USA H1B VISA
H1B Visa Application Process
- H1B Regular Processing
H1B visa applications can be filed by US employers one of 2 methods:
- H1B Regular Processing, or
- H1B Premium Processing
The difference is that H1B Premium Processing is a faster method to obtain an H1B visa. However, the US Government does charge an extra fee of $1,225 for Premium Processing (to expedite the application processing in as little as 15 days).
Regular Processing is a more cost-effective method but it takes longer. There is no set timeframe for a visa to be processed by the USCIS when filed through Regular Processing (it can take anywhere from 1 month to 6 months).
Below is an outline for the Regular H1B visa Processing method
H1B Visa - ' Regular' Application Process:
1. Offer & Acceptance of H1B Employment - H1B Sponsoring Company files a petition on your behalf.
An employer can be an individual, partnership or corporation. Applications are "job specific." If your situation changes (for example, you lose your job or change locations), your new employer must file a new H1B visa petition. The visa is only valid for work with the employer that filed the original petition. The USCIS requires employment letters which provide:
» Specific information addressing the positions held
» The exact duties of the position.
» The exact dates of employment.
» Information regarding the supervisors and co-workers of the beneficiary.
2. The 'Prevailing Wage' and actual wage must be determined and compared. The H1B sponsoring company is required to pay the higher of the two.
The prevailing wage is determined by the State Employment Security Agency by completing a special form, which asks the employer for the responsibilities, skills and experience needed for the job. The actual wage is determined by comparing other workers in the same positions with the same level of experience.
3. File the Labor Certification Application (LCA).
This is a form that contains information about the H1B Sponsoring Company. By completing and signing the form, the sponsor company is agreeing to pay the higher of the two wages, that the employment of this individual will not adversely affect the conditions of other workers and that there is no strike for their occupation at the workplace. Recently, Congress determined that H1B sponsor companies must attest that they will offer H1B visa holders the same benefits as their other workers. This includes health, life, medical, retirement, stock options and bonuses.
4. When the LCA is approved, the Department of Labor (DOL) will return a certified copy to the H1B sponsoring company.
5. The sponsor company must post notices at two conspicuous places at their business of the H1B visa filing for 10 days or provide notice of the filing to the collective bargaining representative for their employees.
The LCA form can be used for the actual posting as well. After the Department of Labor accepts the LCA, then your employer can file your H1B visa petition.
6. H1B Petition assembled & filed with appropriate USCIS Service office.
The filing must include the required forms, fees, documents and information; form I-129, education & experience evaluation & documents, training certificates, professional memberships, resume, employment agreement and letter of support.
7. Wait for the H1B petition to be processed.
Processing times vary depending upon service center and the visa. It could be a few months wait. If the H1B employer can show a substantial need for the employee, USCIS might approve the petition sooner. Employment cannot begin, however, until USCIS has issued the appropriate visa.
8. Receipt issued by USCIS
The petitioner (sponsoring company) is sent a receipt by the USCIS Service Centre which bears 9 digit reference number pertaining only to that particular case, H1B processing times and general information about the petitioner and foreign worker. This is the petitioner?s first confirmation that the petition is in the adjudicating queue.
9. A notice is generated by the prospective employer and mailed to the applicant notifying him/her of this receipt and outlining information on processing times etc. The notice should warn the consultant not to resign from current employment, sell accommodation or make any major life changes until it is communicated that the H1B visa petition has been approved.
10. Petition Approval
Generally a case will be approved within or on the designated time frame outlined in the USCIS receipt. An approval notice (Form I-797) is issued to the petitioner. The Form I-797 shows dates of validity for the foreign worker to work in H1B status for the petitioner .
The H1B visa beneficiary then applies for personal and family visas at the Consulate.
Normally, people apply to the Consulate that is closest to where they live.
Visa processing normally takes 2-3 days, depending on the Consulate.
Once the passports are returned with valid H1B visa stamp, the Consultant and his/her family may enter the U.S.
Information / Documents required from the Foreign Applicant:
» Sponsorship Job Offer from a US employer.
» Copy of your current resume.
» Copy of passport.
» Copies of degree certificates and transcripts or mark sheets (if applicable).
» Employment reference letters from previous employers (if applicable).
» Professional License (if applicable).
