Foreign nationals seeking to enter the United States can do so in a variety of ways depending on their personal situation, work history, and circumstances. One of the most common methods of obtaining a temporary stay in the United States is via employment-based immigration, and within this category, the H-1B visa is a frequent choice. However, only certain categories of foreign nationals will qualify for the H-1B visa.
The H-1B Visa
In order to qualify for an H-1B visa, foreign nationals must be seeking to work in the United States for an extended period of time. This visa is for those with special skills, usually falling within the IT or medicine field. Applicants who pursue this visa should be prepared and informed, working with an immigration attorney is the best avenue to take. Read on to learn about the process and requirements this visa has.
H-1B Visa Requirements
Anyone who is beginning the process of acquiring an H-1B visa must have an employee-employer relationship with a US employer who is willing to petition on the applicant’s behalf. Additionally, the foreign national’s job must qualify as a specialty occupation. In order to prove this, the position must require at least a bachelor’s degree and the foreign national’s compensation must equal at least the prevailing wage for that position.
If a bachelor’s degree in the field is not available or the applicant does not have one, specialty knowledge can still be proven by providing supporting documentation that the job is so complex that the knowledge required to perform the tasks of the job is typically associated with the level of knowledge needed to attain a bachelor’s degree. It is important to note that the prospective non-immigrant does not file the petition on their own behalf; instead, employer petitions for the employee, so it will be important for an employee to work together with the employer to provide this evidence.
Who Is Eligible?
In order to be eligible to apply for and receive an H-1B visa, a foreign national must fit into one of three categories: someone who performs services in specialty occupations engages in cooperative research projects administered by the Department of Defense or is a fashion model.
The H-1B Visa Application Process
The process for applying for an H-1B is a joint effort between the employee (who must provide certain documentation) and the employer (who is filing the petition on behalf of the employee). Form I-129 Petition for a Non-immigrant Worker is the place to begin; while this form is filled out, signed, and paid for according to the appropriate filing fee, the employee will likely need to gather personal documentation for submission.
This personal documentation may include any documents that prove eligibility: diplomas, transcripts, work history, paystubs, and so forth. These will be used to prove specialized knowledge as well as skill in the offered position. The typical filing fee for the petition is $460, but this amount may change based on any needed biometrics.
How Long Does It Take To Get Approved?
On average, USCIS reviews petitions within six months, though some may receive a determination in as little as one month. Employers who are willing to pay extra can submit additional funds to place the petition into Premium Processing (at a typical cost of $1440, though this number may vary as regulations change). A Premium Processed I-129 petition guarantees a determination within 15 days, and many employers will choose to pay for this if the employee has a certain start date for the position or if they do not have work authorization past a certain date.
In some situations, a determination on the H-1B petition may take longer than the average. In this case, the petitioner is provided with a receipt number, which can be used to track that case or get in contact with USCIS regarding the status of the petition.
Request For Evidence
One other factor that may delay the H-1B petition decision is any Requests for Evidence (RFEs). A Request for Evidence may occur on an application that does not provide sufficient detail to prove the employee’s eligibility or when the reviewing officer requires further information on a presented point in order to make a decision. For example, when demonstrating specialty knowledge, a person who tries to prove eligibility, without a bachelor’s degree, may receive an RFE requesting proof that the listed skills and job duties equate to a bachelor’s degree.
If this happens, USCIS will allow a short window of time in which to provide this new evidence and answer any of the questions that the reviewing officer asked. Taking the time to deal with an RFE can slow the overall process, but an RFE does not mean that a petition has been denied. Some petitions will be placed in a lottery and chosen for review and potential approval at random if too many H-1Bs have been submitted in one year.
Reach Out To A Professional Immigration Attorney
Understanding what information to provide for a petition, working smoothly with an employer/employee and handling potential RFEs can be daunting for those seeking an H-1B visa. That is why it is critical to reach out to an experienced immigration attorney like Kermit A. Monge, who can ensure that the process is smooth and the petition is put together comprehensively and convincingly, giving you the best chance of being approved for an H-1B visa. Reach out today by phone at (703) 273-5500 or send in a request for consultation online.