This blog post was co-authored by Aaron Blumberg, Partner & Attorney at Fragomen and Interstride.
The US has many visas for temporary workers or non-immigrants. In this post, we will focus on the most common employment-based US visa: the H-1B. This is an employer-sponsored visa, so it’s vital for employers to understand H-1B visas before beginning the hiring process for a foreign national.
What is an H-1B?
H-1B visas are open to professionals working in a specialty occupation who are sponsored by a US employer. The visa grants work authorization to a foreign national for up to six years. The visa holder can work part-time or full-time. To be considered a specialty occupation, usually a bachelor’s degree or higher is required. The H-1B is a dual intent visa, which means the worker can apply for permanent residency while on the visa if you wish to remain in the US long term.
H-1B visas are allocated using a lottery system for certain employers. Each year, there are 65,000 H-1B visas available for employers that have to apply through the lottery. 6,800 of those visas are set aside for professionals from Chile and Singapore. There is high demand for H-1B visas, so luck is a factor in this lottery system.
An additional 20,000 H-1B visas are available for those with an advanced degree from a US university. There is less competition for these visas, so it may be advantageous to recruit international graduate school students. The following employers are exempt from the lottery cap and can request as many H-1B visas as they need:
- Non-profit colleges and universities
- Non-profit organizations affiliated with colleges and universities
- Nonprofit and government research entities
How to apply as a sponsor for H-1B visas
Applying to sponsor employees with H-1B visas for the first time may seem overwhelming with the number of forms to complete and abbreviations to learn. To help demystify the process, we have broken it down into four easy steps.
- Register for the lottery in early March through USCIS. You will be notified if you are selected by the end of March. If you plan to hire more than one foreign national, you can register them all under the same submission. You can register up to 250 employees in one submission and complete as many submissions as needed. It costs $10 per employee you will sponsor to enter the lottery.
- Once selected in the lottery, get your Labor Condition Application (LCA) certified by the DOL. It generally takes eight days to process the LCA. You must notify current employees that the LCA was filed, and employees should be allowed to review it upon request. The purpose of the LCA is to prove that you can pay the prevailing wage for the specific occupation in that area and show that hiring an H-1B worker will not negatively affect American workers.
- File your H-1B petition with USCIS between April 1 and June 30. Here is the information needed to file:
- Company name and address
- Name, title, and contact information of authorized signatory
- Documentation of your company’s operations such as an annual report or business model
- Job title of the H-1B worker’s position
- Address of the work site
- Starting salary
- Minimum requirements and detailed job duties for the position
- Pay H-1B fees to USCIS. The basic fees are approximately $960, and additional fees may apply to some employers. For an extra $2,500, you can purchase expedited processing so that your H-1B visa petition is granted within 15 calendar days. With standard processing, it could take up to eight months for the visa to be approved.
When can a foreign national Start Working in the US?
Once your H-1B visa request is approved, your new hires can start working on October 1st or later, but no sooner than that. If the employee is currently working for you under another visa status such as OPT with an F-1 visa, there may be a gap in their work authorization between the end of the authorized OPT employment and October 1st. International students who are on OPT or STEM OPT may be eligible for a Cap-Gap Extension so that they can continue working for you through October 1st.