» Copies of any professional development course certificates (if applicable.
» Copy of your education evaluation, if one has already been completed (if applicable).
Not Required - but - good to provide if you are already in the USA:
» Copy of the front and back of I-94 card.
» USA Social Security number (if you have ever had one).
» Copy of I-20 authorizing practical training and copy of EAD card.
» Copies of any prior H1B approval notices or J1 (IAP-66 forms).
» If you are currently on H1B status and are changing employers or need an extension of stay with the same employer - a copy of your most recent pay stubs or a letter from your current H1B employer verifying your current employment with them.
Before an H1B application can be filed - all Foreign nationals must 1st obtain a job with a company who will sponsor/apply for your H1B visa - start here
Information / Documents required from the US Employer:
» Job title of the position.
» Detailed job description.
» Salary offered.
» The company's minimum requirements for the job (i.e. degree or work experience required).
» Name and job title of person who will sign the forms on behalf of the company.
» Name and address of company.
» Informational brochures/promotional literature about the company. If the company is new / just starting up - provide as uch financial information about the company as you can such as - bank statements, most recent income tax return, articles of incorporation, business plan, financial statements or any documentation that will prove that the company is lucrative and can pay the salary of the foreign worker you want to hire.
» Employer Federal Tax I.D. Number - the year company was established, approximate number of employees and approximate gross and net annual income
» Telephone number and fax number for company.
» Client site letter on the client site's letterhead. We will be happy to assist you with language necessary for this letter to be most effective.
» Completed US Immigration Bureaus visa filing forms and fees.
Information required on spouse and children, if married - to get an H4 visa:
» Full name, date and place of birth.
» Marriage certificate.
» Birth certificates of your children.
» C opy of spouse and children's passports.
Not Required - but - good to provide if already in the USA:
» Social Security numbers for spouse and children.
» Copy of the front and back of their I-94 cards.
H1B Visa Filing Fees and Costs
H1B Visa Fees and Costs associated with preparing, filing and processing H1B visa applications are normally ALL paid by the US Employer / Sponsor Company.
USCIS H1B Processing Fees for visa filing are legally required to be paid by the US Employer. USCIS fees are those paid to the US Governments Immigration Bureau to process the application and issue the visa.
H1B Immigration Attorney Costs for services provided for visa application preparation and filing petitions with the USCIS are NOT legally required to be paid by the US Employer (but normally are).
The Structure of H1B Visa Filing / Processing Fees:
Standard H1B Filing Fee:
The standard H1B filing fee is for the 1-129 petition. This H1B fee is also payable for H1B extensions, H1B transfers, and amendments. Almost everyone has to pay this fee. There can also be additional H1B visa fees at the US consulate when applying from abroad.
ACWIA (Training) H1B Fee:
The employer must pay a fee towards a training fee meant to fund the training of U.S. workers. But if the employer has less than 25 full-time employees, they must pay only one-half of the required fee [see Section §214(c)(9) of the Immigration & Nationality Act].
The training fee is paid one time to initially grant the H1B petition and to extend H1B status. But if this is the second or subsequent extension with the same employer, then the training fee is not required.
The following are exempt from the training fee: primary or secondary educational institutions, institutions of higher education, nonprofit organizations related to or affiliated with any institutions of higher education, a nonprofit organization that engages in established curriculum-related clinical training of students registered at any institutions of higher education, nonprofit research organizations or a governmental research organizations [see Section 214(c)(9)(A) of the Immigration & Nationality Act and 8 C.F.R. §2l4.2(h)(19)(iii)-(iv).
H1B Fraud Fee:
A $500 fraud prevention and detection fee is required for the initial H-1B petition or to switch employers. The fraud fee is not required for extensions with the same employer [see Section 214(c)(12) of the Immigration & Nationality Act].
Optional H1B Fees:
Premium Processing - this fee is almost always worth every penny. Decisions are made within 15 business days by the USCIS. Your lawyer is provided a direct telephone number and email address for the office, and the specific officer, handling your matter (should any issue arise that needs attention). And if applicable, your family?s H4 applications will be processed along with the primary H1B visa petition at no additional cost. Family members can apply as dependents of the primary H1B applicant. See Form I-539 for current fee.
