The H-1B is a temporary work visa that allows foreign professionals in specialty positions to work in the U.S. and even pursue green cards for permanent residence. For years, it has been the most popular nonimmigrant visa due to its flexibility, its portability, and its relatively low requirements.
Due to this popularity, the H-1B application process is unlike the processes for any other visa. In this post, we will examine what goes into obtaining this visa and some of the top H-1B filing tips to increase your chances of approval and avoid common pitfalls.
See the latest H-1B Visa Guide: Ultimate Lottery, Timeline & Process.
As the 2020 filing window approaches, veterans of the H-1B process are already getting their documentation in order so that they don’t miss the filing date on April 1st. Because the filing period is so short, you too want to be prepared so that you can get ahead of the competition. With the new changes to the H-1B rules this season, it is more important than ever to be aware of what you need to do to get this competitive visa.
There are two main components involved in the H-1B 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 H-1B filing tips for the 2019-2020 season and an overview of the H-1B visa process.
Specifically, we’ll discuss the different quota categories and their eligibility requirements as well as questions our firm frequently receives from H-1B applicants. If at any point you have questions regarding the H-1B visa process or want to explore your options in more detail, you can schedule a consultation with a VisaNation Law Group H-1B 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.]
H-1B Visa Process Basics
Why should you start planning to get an H-1B visa this season?
H-1B 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 H-1B 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 190,000 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.
Once the USCIS closes the window, it proceeds to conduct two lotteries: a master’s cap and a regular cap. In the past, the master’s cap was conducted first, then any petitions that were not selected were placed in the regular cap for a second chance.
However, the USCIS has changed things for the 2020 H-1B season. Now, the regular cap is being conducted first, which will include all petitions (including master’s cap petitions). All unselected master’s petitions will be entered into the master’s cap afterward.
This is intended to give preference to master’s cap petitions, as some will inevitably be selected in the regular cap, making the pool for the later master’s cap smaller than it would be if it were conducted first.
(Here’s a sneak peek of the first filing tip in the H-1B visa process)
Tip #1: Get your petition in as soon as the window opens!
As many individuals learned from last year, it’s crucial to submit your petition as soon as the window opens on the first business day in April. Any cap-subject petitions filed before that time will be rejected and so will any petitions sent after the window closes (usually five to seven days after it opens). Check out the H-1B Visa 2018 News, Quota, Lottery Predictions Complete Guide. Here you’ll find more details related to the lottery process.
H-1B Visa Process Quota/Cap Count
Do you know which category you fit in?
The 2019-2020 H-1B 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 H-1B 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 H-1B filing tips in regards to exemptions its best to explain your situation to a qualified immigration attorney.
Challenges to getting an H-1B 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 H-1B 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.
Top 12 H-1B Filing Tips Revealed
Get the inside scoop on how to increase your odds of selection with these 12 tips on how to get an H-1B visa!
Here are the top 12 H-1B filing tips for getting an approval for the 2019-2020 H-1B visa process:
Tip #1: Get your petition in as soon as the window opens!
In past years, the H-1B 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 2019 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 cap-exempt employer, chances are they could be exempt. The following is a list of petitions that will not be counted against the cap:
- Petitions for a cap-exempt employer (more information in Tip #10)
- Petitions for H-1B transfers to new employers
- Petitions for H-1B extensions
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. The first attestation of the Labor Condition Application requires that the employer will pay the prevailing wage to the employee, so documentation such as bank or tax statements can help support the employer’s ability to do so.
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. Having an error or omission on your petition could result in an automatic rejection. An immigration attorney can help you ensure that all forms and fees are sent to the correct places.
Tip #6: Part-time workers can also file an H-1B petition.
Many are surprised to learn that H-1Bs are not limited to only full-time specialty workers. When it comes to the number of hours you can work on the visa, it’s flexible so if you are a part-time worker, apply! You can also apply if you are planning on working for multiple employers simultaneously.
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.
