H-1B Visa: a Complete 2023 Lawyer Guide

H-1B Visa Requirements

As with many U.S. visas, H-1B has very strict requirements that all applicants must adhere to. They are listed below:

Position Requirements

• The job offered must be filed as a “specialty occupation.” A specialty occupation requires a bachelor’s degree or an advanced level of education certification. There are distinct positions that may not mandate a bachelor’s degree due to the complexity or particular listed duties. However, most positions categorized under ‘professional’ require a bachelor’s degree.
• Examples of qualified positions: engineers, professors, researchers, medical, accountants, attorneys, and architects.

Education Requirements

• The bachelor’s or advanced degree must originate from an accredited university or college. The degree is required to relate to the H-1B specialty position. If the degree was obtained outside the United States, it must be equivalent to an available U.S. degree.
• Work experience is not a pre-requisite if holding a bachelor’s degree. Education requirements may be substituted with work experience. The general rule for the amount of accepted work experience: 1 year required of University = 3 years of work experience.

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Department of Labor and USCIS Requirements

The H-1B visa requirements also entail the employer to submit an I-129 form to the USCIS once the DOL certifies the LCA.

• Prevailing Wage Determination: This is a determined average wage paid to U.S. employees in similar fields. The foreign professional must receive at least the given prevailing wage.
• Employment of the foreign professional will not affect U.S. working conditions in similar fields
• Employer is obligated to internally post notice of filing for H-1B
• There cannot be an existing strike/layoff/lockout within the intended field
• Employer must be compliant with public examination processes
• If the employer terminates the foreign professional’s employment before designated time, the employer must pay the expenses associated with transportation back to the home country.
• The employer is not authorized to grant the foreign professional employment until the USCIS indicates approval.

 U.S. Employer Requirements

• It is required to have the funds necessary to pay the foreign professional
• The employer must provide an official job offer. An official job offer signifies that documented evidence can be presented to show a true business need.

Our Experience with H-1B Visas

Our legal team handles numerous H-1B applications every year. We proudly help many U.S.-based companies bring foreign talent that allows their businesses to grow. In our recent H-1B success story, we helped a foreign worker with degrees in business management and administration who faced an RFE while being considered for an IT position in the US through H-1B visa extension. The USCIS questioned the employer-employee relationship, the specialty nature of the position, the individual’s qualifications, the company’s control over the employee, and the availability of the job throughout the individual’s stay. The VisaNation attorneys addressed each query satisfactorily, providing evidence for the specialty nature of the position, establishing a valid employer-employee relationship, and proving the availability of the job. The case was approved, highlighting the importance of having experienced lawyers in the field of immigration law.

H-1B Visa Process: Step-by-Step

Once the USCIS approves the H-1B petition filed by the employer, the foreign worker can then get the H-1B Visa stamped at a U.S. embassy abroad or change status if he/she is already present in the U.S. The H-1B visa is granted for an initial 3 years period unless listed as a Chile or Singapore national. There are additional H-1B Visa requirements that must be followed by both petitioner (employer) and beneficiary (employee).

The H-1B visa process involves two major factors: the sponsorship by a U.S. employer and petitioning with the USCIS. The applicant must have a U.S. employer to start the process. When the potential H-1B holder finds a U.S. employer who is eligible and willing to file an H-1B visa on his/her behalf, the employer must receive a labor certification application and submit an H-1B petition to the USCIS. Below you will find a list of H-1B visa documents and forms:

1. If the petitioner is obtaining attorney representation or an H-1B lawyer, the petitioner must file a G-28 form. The G-28 should have all sections of the form completed. This entails a signature and printed name of the attorney and the signature of the petitioner.
2. The U.S. employer is required to submit Form ETA-9035 (Labor Condition Application). The Labor Condition Application is mandated to be filed online through the Department of State’s iCert Portal System.
3. The employer must have received an approval of the Labor Condition Application before filing the I-129 form. After approval, the employer is obligated to file Form I-129 (Petition for a Nonimmigrant Worker), filing fee, supplementary documentation, and the approved Labor Certification Application.
4. The I-129 must have a completed H Classification supplement which is located on pages 11 and 12 of the form.
5. The petitioner is required to ensure proper completion of the H-1B Data Collection and Filing Fee Supplement. H-1B Data Collection and Filing Fee Supplement are on pages 17-19 of Form I-129.
6. If the petitioner wishes to request Premium Processing, form I-907 must be completed. Premium processing requires a $2,500 filing fee in a separate check/money order, an I-129 receipt, and Form I-907. The I-907 is a Request for Premium Processing Service. This is filed after submitting form I-129.