H1B Immigration Lawyer / Attorney Fees:
It is highly recommended to use an experienced and qualified H1B immigration attorney to help prepare and file the H1B visa application documents and forms. Attorney fees vary depending on the attorney you choose to use, but as a guideline you can expect to pay anywhere in the region of $1,000 - $3,000.
Summary of Latest H1B Fees for Filing and Processing H1B Visa Applications.
* the below summary includes the most recent H1B Fee Increase which was implemented on November 23rd, 2010, which is also applicable to 2011 H1B visa filing.
H1B Regular Processing (no set duration for processing times - can take months).
Visa Fees payable to USCIS if Company has less than 25 employees = $2,000 approx.
Fees payable to USCIS if the Company has more than 25 employees = $2,750 approx.
H1B Premium Processing (processing expedited in as little as 15 days).
Add an additional $1,225 onto the H1B Regular Processing Fees.
View Details and Cost Table of the Latest H1B Visa Fees Increase by the USCIS.
View Details of Previous H1B Fee Increases by USCIS.
H1B Visa Extension.
Extending (ReValidating) Your H1B Visa.
A US visa can only be revalidated / extended if you currently have the same visa classification stamped in your passport as the visa type you are trying to revalidate. If you are seeking a visa which is in a different category to your existing visa, you must follow the process to obtain or transfer from your current status to the new visa status.
Important: all male nonimmigrant visa applicants from the ages of 16 to 45, no matter what nationality or where they apply, must complete and submit a form DS-157 with their Nonimmigrant Visa Application (DS-156). Applications submitted without the required forms will be denied.
How can I extend my stay in the U.S.?
When you enter the US, the USCIS office at your port of entry will issue you a Form I-94, in your passport. The USCIS inspector will write the duration of your valid status in the US on your I-94. The date on the Form I-94 is the date to which you can stay in US. That is, if you have "duration of status" you may remain in the US as long as you are in the same job or same category of job. It is always advisable to apply for your extension of stay with INS a few months before your I-94 expiration date.
How can I Revalidate/Extend my H1B Visa?
You will require the following documents :
1) Your passport valid for at least six (6) months. Your passport must contain your existing visa of the same classification/category as the one you are revalidated. For example; if you currently hold H1B status, you can revalidate/extend your H1B visa. Whereas, if you hold an H4 visa or other visa type, you cannot revalidate to an H1b visa .
Your visa may be revalidated if it has a remaining validity of not more than sixty (60) days, or has not been expired for more than one year.
2) You will need your original Form I-94 annotated by the (USCIS) inspector when you were last admitted to the USA. Your original I-94 should be stapled in your passport. If your Form I-94 has expired, you should submit a valid Form I-797 Notice of Approval from the USCIS for each visa applicant.
3) A valid Form I-797 (employment petition) which was issued by the USCIS must be submitted. The form will indicate your current employer and the approved extension of your stay in the USA.
4) You will require a comprehensive letter from your employer identifying you and describing in detail the nature and duties of your position, the company you work for and its business standing and markets to justify the need for the visa extension. The letter submitted must be on your employers letterhead. The letter must have an 'original' signature from the company representative and must be addressed to the Visa Office, Department of State. Do NOT sign the leter yourself, as the Visa Office will NOT accept letters signed by the visa applicant.
5) A typed nonimmigrant visa application form, OF-156, with one 'official' passport-size photograph for each applicant, regardless of age. The photographs must be attached to the respective forms in the designated place. You should spell out the month of birth (i.e., write "March 27th," NOT 1/2 or 2/1). Incomplete or improperly filled out applications will be returned without visas.
6) If the spouse and/or dependent children are applying for visas separately from the 'principal' visa holder, certified copies of the principal visa holders valid visa and valid I-94 (front and back) must be submitted in addition to all other requirements (this is for H4 to H4 revalidation).
7) There is a required non-refundable fee for each machine readable visa. Payment may be made by bank draft, money order, or corporate check made to the order of the "U.S. Department of State." Cash and personal checks are NOT accepted. In addition, certain nationalities must also pay a "reciprocity fee." The amount of these fees vary from country to country. In the case of multiple applicants, you can combine all the fees into one payment check.
Current processing times for visa revalidations is 6-8 weeks.
