps, including confirming your eligibility.
There are other ways to circumvent the annual cap. If you have been counted against the cap in prior years and haven’t reached the maximum 6-year limit then you may qualify for an exemption.
Another exemption is if the petition is filed by a nonprofit organization or institute of higher learning. In that case, you may not be subject to the cap. For more H1B filing tips in regards to exemptions its best to explain your situation to a qualified immigration attorney.
Challenges Faced to Get H1B Visa
In this section, we feel it’s necessary to address some challenges faced exclusively to startups and small businesses. USCIS makes it a point to determine whether the petitioning employer has the cash flow necessary and policies set up to pay their H1B employer the wages quoted in the LCA. Unlike large companies, small companies may face difficulties demonstrating these qualifications at the onset of operations.
Another issue often confronted by petitioners who are also the founders or co-founders of the business is distinguishing a clear employer/employee relationship. Since the petitioner (in this scenario) is one and the same, USCIS may require additional documentation supporting a separate Board of Directors with the ability to supervise and issue compensation.
Get the inside scoop on how to increase your odds of selection with these 10 tips on how to get an H1B visa!
Here are the top 10 H1B filing tips for getting an approval for the 2017-2018 H1B visa process:
Tip #1: Get your petition in as soon as the window opens!
In past years, the H1B season has been open for only a short period of time. In fact, due to the staggering numbers of petitions filed each year, the lottery window is typically only open for the first 5 business days after the USCIS begins filing petitions. For that reason, it’s ideal to submit as soon as the first business day in April 2017 rolls around. Procrastinating is not at all recommended.
Tip #2: Filing petitions with multiple employers may be an effective strategy.
It’s commonly known that USCIS will revoke or deny any duplicated petitions they receive that are filed by an employer for one individual. However, you are allowed to submit petitions for multiple employers and even work part-time. This can dramatically increase your chances of being selected. Additionally, you can transfer your employment once your petition has been improved.
Tip #3: Employers–Check if the foreign worker has been previously counted against the cap.
One way to circumvent the annual quota, as we previously mentioned, is to qualify for a cap exemption. If the foreign worker has not yet reached the 6-year limit or if they are working for a non-profit organization or higher learning institution, chances are they could be exempt.
Tip #4: Provide adequate evidence showing the employer can pay the prevailing wage.
On the petition, it’s important to include all the information that’s requested including evidence that the employer has the ability to pay the prevailing wage.
Tip #5: Double check all mailing addresses and sections that require a signature.
It’s easy to overlook a section or neglect to sign an important section. Be sure to double check all relevant fields for the proper information, including addresses and signatures.
Tip #6: Part-time workers can also file an H-1B petition.
Many are surprised to learn that H1Bs are not limited to only full-time specialty workers. When it comes to the number of hours your can work on the visa, it’s pretty flexible so if you are a part-time worker apply!
Tip #7: Don’t be misled into thinking that premium processing will increase your chances.
Just because you pay the premium processing fee does not mean your petition will automatically be selected. This feature only speeds up the decision regarding your I-129 petition. The USCIS announces the date that they will begin deciding petitions filed with premium processing each year.
It is important to note that using this feature will also not allow you to start any earlier than October 1st. Speak with your attorney to learn if premium processing is appropriate for your situation.
Tip #8: Your specialty occupation must be related to your degree.
The position on your H1B petition must correspond to your degree. Even though it is occasionally possible to get an H1B visa when you have a degree in a different field, it is almost always advisable to seek a position that correlates to your educational background. So if you are applying to be an engineer, your degree should not be in accounting. Make sense?
This is especially important, considering the fact that many of the H1B Requests for Evidence (RFE) that we get involve a situation in which the beneficiary did not have a degree that was related to the specialty position. While this is not the end of the road, it does create an unnecessary obstacle in the H1B visa process that could cost you your position in the lottery.
Tip #9: Processing costs must be paid to the USCIS by the employer.
