USA and the UK
- What is the H1-B Visa?
- What are the Types of H1-B Nonimmigrant Visas?
- H-1B Visa Eligibility
- The H-1B Visa Application Process
- What is the Cost of the Application Process?
- Consular Processing
- An Explanation of the H1-B Visa Cap
- Rights and Obligations of an H-1B Visa Holder
- Tax Obligations of the H1-B Visa
- Common Reasons for Denial of an H-1B Visa
- What to Do if Your H-1B Visa is Refused
- Bringing Dependents to the USA on an H1-B Visa
- Extending an H1-B Visa
- Extending my Dependents’ H-4 Visa
- H-1B and Permanent Immigration
- The Process to Transfer from H1-B to Green Card
- How Can IAS Help?
- Frequently Asked Questions
What is the H1-B Visa?
The H1-B visa program is for employers wanting to hire foreign workers across various specialty occupations. It is specifically intended for roles that are difficult to fill with the local talent pool. This is designed as a temporary measure for businesses to fill emergent skills gaps.
This visa came in through the Immigration and Nationality Act of 1952 and the Immigration Act of 1990, which created a new form of nonimmigrant visa: the H-1A for nurses and the H-1B for all other specialty workers.
What are the Types of H1-B Nonimmigrant Visas?
There is not a single type of H1-B visa and the way the visa works is different for each of the four types. These types are as follows:
- Standard H-1B visa: A visa for foreign workers in a specialty occupation such as computer science, finance, medicine, and engineering.
- H-1B1 visa: This visa category is specifically for Singaporeans and Chileans in specialty occupations.
- H-1B2 visa: A visa for individuals providing a research and development service for the Department of Defence.
- H-1B3: The visa category for fashion models with a particularly high level of merit.
Reaching eligibility for an H-1B visa requires the foreign worker and the US employer to meet various requirements for each visa. You can find out more about these requirements in the below section.
Standard H-1B Visa
The occupation you will be going into as an H-1B worker requires the following:
- Theoretical and practical use of specialized knowledge.
- A job offer in an area with specialized knowledge.
- A bachelor’s or higher degree in a specific specialty area.
- An unrestricted state license, registration, or certification that allows the immigrant worker to perform their specialty occupation.
These requirements are in place for the foreign worker and the position the employer is advertising. For example, if the foreign worker has a bachelor’s degree in the specialty area, but the employer does not require it, they will not be eligible to apply for a standard H-1B visa.
The same requirements apply if you are applying for an H-1B1 visa, but you must also prove that you are a Chilean or Singaporean national.
H-1B2 Nonimmigrant Visa
The same requirements for a bachelor’s degree in a specialty occupation are in place for the H-1B2 visa. However, there are some additional requirements that must be followed. There are the below:
- A letter from a Department of Defense project manager which verifies that the foreign worker will be employed in cooperative research and development for a specific project.
- A description of what the foreign worker’s duties will be and the dates on which they will be performing them.
- Information on the other nonimmigrants currently employed on the project and those whose employment ended in the last year.
The H-1B3 visa is the only H-1B visa that does not require a minimum bachelor’s degree in the specialty area. However, some additional requirements need to be fulfilled to have this type of H-1B visa application improve.
- The position to be occupied needs to require fashion models with substantial public figure and acclaim.
- The fashion model must be considered to have a high level of merit and ability.
Gaining a H-1B visa is a lengthy process, requiring maximum commitment from the employer and the foreign employee. The following section guides you through each stage in the lengthy process, which includes:
- Registering for the H1-B lottery.
- Submitting a Labor Condition Application (LCA).
- Filing the Form I-129.
Registering for the H1-B Lottery
Because of the H1-B visa cap, most applicants must enter the lottery to get one of the limited visas given each year.
Entering the lottery is a fairly simple process. You must register with the United States Citizenship and Immigration Services (USCIS) online even if you already have an online account with them.