Postal Service
US Department of State/Visa,
P. O. Box 952099,
St. Louis, MO63195-2099
Fax: 202-663-1608
Courier Service
US Department of State/Visa (Box 2099),
1005 ConventionPlaza,
St. Louis, MO63101-1200
Fax: 202-663-1608
What if the Information on my Revalidated visa is 'incorrect'?
if you revalidate your visa and it is returned to you with incorrect information on it by Visa Services, you can return it to for correction.
You will need to send;
your passport with the revalidated visa,
a letter explaining what needs to be corrected,
the documents substantiating the correct information,
a current photograph.
There is NO fee for a correction on visas revalidated by Visa Services.
You should send your request by U.S. mail or commercial courier, and make sure to write "CORRECTION" on the front of the envelope for quicker service to:
CA/VO/P/D - Visa Services
U.S. Department of State
2401 "E" Street, NW (SA-1, L-703)
Washington, D.C.20522-0106
You should expect a turnaround of approximately five business days. If you make no provisions for the return of your documents, they will be returned by ordinary surface mail.
H1B Visa Transfer
- how to transfer a current H1B visa to a new job / employer.
Current H1B visa holders can transfer their visa and start work for a new employer as soon as an H1B transfer petition is 'submitted' to the USCIS by the new employer (sponsor company). The applicant does NOT have to wait until the Transfer is issued.
H1B transfers are Unlimited and are NOT counted towards the regular H1B quota (cap).
this means H1B transfers can be filed at any time of the year.
The H1B transfer bill approved in the senate and House (bill S.2045) now has rules that enable valid H1B visa holders to change jobs upon the filing of a new petition by the new employer as long as the individual is in lawful status at the time of filing and has not engaged in any unauthorized employment since his or her last lawful admission.
Under the H1B portability rules of the American Competitiveness in the 21st Century Act (AC21), an H1B visa holder may transfer to start work (a new H1B job) with a new employer, provided that the new US employer follows the procedures to file an H1B transfer visa application on behalf of the worker.
Transfers allow individuals who have filed for adjustment of status and whose cases have been pending for 180 days or more to change jobs or employers without affecting the validity of the I-140 or underlying labor certification, as long as the new job is in the same or a similar occupational classification to the job in the original H1B visa petition and labor certification.
During the H1B transfer procedure, the following documents may be required:
• Up to 3 months latest pay stubs.
• Copy of your existing H1B approval.
• Passport copies.
• Copies of I-94 records.
• Copy of Social Security Card.
• Latest Resume.
• Copy of existing valid visa.
• Copy of all your Diploma/Degrees.
How long does the H1B transfer procedure take ?
Once an H1B visa transfer application is submitted with the USCIS for processing, the procedure (processing) normally takes 4-8weeks, but in some cases it can take more time. The time varies for each petition depending upon the location of employment, and where the appropriate USCIS visa processing office is located, and what their current processing times are.
Holding Multiple H1B Visas with Different H1B Sponsors (Employers)
According to the regulations, if the H1B visa holder (alien) is to perform services for more than one employer, each employer must file a separate petition with the ServiceCenter having jurisdiction over the area where the alien will perform services or receive training, unless an established agent files the petition.
In spite of the Department of Labor?s earlier pronouncement that different employing entities could be treated as joint employers, the USCIS has stated that it does not recognize the concept of ?co-employers? in employee leasing agreements.
When employers share responsibilities for the employee, one of the firms must designate itself as the employer, or, if the alien has two employers, each must file a petition.
The USCIS has consistently stated that neither the new employer nor the beneficiary need take action with the USCIS if the beneficiary switches employers, as long as multiple petitions were approved and the petition for the current employer remains valid.
For example, where an alien had two petitions approved on his or her behalf, elected to take up employment with Employer A, but later became dissatisfied and switched to Employer B, no new or amended petition was required. Similarly, the Service has advised that, presuming both employers have petitions approved, an alien could take a 6-8 month leave of absence from Employer A to work for Employer B, and then resume working for Employer A without filing a new H1B visa petition. Nor was a new petition required when the beneficiary had switched back and forth between a parent company and its subsidiary, where both had approved H1B petitions.
In another case, the fact that the beneficiary was outside of the United States when the petition for Employer B was approved but was readmitted on the visa issued for Employer A (by whom the alien was at that time still employed), was not deemed a relevant factor.