It is very important that the H1B filing fees are not paid by the beneficiary. If the USCIS finds out the employer did not pay their responsible fees there are serious consequences including potentially revoking the worker’s visa. However, there are some fees, such as the premium processing fee, that can be paid by either the employer or the beneficiary. For the premium processing fee to be paid by the beneficiary, the employer must prove that this was done for the beneficiary’s sake, not the employer’s.
Tip #10: Have a qualified immigration attorney review all the paperwork.
One of the main mistakes that people make when they try to navigate the treacherous waters of immigration law is going it alone. Just like any big projects, you always want to have an expert by your side making sure that everything is going as planned and fighting for you should the need arise.
Retaining an immigration attorney during the H1B visa process can significantly increase your chances of being approved by making sure that the fees and documents are filed correctly as well as making sure that the applicant’s position and qualifications have been thoroughly covered to avoid a Request for Evidence (RFE).
The Planning Checklist
Learn which documents in the process are required to get H1B Visa
- To begin the 2017-2018 H1B visa process and get H1B Visa, you should have an employer willing to sponsor you. The employer should then receive a Labor Condition Application (ETA-9035) & submit the petition to USCIS.
- G-28 Form with all sections filled out (if obtaining legal representation).
- Approval of LCA prior to filing I-129 Form (Petition for Nonimmigrant Worker).
- Completion of the Filing Fee Supplement and Data collection sections on the I-129.
- In the event that premium processing is selected, the filing fee should be submitted with a separate check or money order plus the I-129 receipt and I-907.
- The start date on your petition must be October 1, 2017. According to regulations, the petition cannot be filed/approved more than 6 months prior to the beginning date of employment. The end date on the petition should also be the same as the LCA expiration.
- Double check the details of the LCA to make sure the salary, title, and location all match those noted on the I-129.
Take a look at our complete list of documents related to the 2017-2018 H1B visa process and more H1B filing tips.
Changes from the Previous Season
Because getting an H1B visa is such a sought after goal, the regulations surrounding it are constantly being altered to better suit both the petitioners and the USCIS. Since the 2016-2017 season, several changes have been put into place that affect H1B petitioners and current visa holders alike.
The Federal Register has recently implemented a new rule that alters several aspects of the regulations involved with getting an H1B as well as some aspects that impact those who already have a visa.
The first and most notable is the institution of a 60-day grace period that extends to current H1B visa holders whose employment is terminated. Whether you have been laid off or your employer is no longer able to continue doing business, you will now have two months to either find a new employer, change your visa status, seek permanent legal residency, or leave the country while still “in status”.
The new rule also amends the language that the regulations use to describe how you may spend the 10-day grace periods that extend before and after your visa validation period. This change has made the language less limiting and allows visa holders to use the time as they see fit.
For those who are petitioning, the new rule expands the definition of a cap-exempt employer by amending how the USCIS defines certain institutions.
- A non-profit institution will now be considered an organization whose fundamental activity is “to directly contribute to the research or education mission of the institution of higher education”. Previously, the organization needed to have that as its “primary purpose”, which was a more limiting phrase.
- A governmental research center is now no longer limited to federal institutions. Both state and local research centers have been included in the definition.
Your sponsoring employer should be aware of the recent changes made to the H1B visa filing fees.
- As of December 23, 2016, the petition filing fee for the I-129 form has gone up from $325 to $460.
- As of December 18, 2015, according to the Consolidated Appropriations Act, the additional Public Law fee has increased from $2,000 to $4,000. This is only applicable to employers that have 50 or more workers with half of them being under H1B status.
As with all major changes, it is always best to work with your immigration attorney in order to assess how these alterations affect your petition or status.
Getting an H1B Visa FAQs
The most frequently asked questions about the 2017-2018 H1B Visa process answered!
Can a foreign national file more than one petition to get H1B Visa this year?