After this, you must pay the registration fee and complete basic information about yourself and the company sponsoring you for an H1-B visa.
Checking my Status
You can check the status of your position in the visa lottery at any time within the USCIS system. You can view that your status is one of the following:
- Not selected.
- Invalidated-Failed Payment.
When Can I Register for the H1-B Lottery?
The H1-B lottery is extremely restricted. It is open for just 14 days per year during the Spring, so you must be hyper-organized to succeed.
Some applicants won’t have to enter the lottery because their occupation is not subject to the cap. Make sure to double-check before you do so.
Submitting an LCA
Now that you have been successful in the H-1B visa lottery, it is time for your employer to submit an LCA to the Department of Labor. This document proves that you will be paid the same or higher than an American worker in the same position. Two metrics measures this:
- Actual wage rate: how much the employer pays to similarly qualified workers.
- Prevailing wage: the standard wage paid to similarly qualified workers in your position.
The LCA must be submitted to the Chicago National Processing Center within six months of the beginning of the employment. All LCAs are reviewed within seven days of being received.
Filing the Form I-129
The Department of Labor will certify your employer’s LCA. After that, they can complete Form I-129 (Petition for a Nonimmigrant Worker).
The Form I-129 will ask your prospective employer for the following information:
- Petitioner’s personal information.
- The requested classification for you.
- Your personal information and further information if you are already in the USA.
- LCA case number.
- Information about the proposed employment.
- The contact information of any attorneys or representatives helping with the application.
The form also has space for any additional information you and the employer think is relevant to your application.
What Other Documentation Is Required with the Form I-129?
Having submitted your Form I-129, you might be requested to provide some additional information to prove your status. This can include any of the following:
- Training certificates.
- Evidence of education.
- Documents for professional memberships.
- A resume.
- A letter of support.
- Employment confirmation.
What is the Cost of the Application Process?
Currently, there are two main costs that must be covered during the H-1B application process. Registering for the H-1B lottery will cost $10. Once the registration is successful, the employer pays $460 to file Form I-129. Further fees might be accrued depending on the exact nature of the role if the employee changes employers and if an attorney is hired.
These fees are not set in stone. In fact, they are rising rapidly, which could make it more difficult to hire an H-1B worker. Recent changes include:
- An increase in the pre-registration lottery fee to $215 (2050%).
- A rise in the Form I-129 fee to $1385 (201%).
The process is more complicated if you are living outside of the USA when you are filing your application. This is because you must also obtain permission to enter the USA via consular processing.
Consular Processing begins with Form DS-160, which will ask you for personal information and proof that you have the right to travel. As this is for a nonimmigrant visa, you will be charged a fee of $160.
After your Form DS-160 has been submitted, you will be asked to attend an interview at the closest US embassy or consulate to you. Bring the following documents to your interview:
- Your passport is valid for at least six months beyond your planned entry date into the USA.
- A copy of your Form DS-160 confirmation.
- Receipts for any application fees you have paid.
- A copy of your approved I-129 permission.
- A passport-style photo of you.
In the interview, you will be asked a range of questions to confirm that you are eligible to enter the USA and that you have been truthful in your application.
An Explanation of the H1-B Visa Cap
There is a nonimmigrant visa cap on H-1B visas of 65,000 and a further 20,000 for holders of a master’s degree or higher from a US college. When the cap has been reached, all applicants to the H1-B visa lottery will be informed. They will have to apply again for the next year.
Who is Exempt from the H1-B Visa Cap?
Not all workers are subject to the H1-B visa cap, which is one of the reasons that the number of new H1-B visas given each year is far higher than 85,000. Exempt foreign workers include the following:
- Higher education educators and instructors.
- Workers for non-profits affiliated with higher education.
- Non-profit researchers.
- Workers at a government research organization.
Rights and Obligations of an H-1B Visa Holder
Being a holder of an H-1B visa will grant you several different rights, which will help you to live a great life in the USA. They include the following:
- Right to work: you can freely work in the USA for the sponsoring employer in the job specified in your contract.
