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 2020 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.
- The Department of Homeland Security (DHS) has posted a final rule (on 01/30/2019) amending regulations governing H-1B cap-subject petitions, including those eligible for the master’s degree exemption. It reverses the order by which the USCIS selects H-1B petitions under the H-1B regular cap and the master’s cap (advanced degree exemption).
- The premium processing suspension ended on January 28, 2019. This means that premium processing will only be available to H-1B petitions filed for the FY 2019 cap. There is no announcement regarding premium processing for the 2020 cap so far except that the suspension will continue for all H-1B petitions except those for the 2019 season.
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. Things such as the LCA processing time, the cap window, the business of your USCIS service center, and Requests for Evidence can all contribute to variances in the H-1B processing time. The better you understand your case, the more accurate you will be able to predict your processing time. This is why it is often best to hire an immigration attorney to help you along every step of the way.
Additionally, 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.
LCA Processing Time
The LCA processing time for the 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.
Cap-Exempt Processing Time
There are obviously many benefits to filing a petition that is not subject to the 2020 H-1B cap, but a major advantage is the potential for a much shorter processing time. Not being subject to the cap means that your petition is also not subject to the time constraints placed on the cap. You do not need to wait until April 1st to file your petition and you do not need to wait until the first business day in October to start working. Essentially, a cap-exempt petition works like most other nonimmigrant visas in that your processing time is however long it takes for the petition to be processed. This can either be around six months (depending on the service center and any RFEs) or 15 calendar days with premium processing.
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 $1,410, 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 cap-subject 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, filing for a cap-exempt H-1B, 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.
Also, keep in mind that premium processing does not increase your H-1B petition’s chances of being approved or selected in the lottery, it only speeds up the process and can only be used for the I-129 and I-140 petitions.
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.
H-1B Processing Time Delays: 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 Immi-USA tackled a difficult H-1B Request for Evidence.
H-1B to Green Card Processing Time
Once you have your H-1B, you may want to pursue permanent residence here in the U.S. There are several ways you can do this, with the most common one being through your H-1B employer. Getting an employment-based green card from H-1B status requires several complicated steps and is best done with the help of an attorney. That being said, the path from an H-1B visa to a green card is relatively straightforward and is taken by tens of thousands of nonimmigrants every year. This straightforwardness is due to the fact that the H-1B is both extremely popular and also considered to have dual intent, meaning that applying for a green card will not jeopardize your nonimmigrant H-1B status.
The first step is to find an employer who will sponsor you. This can be your current H-1B employer or a different U.S. employer. The type of green card you pursue should be based on your skills, qualifications, and the position you are being offered. Here are some common choices for H-1B holders:
- EB-1C: This is for multinational executives and managers (though you must have worked for the multinational company’s foreign branch for at least one year in the three years leading up to your green card application)
- EB-2: You can merit this by means of having an advanced degree (and a job that requires that degree)
- EB-3: Because you must have at least a bachelor’s degree to qualify for an H-1B, that will land you in the wheelhouse for this green card.
Although the outcome—legal permanent residence valid for 10 years at a time—is the same, these options differ in two ways: requirements and processing time. We’ve already mentioned the requirements, now let’s talk about how they differ in terms of processing time.
Just like the H-1B application is the I-129 petition, employment-based green cards require the I-140 petition. Once your employer fills this out, sends it, and the USCIS receives it, that date will be your personal priority date. Keep this date handy, since you will need to use it in the coming months.
You will need to check the Department of State’s monthly visa bulletin regularly to check the posted “final action dates”. These are constantly changing and are assigned to you based on your country of origin and the green card you have petitioned for. For example, the final action date for an EB-1 applicant from Australia will likely be different than an EB-3 applicant from India.
The final action dates move based on how many people from each country (or group of countries) petitioned for the same green card. Usually, the date moves forward, closer to your priority date. However, if too many people from India apply for the EB-2, then the date could end up not moving at all or even moving backward in a process called retrogression. Once the final action date in your category matches or passes your priority date, the latter will be considered current and you will be able to move onto the next step.
Finally, once your priority date is current, you will need to decide between two options: adjustment of status and consular processing. Because you are in the U.S. under a nonimmigrant visa status (H-1B), you will be able to file an I-485 form to have your nonimmigrant status adjusted to an immigrant one. It can take about six months to process the I-485 depending on the service center and there is no way to expedite the process.
On the other hand, it may be faster for you to travel to the U.S. Consulate or Embassy in your home country in a method called consular processing. This involves making an appointment with the consulate or embassy and appearing for a one-on-one interview with a consular officer. Depending on your situation this can make the H-1B to green card processing time shorter and the cost cheaper.
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 Immi-USA, 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.
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