If you have more than one H1B sponsor or intend to perform work for multiple employers, they each need to file a petition. Conversely, USCIS will deny or revoke multiple petitions filed on behalf a foreign worker by the same employer and is not responsible for refunding those duplicate filing fees.
Can I work anywhere in the country with an approved H1B Visa?
Yes, though there are some stipulations. The USCIS takes into consideration a number of factors including your geographic location when issuing an H1B approval. They’ll check that your employer complies with the prevailing wage in the location noted on the petition so technically the approval is specific to that location (not the entire country). Throughout the course of your work, if the location changes, you’ll need to submit an amendment with the new location indicated.
How do I locate a sponsor to get H1B Visa the coming fiscal year?
There are a number of ways to get sponsored by a company for an H1B visa. Some of these options include searching through sponsoring company databases, starting with an internship and progressing to visa sponsorship and channels through American-based universities. Here’s an extra H1B filing tip: A list of H1B sponsors is published quarterly on behalf of the Labor Department.
Another option at your disposal is to search through employment sites. There, you can conduct a more specific search with your personal information. An unofficial list of H1B sponsors from recent years can be found here. [Disclaimer: We take no responsibility for inaccuracies of unofficial data sources.]
How many filing checks do I need to submit to get an H1B Visa this season?
According to the I-129, checks should be made out to the “Department of Homeland Security” for each filing fee (fraud fee, premium processing, I-129, ACWIA training fee). Employers may submit one check or money order to cover both the base filing fee and ACWIA training fee. However, the fraud and premium processing fees should be separate. As mentioned in the top ten H1B filing tips, double check the address before mailing.
If your employer qualifies for the Public Law 114-113 fee, then that check must be made out separately to the Department of Homeland Security.
What fees are my employer specifically responsible for in the H1B Visa process?
By law, the employer is supposed to pay the training fee (if applicable) and the fraud fee. If the employer tells you that you are responsible for all USCIS fees, be aware that this is prohibited and you should not enter into a reimbursement agreement with them.
In what way would a maternity leave or sick leave impact my status?
Sick leave, vacation time, or maternity leave do not typically impact your H1B status.
Am I able to get six additional years on H1B status if I was previously on H1B then switched to F-1?
You do not get an additional six-year “reset” unless you first leave the country for a minimum of a year. Otherwise, the time that you were previously accruing on H1B will be applied to your current six-year limit.
Why do some H1B petitions take longer than others?
If two H1B petitions are filed at the same time during the H1B visa process, there’s no guarantee that they will be approved within the same time frame. This is because each USCIS service center has a different workload so it’s hard to predict when the paperwork will be addressed.
Can I change my status to H4 if my spouse and I are both H1B visa holders?
You are permitted to do this and the process begins by filing a change of status application with USCIS to H4. You need to demonstrate that both you and your spouse are keeping current legal status in the country. Until the application gets approved, it’s usually best for the spouse seeking H4 to continue working (until an approval is solidified). There are other options to conduct a change of status but it’s best to discuss these with an immigration attorney.
Where should the petition be filed?
Consult the direct filing addresses located on the I-129 Form.
ABOUT SGM LAW GROUP
Shilpa Malik, the Lead Attorney of SGM Law Group, has extensive experience and a great reputation for offering top-notch representation in H1B Visa, L-1 Visa, and Employment Green Card cases. We offer a competitive flat fee for H1B filings and you may qualify for a free initial consultation to review your case. If you have any additional questions regarding the H1B visa process or need more H1B filing tips please don’t hesitate to contact us.
SGM Law Group also offers services in the following areas:
- H1B, E, L, O, P, H-3, J, K and U Visas, as well as I-130 and I-140 Immigrant Petitions with Accompanying Adjustment of Status (I-485)
- EB-1 Extraordinary Ability Petition
- PERM Labor Certification with the Department of Labor
- EB-2 and EB-3 Employment-based Green Cards
- Investment Based and Treaty Trader Visas and EB-5 Green Card