It is important to note that in each of the above cases, the original H1B petition had not been revoked. Under the regulations, however, a petitioner is supposed to promptly notify USCIS when the beneficiary is no longer employed by the petitioner, at which time USCIS may then revoke the petition. While the present rule provides for revocation on notice under these circumstances, the proposed rule would make revocation automatic when the USCIS is notified that the beneficiary is no longer employed by the petitioner.
How to Track the Status of a Filed H1B Visa Application
The H1B Visa Status Tracking System is for H1B applicants or H1B employers who have already completed and filed their H1B visa petition with the US Immigration Bureau (USCIS)
H1B visa stamping in the passport is needed for a foreign national to enter/re-enter the United States as an H1B worker. In other words, visa stamped on your passport is the authorization to enter into USA. For a U.S. Consulate to issue H1B visa stamp in your passport, the passport must be valid for 6 months after the expiration of a US visa.
It is not possible to obtain an H1B visa stamp within the USA.
All H1B visa stamps must be issued by the U.S. consulate outside the USA. To be more precise, H1B visa stamping must be obtained from the US consulate situated in your home country.
Prior to visa stamping, one must under go medical examination.
Also, those who are applying for H1B visa stamping must appear for an interview at the US Consulate.
information For H1B Employers (Sponsors)
The H1B visa enables foreign skilled workers to stay in the US for up to six years and apply for permanent residency in the interim. Because this visa permits a foreign national to have "dual intent", there is no conflict when an H1B temporary worker applies for a green card.
As part of the H1B petition, the employing company, serving as the petitioner of the H1B visa petition, must make a number of attestations. It is important that the employer familiarize itself with the statements it?s agreeing to so as to avoid future inadvertent noncompliance and possible penalties.
Part of the H-1B process involves submitting a Labor Condition Application (LCA) to the Department of Labor (Form ETA 9035). The LCA contains a number of important attestations that the employer agrees to. They are the following:
The actual versus the prevailing wage: Here, the actual wage is the wage that the company?s compensation department has set for the position for all employees with similar experience and skill. Usually, the prevailing wage is a figure provided by the state?s employment agency which it thinks is an accurate reflection of what other employers are paying for that position. The employer must agree to pay the higher of the two wages.
Working conditions: The employer must state that employing the foreign national will not adversely affect the working conditions of other similarly employed workers. Therefore, an employer who increased working hours and decreased vacation periods as a result of hiring foreign nationals would not be in compliance with this attestation.
Strikes, lockouts, and work stoppages: If any of these develop after the Labor Condition Application is filed with the Department of Labor, the petitioning employer must inform the Department of Labor.
Notice regarding the LCA: employers must provide notice of the LCA to its employees through posting the LCA on the premises for at least ten business days. The posting must be done in two different conspicuous locations.
Public access file: H1B regulations require that the employer maintain a public access file which is to be made available for public inspection. The file must contain documentation showing that the employer is complying with the aforementioned requirements.
Additional requirements for H1B dependent employers. Employers are considered to be H1B dependent if they have less than 25 workers and more than 7 H1B workers; between 26 to 50 workers and more than 12 H1B workers; or more than 50 workers with 15% or more of them being H-1B foreign nationals. In this case, H1B dependent employer must fulfill 2 additional requirements.
Displacement of US workers: An H1B dependent employer must attest that by hiring a H1B worker, it is not displacing any US worker for a similar position within 90 days before or after filing a H1B petition.
Recruitment efforts: The H1B dependent employer must also attest to making good faith attempts to recruit US workers and offering prevailing wages for this position. When hiring an H1B worker, it is important for employers to recognize the attendant responsibilities that they must shoulder. Although the requirements are not excessively burdensome, the employer is required to maintain some paperwork to demonstrate its compliance with the law. A clear understanding and fulfillment of these requirements will minimize possible civil penalties and ensure that the employer will be permitted to petition for future H1B workers.
PAYMENT OF H1B EMPLOYEES
A ?benched? employee, is someone who is currently between work projects, and typically refers to someone who is sponsored/employed by a consulting firm/agency who then sub-contracts their services out to an 'end' client.