- Labor protections: you have a right to receive the prevailing wage or the wage offered to colleagues with similar experience. You may also join a union according to state laws.
- Change employment: you can change employment so long as your new employer files a new H-1B petition for you.
However, these rights also come with a range of obligations you must fulfill if you want to remain in the USA for the entire time your visa is active. These include:
- Compliance with laws: you must obey all federal, state, and local laws and must pay all taxes on the money you earn from your job in the USA.
- Reporting changes: you must keep the USCIS updated with any changes to your employment: job title, work location, and changes to duties.
- Maintaining validity: you must file for extensions promptly so you are never in the USA with an expired visa.
These are your basic obligations and rights under the H-1B visa. However, your tax obligations and rights are more complicated, which are worth spending more time on, detailed below.
Tax Obligations of the H1-B Visa
The primary complex obligation is paying taxes. Because of the USA’s federal system, there is a range of different tax obligations you need to fulfill. Failure to do so could get you into trouble with the Internal Revenue Service (IRS).
As an H1-B visa holder, you are considered a “resident alien” for taxes. This means that you must pay the following:
- Income tax.
- Social Security and Medicare taxes (sometimes known as FICA).
- Federal Income Tax Withholding: your employer must withhold federal income taxes from your paycheck.
- State and Local Taxes.
You also have access to a range of benefits as an H1-B visa holder, which can help you to pay less tax. When completing tax returns, make sure that you properly explore how the following may apply to your individual circumstances:
- Education deductions.
- Child tax credits.
- Foreign tax credits.
How Can H1-B Visa Holders File Taxes?
Ensuring you are filing for taxes appropriately is vital to avoid difficulties with the IRS. You need to make sure you follow the process below:
- Get a Social Security Number (SSN) or Individual Taxpayer Identification Number (ITIN). These numbers are used on tax documentation.
- Gather documents showing your income. Primarily, this will be the W-2 form from your employer.
- File your tax return by completing the Form 1040. You can gain instructions for how this can be done via the IRS.
Common Reasons for Denial of an H-1B Visa
While scores of well-completed H-1B visa applications are accepted each year, thousands more are rejected for various reasons. The most common issues relating to the job in the USA include the following:
- Inability to maintain a good employer-employee relationship throughout the employment period.
- Failure to prove that the job is a specialty occupation.
- Failure to show the credentials required to work in the specialty occupation.
- Inability to show the employer is established in the USA and can hire foreign workers in specialty occupations.
- Past violations from the employee in immigration law.
- A lack of clarity on what duties the employee will be completing or on the projects the employee will be working on.
On top of these issues, problems in your application could also lead to a denial of your visa. They include the following:
- Failure to pay filing fees.
- Inability to clearly connect with your home country, including prior extended periods living in a different country.
- The willful misrepresentation of your personal information.
The US government is getting even stricter in enforcing these restrictions. The rejection rate tripled from 2017-2019 to 18% and continues to rise. It is crucial that you properly complete your application to minimize the chances of failure. If you are unsure about any stages in the process, you must get help from an immigration attorney. To understand the immigration services we have to offer for H-1B applicants, please contact us at +1 844 290 6312 or online.
What to Do if Your H-1B Visa is Refused
Should your H-1B visa be denied, you will be permitted to say in the USA until the departure date specified on your arrival card if you are already in the USA. You mustn’t overstay this limit, as it will be near impossible to return to the USA otherwise. You must also immediately cease any work you are completing in the USA, as you no longer have a right to work.
In some cases, your employer may be able to submit an appeal to overturn the denial of your visa. They will need to submit an I-290B form and include supporting evidence proving that you should be able to receive a H-1B visa. If this is possible, you will be informed of your denial letter, and successful appeals are rare.