The position on your H-1B petition must correspond to your degree. Even though it is occasionally possible to get an H-1B 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 H-1B 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 H-1B 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 H-1B 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: Look for an H-1B cap-exempt job
The best way to increase your chances of selection are to become cap-exempt. This can be done either by already having been counted against the cap or by seeking a job with a cap-exempt employer. The rules for this type of employer are outlined in detail further on in this article, but here are the basic requirements. A cap-exempt employer is either:
- An institution of higher education
- A non-profit organization associated with an institution of higher education
- A governmental research center
Cap-exempt petitions are not only free from the uncertainty of the lottery selection system, but also the associated time constraints. You do not need to file a cap-exempt petition during the narrow cap window and your employment start date is not relegated to October 1st of that year.
You may be tempted to try and get an H-1B with one of these employers to circumvent the cap and then switch to a cap-subject employer when you are in the U.S. However, you must always have a sponsoring employer and switching this sponsor requires filing another petition. If your new sponsor is subject to the cap, then your petition will be also and you will only be able to file during the lottery window.
Tip #11: Be careful as a business owner
If you are the owner of a business, you should tread lightly when petitioning for an H-1B visa. The regulations state that you cannot sponsor yourself under any circumstances, which means that sole proprietors are unable to obtain an H-1B through their business. However, there is a way that certain business owners can apply for an H-1B.
Essentially, you must not be the person petitioning and there must be a valid employer-employee relationship between the beneficiary and the sponsor. Your sponsor will need to be an executive or board of directors that has power over your salary, your employment status, and your day-to-day tasks and responsibilities. Only then can you get an H-1B through your business. Keep in mind that the USCIS may still heavily scrutinize your case because of the potential for fraud that comes with this avenue.
Tip #12: 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 H-1B 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 H-1B visa
- To begin the 2019-2020 H-1B visa process and get H-1B 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 will be October 1, 2019. 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 2019-2020 H-1B visa process and more H-1B filing tips.
Changes from the Previous Season
Because getting an H-1B 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 H-1B 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 H-1B 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 H-1B 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.
As we mentioned earlier, the H-1B lottery has undergone a change that will go into effect for this 2020 filing season. The master’s lottery, which used to be conducted before the regular lottery, will now be conducted first in order to increase the chances for master’s petitions to be selected.
There is also another change that is slated to go into effect next year during the 2021 season. Rather than filing petitions to enter into the cap, the USCIS will begin an online pre-registration system that does not require petitions starting next year. The USCIS will randomly select the beneficiaries from the registered applicants during the lottery and the sponsors of those who are selected will then file their petition packets. This is intended to make the process easier for the USCIS and to make it so that sponsors do not have to file lengthy petitions and fees just to have it all returned if they are not selected.
Your sponsoring employer should be aware of the recent changes made to the H-1B 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 H-1B status.
- As of December 2, 2019, the premium processing fee has increased from $1,410 to $1,440.
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 H-1B Visa FAQs
The most frequently asked questions about the 2019-2020 H-1B visa process answered!
Can a foreign national file more than one petition to get H-1B visa this year?
If you have more than one H-1B 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 of 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 H-1B visa?
Yes, though there are some stipulations. The USCIS takes into consideration a number of factors including your geographic location when issuing an H-1B 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 H-1B visa the coming fiscal year?
There are a number of ways to get sponsored by a company for an H-1B 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 H-1B filing tip: A list of H-1B 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 H-1B 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 H-1B 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 H-1B 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 H-1B 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 H-1B status.
Am I able to get six additional years on H-1B status if I was previously on H-1B 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 H-1B will be applied to your current six-year limit.
Why do some H-1B petitions take longer than others?
If two H-1B petitions are filed at the same time during the H-1B 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 H-4 if my spouse and I are both H-1B visa holders?
You are permitted to do this and the process begins by filing a change of status application with USCIS to H-4. 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 H-4 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.
How VisaNation Law Group Immigration Attorneys Can Help
The H-1B attorneys at VisaNation Law Group have extensive experience and a great reputation for offering top-notch representation for the H-1B visa, L-1 visa, and employment green card cases. We offer a competitive flat fee for H-1B filings and you may qualify for a free initial consultation to review your case. If you have any additional questions regarding the H-1B visa process or need more H-1B filing tips please don’t hesitate to contact us.
VisaNation also offers services in the following areas:
- H-1B, 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