In the eyes of the law, the company who petitioned the USCIS to grant the H1B Visa is considered the 'employer'. the company that 'sponsors' the employees Visa.
1) When a foreign national is benched because there is no immediate work available, they are still entitled to receive compensation.
2) The employer is bound to pay the foreign national as attested on the labor condition application. The employer may NOT withhold payment claiming that the employee is not entitled to it because the employee did not work.
3) Should the employer fail to pay the H1B employee, the employer will be in violation of 'federal regulations' and will have to pay any monies owed in salary.
Also, the employer risks incurring possible penalties for failure to comply with the employer requirements of H1B visa sponsorship.
4) When an H1B employee takes time off from working for personal reasons (e.g. vacation / illness / leave of absence etc), generally, the employer does NOT have to compensate the employee for this temporary period of time.
However, the employer will have to provide compensation if it was contractually agreed OR if they 'normally' do and normally make this available to its employees.
5) Employers are also bound to pay their H1B employees even when the employer experiences a temporary shut down in its operations.
i.e. If the employer shuts down the company for a period of 10 days during the holiday season, it must continue to pay its H1B employees during this period, even if the employer is not compensating the US workers.
If you have any issues regarding employer obligations... You should contact your local Department of Labor (DOL)
As discussed above, employers accept important responsibilities when choosing to sponsor a foreign national on a H1B. Employers should be careful to be aware of the requirements imposed on them to ensure that they are in compliance. Doing so minimizes potential violations and ensures that the employer can continue participating in the H1B visa program.
TOP 2 ISSUES TO CONSIDER WHEN HIRING A FOREIGN NATIONAL.
1. When will the foreign national be able to work?
The foreign national may or may not be able to start work immediately. For certain visas like the TN visa, obtaining a visa authorizing work is not as time consuming as other visas and can be accomplished very quickly. However, other visas like the O-1 require a processing time of at least a few months. Filing for H1B visas is not available year-round because of the cap on the total number available each year. These potential delays must be factored in a company?s staffing plans especially with time-sensitive projects.
2. The foreign national will have a temporary period of work authorization:
A foreign national will have a limited temporary period of time to work in the USA after the expiration of his current visa status, he will have to seek an extension if available, change to a different temporary status, have applied to adjust his status to permanent residency, or leave the country.
H1B LAWS THAT CAN AFFECT AN EMPLOYERS HIRING DECISIONS
H1B Visa Cap:
The H1B cap is the annual quota of visas available. The annual quota is currently set at 65,000 plus an additional 20,000 ADE quota. The cap does not apply to H1B transfers or cap-exempt positions
Exemption from the H1B Cap:
H1B applicants who will be employed at nonprofit research, university, or government institutions will not be counted toward the cap. Therefore, hiring departments at these organizations no longer need to be concerned about the limited availability of H1B's. Timing the submission of an H1B petition to the USCIS will also be less of a factor.
Portability of H1B visa Status:
Under previous H1B regulations, an H1B employee seeking to work for another employer could not begin working for that employer until the USCIS processed and approved the transfer petition. This created significant delay for the transferring employer because it could take 3 months before the employee could actually commence work.
The new regulations permit the H1B employee to begin working for the new employer upon the filing of the transfer H1B petition with the USCIS. H1B applicants who currently have a transfer petition pending with the USCIS can begin working for the new employer immediately. These changes will significantly enhance hiring decisions and facilitate bringing in much needed skills for time-sensitive projects. H1B visa employees can utilize this provision so long as he or she was in lawful status at the time of filing the H1B petition and provided that the employee has not engaged in any unauthorized employment since last entering the USA.
Extensions beyond Six Years for H1B visa holders who are awaiting Green Cards:
H1B holders will be permitted to apply for one-year extensions beyond the six-year maximum provided that they have either filed an I-140 immigration application or an I-485 adjustment of status application AND that one year or more has passed since the filing of labor certification or the I-140. This important development enables H1B workers who have reached the six year maximum to stay and continue working in the US while waiting for their green cards. Prior to this, such individuals were forced to leave the US if they had not received their green card in time.
The USCIS has an online automated system for quickly checking and tracking the status of a filed H1B application which can be used for checking the case status of pending immigrant and non-immigrant visa applications, that are being adjudicated at one of the Service Centers.