In most cases, it is more appropriate to review your application and submit an improved one for the following year. This will require you to pay all of the necessary fees again and for your employer to keep the position available to you for at least another year. To justify this additional cost, it is always worth hiring an experienced immigration attorney who can maximize your chances of success. Our lawyers at IAS have helped scores of people get a H-1B visa, and you can find out how we can help by calling +1 844 290 6312 or contacting us online.
Your spouse and children under 21 will be eligible to come to the USA if you are an H1-B visa holder. They will need to apply to become an H-4 visa holder, which can be after you receive your H1-B visa. The processing of each H-4 visa will cost $160. The following section will help you to complete your application.
Documentation Required for a H-4 Visa
The first stage of applying for any visa is to compile all of the necessary documentation for your application. The main document required is a completed DS-160 form. This will ask you for personal information, your contact details, family information, and about your previous trips to the USA.
You will also need to provide the following basic documents:
- Valid passport.
- Two passport-style photographs.
- Proof of application fee payment.
- A photocopy of your H-1B visa.
- Photocopy of forms associated with the H-1B visa, such as the I-129 and Labor Certification Application (LCA).
- A copy of your passport.
- Copies of your letters of previous work experience.
- Your recent tax filing information while working in the USA.
The documentation will also need to prove that the H-4 visa applicant is legally your dependent. For a child, all you need to submit is the original birth certificate. However, a spouse is more complicated due to concerns that marriage certificates can easily be faked. Your spouse can provide the following as proof that the wedding occurred. Providing the following can help your application:
- Wedding photographs.
- Copies of invitations.
- A list of guests.
- Receipts for wedding expenses
If you were married by a wedding registrar rather than at a church, you might also need to provide pictures of you, your spouse, and your witnesses signing the marriage certificate.
Extending an H1-B Visa
As covered already, your H1-B visa grants you a range of excellent rights for you and your family to live and work in the USA. However, it is only valid for three years. Luckily, you can apply to extend it for another three years. However, the H1-B visa is intended to fill temporary gaps in the US workforce, and you will have to return home after the end of this six-year period.
How Do I Extend My H1-B Visa?
The process of extending your H1-B visa is lengthy and requires ongoing support from your employer. The extension process must be initiated a minimum of six months before expiry, and you should start earlier so that you and your employer can gather everything required in plenty of time.
The process begins with your employer submitting an extension petition to the USCIS and paying the filing fee of $460.
As soon as the USCIS receives your extension petition, your authorization to remain in the USA will automatically extend for 240 days. This gives the USCIS time to review your petition, as standard wait times are eight months. It is essential that you do not travel outside of the USA during this processing period unless it is for business purposes, and your employer can submit a travel plan to the USCIS.
Once the USCIS comes to a decision, they will send your employer an I-797 Approval Notice. This will confirm that your visa has been extended and give an exact expiry date.
Extending my Dependents’ H-4 Visa
While submitting a petition to extend an H1-B visa, you can also submit a petition to extend your dependent’s H-4 visa. Please note this is your responsibility rather than your employer’s
To complete this process, you will need to send a completed Form I-539 to the USCIS.
The H-4 extension process will cost $370 plus $85 added for you and each dependent for biometric processing.
H-1B and Permanent Immigration
Despite all its advantages, the H-1B visa is still just a temporary measure to gain employment in the USA. Once it expires, you must return home. However, the H-1B visa can be a fantastic stepping stone that can help you to get hold of a Green Card.
What is a Green Card?
The Green Card is the most important document for anybody that wants to immigrate to the USA. It allows them to live and work anywhere in the USA. Furthermore, after three to five years as a permanent resident, they can begin the application process for US citizenship.
Getting hold of a Green Card will come at a cost. As an applicant from within the USA, the exact fee you will have to pay depends on your exact circumstances. However, you can expect it to run into the thousands.
There are just three stages to completing your adjustment of status so that your H1-B visa can become an employment-based Green Card. They are as follows:
- Employer Applies for the PERM Labor Certification
- Submit the I-140 Form
- Submit the I-148 Form
The section below details everything you need to know about these three stages.