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Why You Might Need an H-1B Lawyer

If you are a foreign national looking to work in the U.S. or an American company looking to employ a foreign worker, you may need an H-1B lawyer to help you navigate the complex process of obtaining an H-1B visa. Here are some reasons why you might need an H-1B lawyer:

1. Complex legal requirements – The H-1B visa process involves complex legal requirements and documentation. An H-1B lawyer can help you understand the legal requirements and ensure that your application is complete and accurate.
2. Competitive application process – The H-1B visa program has a limited number of visas available each year, and the application process is highly competitive. An H-1B lawyer can help you develop a strong application and increase your chances of success.
3. Potential for delays and denials – The H-1B visa process can be lengthy, and there is always the potential for delays or denials. An H-1B lawyer can help you navigate these potential issues and ensure that your application is processed as smoothly as possible.
4. Changing immigration policies – Immigration policies and regulations can change quickly, and it can be challenging to stay up-to-date on these changes. An H-1B lawyer can help you understand the latest policies and regulations and ensure that your application is in compliance.

H-1B Cap

Every fiscal year, the H-1B visa is limited by an annual cap of 65,000 visas. However, there are some applicants that are exempt from the cap. Beneficiaries with a U.S. master’s degree or higher are exempt from the cap if it is filed among the first 20,000 petitions available.  Also, if the H-1B worker is employed or petitioned on behalf of an institute of higher education it is not subject to the H-1B cap.  Related nonprofit entities, nonprofit research, and government research organizations are H-1B cap-exempt.

The spouse and unmarried children of the H-1B visa holder have the option of admission through the H-4 visa. However, members on the H-4 visa are not authorized to work in the United States.

Having the right immigration team behind your employment immigration application will increase chances of success. At VisaNation, our top priority is client satisfaction and getting the best results in every case. Get started today!

Alternatives to H-1B Visa

H-1B visa is not the only pathway for employment-based immigration to the U.S. Here are the alternatives:

• EB-1 visa
• EB-2 visa, which is suitable for foreign workers with exceptional abilities or advanced degrees, and allows for National Interest Waivers. Understanding the contrasts between EB-1 and EB-2 is also essential.
• EB-3 visa, which is commonly used to recruit foreign workers in professional, skilled, or unskilled occupations.
• EB-4 visa, which is unique and reserved for religious workers and special immigrants.
• EB-5 visa, which was created specifically for investor immigration to the United States.
• L-1 visa, which enables multinational firms to move their employees from international locations to U.S. offices.
• E-3 visa, specifically for Australian workers in specialized occupations.
• TN visa, which is only for Canadian or Mexican nationals who meet specific occupation requirements.
• O-1 visa, which is ideal for bringing in workers with extraordinary abilities to work in the United States.
• P visa, which is intended for temporary workers such as athletes, artists, and entertainers.
• R visa, which enables temporary work for foreign workers of nonprofit religious organizations.
• J-1 visa, which is designed for exchange visitors who want to study or work in the United States.

H-1B Period of Stay

As an H-1B non-immigrant worker, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign from your position. You must contact the Service Center that approved your petition in writing if you believe that your employer has not complied with this requirement.

Why Choose VisaNation Law Group H-1B Visa Lawyers

• Dedicated immigration practice with specialization in business and employment immigration.
• Great track record of success in complex new H-1B and transfer/extension cases, including those filed by small employers (<50 employees).
• Efficient and Accessible H-1B Immigration Lawyers.
• Highly competitive Flat Fee for H-1B filing.
• Timely filing of H-1B Visa petitions and our commitment to provide you with regular updates.

We offer free consultations to certain qualified H-1B clients, allowing you to speak with VisaNation H-1B visa lawyers. Contact us to learn how we can help you get an approval of your H-1B petition in a timely and efficient manner.

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H-1B Attorney Fee

We charge a flat H-1B visa attorney fee of $2,400, which includes shipping and incidentals but does not include RFE responses, if applicable. In addition, you are responsible for the USCIS filing fees associated with your case. If after your initial consultation, you decide that an H-1B visa is not a suitable course of action, we offer a range of other immigration options.

Learn more about H-1B visa processing fees.

Related H-1B Topics

• H-1B Benefits
• H-1B Processing Time
• H-1B Annual Cap
• H-1B Visa Stamping
• H-1B Visa Transfer
• H-1B Transfer Premium Processing 
• H-1B Visa Extension
• H-1B Dependent Employer
• H-1B Lottery Predictions
• H-1B for Nurses
• H-1B for Doctors
• H-1B for Teachers
• H-1B Cap Exempt 
• H-1B Grace Period
• H-1B Interview
• L-1 vs H-1B
• H-1B Transfer Denied