Think Immigration: The H-1B Nonimmigrant Visa Process – Key Concepts and Considerations

The H-1B visa is a vitally important option for U.S. employers seeking to acquire the talent they need to compete in the global economy. For foreign nationals desiring to live and work in the United States, it can offer a temporary pathway for workers with the skills those employers need. It enables these skilled professionals, frequently foreign nationals trained in the U.S., to fill specialized roles that require specific expertise. In this article, we’ll cover everything you need to know about the H-1B visa, including eligibility, the application process, and key considerations.

What is the H-1B Visa?

The H-1B visa is a temporary work-based visa for qualified foreign workers in specialty occupations. These roles require at least a bachelor’s degree or equivalent experience in specialized fields such as engineering, IT, healthcare, finance, or law.

Who Can Apply for the H-1B Visa?

To qualify for the H-1B visa, beneficiaries must meet the following criteria:

• Education and Experience: They must possess a bachelor’s degree or equivalent professional experience in a field related to the job offer.
• Specialty Occupation: The job offered by the U.S. employer must require specialized knowledge, typically in STEM, academia, or other professional fields.
• Salary Standards: The offered salary must meet or exceed the wage requirements set by the Department of Labor.
• Background Checks: The applicant’s immigration history, including previous visa denials or entry/exit issues, will be reviewed.

Can I Apply for the H-1B Visa Through My Own Company?

Yes, entrepreneurs can self-sponsor for the H-1B visa if they own a U.S.-based company. This option is particularly beneficial for foreign entrepreneurs looking to establish or expand their businesses in the U.S.

Key Benefits:

• Flexibility in Ownership: Entrepreneurs can own 100% of their company and still sponsor themselves.
• No Extraordinary Skill Requirement: Unlike the O-1 visa, the H-1B visa does not require exceptional talent, making it more accessible.
• Work Authorization for Spouses: Certain H-1B holders’ spouses may qualify for work authorization.

Key Considerations for Self-Sponsored Beneficiaries:

• H-1B Registration “Lottery” System: Self-sponsored applicants are still subject to the annual lottery system.
• Financial Stability: The sponsoring U.S. company must demonstrate the ability to pay the beneficiary’s salary for at least three years.
• Initial Approval Period: Self-sponsored H-1B visas are initially granted for 18 months, with extensions possible upon meeting specific criteria.

Requirements for Self-Sponsorship

• Official Company Setup: The business entity must be legally established in the U.S., have a three-year business plan, and maintain a physical presence.
• Specialty Occupation: The entrepreneur’s role must require specialized knowledge and at least a bachelor’s degree level.
• Employer-Employee Relationship: The company must prove it has the authority to manage the applicant’s work.
• Salary Compliance: The salary must meet Department of Labor standards.

H-1B Process and Timeline

The H-1B visa application follows a structured timeline:

• Account Creation and Registration: Employers must register applicants in the USCIS system by March and pay the required fee.
• Lottery Drawing: If demand exceeds the annual cap (total of 85,000 visas), a lottery is conducted and selected registrants are notified before April 1.
• Application Submission: H-1B petitions for selected registrants must be submitted by June 1.
• Application Review: USCIS reviews the petition, which typically takes 2-3 months.
• Approval and Work Authorization: If approved, the beneficiary can typically begin working in H-1B status on October 1(see below).

H-1B Process for Applicants Inside and Outside the U.S.

Applicants Inside the U.S.:

• Current Status: The beneficiary must hold a valid nonimmigrant status (e.g., F-1, H-4, L-1, or J-1).
• Change of Status: The H-1B petition must request a change of nonimmigrant status and, if approved, the beneficiary’s status will change to H-1B on the effective date of the approved petition.

Applicants Outside the U.S.:

• Visa Application: After USCIS approves the H-1B petition, the applicant must apply for the visa at a U.S. consulate or embassy.
• Entry to the U.S.: The applicant can enter the U.S. and begin working on the effective date of the approved petition.

H-1Bs and the Green Card Journey

The H-1B visa may be a stepping-stone to a green card. It is initially granted for three years and can typically be extended for another three years and, in certain circumstances, longer. During this time, employers wishing to employ the individual on a longer-term basis can initiate the green card process, usually through the filing of the PERM labor certification.

Frequently Asked Questions

• How long is the H-1B visa valid?
  • Initially three years, extendable to six years.
• How long does processing take?
  • Premium Processing: ~15 days.
  • Standard Processing: ~3.5 months.
• Should I consider premium processing?
  • It may be worth the additional cost for faster results, especially for time-sensitive cases.

Conclusion

The H-1B visa is a valuable option for skilled professionals wishing to work in the U.S. while contributing to the shared prosperity and economic success of the U.S. and their employers. If you are an employer interested in H-1B visa options for your workforce needs, or if you are a foreign national interested in learning more about the process, the AILA member referral directory is available at www.ailalawyer.org.