As the H-1B Visa registration window approaches in the United States, it’s essential to stay informed about the latest developments from the Department of Homeland Security (DHS). These modifications, encompassing alterations to the lottery mechanism, online submission procedures, and USCIS petition fees, are set to take effect prior to the commencement of the H-1B lottery period from March 6 to March 22, 2024.
In addition to highlighting these revisions, we aim to provide a user-friendly overview of the entire H-1B visa application process, aimed at facilitating access for individuals pursuing opportunities in the United States.
H-1B Visa Lottery Amendments
In response to the Biden administration’s Proposed Rule on October 23, 2023, the DHS has introduced a Final Rule titled “Improving the H-1B Registration Selection Process and Program Integrity.” This rule aims to modernize the H-1B lottery registration process through several key provisions:
Beneficiary-Centric Selection: The new rule restricts each beneficiary to a single selection per lottery, ensuring equitable treatment throughout the process.
Start Date Flexibility: Employers now have the option to select start dates post-October 1, offering enhanced flexibility for specific cap-subject H-1B petitions.
Enhanced Integrity Measures: The Final Rule introduces requirements for valid passport/travel document information and grants increased authority to the DHS to address fraudulent statements on petitions, registrations, or LCAs.
FY 2025 H-1B Cap Registration
Employers are mandated to complete an online registration form for each beneficiary, accompanied by a $10 registration fee. It’s noteworthy that there will be no H-1B cap on petitions filed by institutions of higher education or related nonprofit entities.
Understanding the H-1B Visa
The H-1B visa is a non-immigrant visa category in the United States that enables employers to temporarily employ foreign workers in specialty occupations. These occupations typically demand specialized knowledge and a bachelor’s degree or higher.
Common fields for H-1B visa holders encompass technology, engineering, medicine, and academia. Securing an H-1B visa involves several steps, ranging from securing a sponsoring employer to completing the application process.
Now, let’s delve into the sequential steps necessary to navigate the H-1B visa application process effectively.
H-1B Visa Application Process
Below is a comprehensive step-by-step guide to help navigate through the intricacies of obtaining an H-1B visa:
Step 1: Secure a Sponsor
The initial step involves securing a sponsor, typically your employer. If you’re currently in the US on a student visa, explore the possibility of sponsorship with your current employer. Alternatively, seek guidance from an immigration lawyer to explore other avenues.
Step 2: Employer Files Labor Condition Application (LCA)
Before hiring you, your employer must file a Labor Condition Application (LCA) with the US Department of Labor (DOL), ensuring compliance with specific regulations, including offering the prevailing wage and safeguarding US worker opportunities.
Step 3: Determining the Prevailing Wage
The prevailing wage ensures fair compensation, aligned with individuals performing similar roles in your area. This benchmark is validated by the state employment agency and must be met by your employer.
Finding the Prevailing Wage:
National Prevailing Wage and Center (NPWC): This option offers “safe harbor status,” minimizing legal challenges related to underpayment.
Independent Wage Survey: A credible survey can determine the prevailing wage.
Other Sources: Utilizing sources besides the NPWC is generally discouraged due to potential legal risks.
Step 4: Submitting Form ETA-9035
Once the prevailing wage is determined, your employer electronically submits the LCA through Form ETA-9035 using the Foreign Labor Application Gateway (FLAG) system within six months before your employment start date.
Step 5: Employer Submits Form I-129
With the approved LCA, your employer files the H-1B petition using Form I-129, detailing your position, salary, duties, and required qualifications. Supporting documents like your resume, qualifications, and a letter of support are also attached.
Step 6: Application Completion and Next Steps
Upon Form I-129 approval, you receive Form I-797 Notice of Action. The subsequent steps differ based on your location:
If You’re Already in the US:
Your status automatically transitions to H-1B. Avoid employment activities until the transition is complete.
To obtain a visa stamp, submit a DS-160 and schedule an appointment within 90 days before your start date. Alternatively, opt for consular processing, requiring travel to your home country for visa stamping.
If You’re Outside the US:
Submit DS-160 and schedule an interview at a US embassy or consulate in your home country.
After I-129 approval, submit a nonimmigrant visa application at the embassy or consulate.
Upon a successful interview and visa issuance, travel to the US becomes feasible.
Step 7: Entering the US
Entry is permitted with the visa, subject to approval at the port of entry. Remember to enter the US before the visa expiration date and obtain permission from US Customs and Border Protection (CBP) for entry as an H-1B visa holder.
Step 8: Maintaining Your Status (Optional)
Familiarize yourself with the requirements to maintain your H-1B status, including informing USCIS of any employment changes.
With this comprehensive guide, navigating the H-1B visa application process becomes more accessible, facilitating opportunities for individuals aspiring to pursue careers in the United States.