Employer Applies for the PERM Labor Certification
To begin, your employer must successfully apply for a Permanent Labor Certification in your name. This PERM certification will put your employer in the position to sponsor you for an employment-based Green Card, bringing you to the USA permanently.
On this form, your employer will need to set your wage and conclusively prove that they could not find a suitably qualified US candidate for your position.
They must also complete an ETA 9809 form. This form confirms personal details about the employer, employee, any attorneys that are involved in the application, and the role.
Once you submit this application, you can expect to wait 6-18 months.
Submit the I-140 Form
The I-140 Form is the point at which you and your employee formally begin the petitioning process to get you a Green Card.
Having received the form, the USCIS will be in a position to give you a priority date. You must wait for this priority date to come to pass before you can begin the final process of your application for a Green Card. A priority date a long way in the future could seriously extend the time it takes to get your Green Card.
Submit the I-148 Form
This form is your final application to adjust your status from nonimmigrant to immigrant. You will again be asked a range of personal information about you, your family, your previous travel and employment in the USA, and crucial security questions.
Having submitted your 1-148 Form, you must wait 8-14 months for your application to be processed. Make sure that your H-1B visa remains valid during this time so you can legally remain in the USA. If you are successful, you will receive your Green Card in the mail and can remain in the USA indefinitely.
How Much Will It Cost to Get My Green Card?
Converting your H-1B visa to a Green Card is very expensive.
The application fee for Form I-140 is £580, and it is $1070 for the I-485. However, you should also factor in legal fees for any attorneys that you want help from during the application process. The exact amount for this will vary, but you can expect it to run well into the thousands.
You or the employer can pay these costs in any proportion. You will need to negotiate with them to find a fair arrangement for paying the fees.
The only document that your employer will definitely have to pay for is the PERM Labor Certification. It has no filing fee, but your employer may need to deal with other costs. This includes any lawyers’ fees and recruitment costs while proving that no appropriate US citizens could be hired for the role.
Getting an H1-B visa is difficult because of the strict requirements and the limitations imposed by the H-1B visa cap. However, it gives you great rights to work in a highly valued occupation in the USA. It is an opportunity to bring your dependents to start a great life in America.
Once you are in America, the H-1B visa is one of the best springboards to making a permanent move. The pathway from H-1B to Green Card is commonly taken on the road to US citizenship.
At IAS, our specialized lawyers and immigration advisors are knowledgeable in all processes of securing an H-1B visa, a Green Card, and citizenship. If you want to find out more about how our immigration services can help, contact us at +1 844 290 6312 or online. You will be put directly through to an immigration advisor who will guide you through what we can offer.
Last modified on August 29th, 2023 at 9:27 am
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The H1-B visa exists to temporarily bring foreign workers to the USA to fill skills gaps, but Americans may still be concerned that nonimmigrant workers might harm their employment prospects.
The Department of Labor has a range of mechanisms to ensure that a nonimmigrant worker is not privileged above a US worker when applying for a job. For example, the employer must prove that they will pay the nonimmigrant worker at least as much as they would pay a US worker.
Most H-1B visas will require the minimum entry requirement of a bachelor’s degree in the specialty area. But not all bachelor’s degrees are acceptable.
You must have been awarded it from an accredited college or university in the USA. If you have been awarded it by a foreign institution, it must be to the same level as an equivalent US degree.
Having been successful in the H1-B visa lottery, it can be frustrating if you have to wait even longer for your Form I-129 and other documents to be processed. Luckily, H1-B applications are eligible for premium processing, whereby your application is put to the front of the queue for faster processing.
The government guarantees your application will be processed within 15 days, or they will refund your premium processing fee of $2,500. Within this time, you will get a decision of one of the following:
- Approval notice.
- Denial notice.
- Notice of intent to deny.
- Request for further investigation.
- Notice that a fraud or misrepresentation investigation has begun.