Critical Considerations for Securing H-1B Employment Visas
Securing an H-1B employment visa can be a transformative step for foreign professionals seeking to work in the United States. However, obtaining an H-1B visa can be complicated, and potential applicants commonly feel overwhelmed by the legal requirements and uncertainties involved in the process.
At PVB Law LLC, we understand how vital it is for skilled professionals to seize opportunities for career advancement in the U.S., and we aim to make the process as smooth as possible for our clients in Augusta and Atlanta, Georgia.
As you work toward securing an H-1B visa, there are several key factors to keep in mind, and we’re here to support you throughout the process. If you’re seeking assistance from an experienced employment visa attorney, reach out to us at PVB Law LLC today.
What Is an H-1B Visa?
An H-1B visa allows U.S. employers to hire foreign workers in specialty occupations that require particular knowledge and a bachelor’s degree or its equivalent. The positions typically involve jobs in fields such as technology, engineering, medicine, finance, and academia.
The H-1B visa is a temporary, non-immigrant visa that allows professionals to work in the U.S. for up to three years, with the possibility of an extension for up to six years. It’s an essential pathway for employers seeking to fill roles that cannot be easily filled by U.S. workers.
While securing an H-1B visa is an excellent opportunity, it comes with its challenges. Below, we discuss some of the critical factors that can help you or your employer successfully manage the application process.
Eligibility Requirements for an H-1B Visa
The first hurdle to consider when applying for an H-1B visa is determining whether you meet the basic eligibility criteria. To qualify for an H-1B visa, you must:
Have a job offer from a U.S. employer for a specialty occupation.
Possess a bachelor’s degree or higher (or its equivalent) in the relevant field.
The role must require specific knowledge, typically at the bachelor’s degree or higher level.
“Specialty occupation” refers to a job that requires the theoretical and practical application of highly specialized knowledge, such as positions in science, engineering, and business. A job title alone isn’t sufficient—an employer must prove that the position fits the criteria.
Your educational qualifications and experience will also need to match the job requirements. If your degree is from a non-U.S. institution, it may need to be evaluated to make sure that it meets U.S. equivalency standards.
Employer's Part in the H-1B Process
As a foreign worker seeking an H-1B visa, your employer plays a central role in the application process. Your employer is responsible for filing the petition on your behalf and providing the necessary documentation to demonstrate that the position and your qualifications meet the H-1B requirements.
Your employer must also attest that they will pay you the prevailing wage for the role as determined by the Department of Labor. This is to prevent employers from exploiting foreign workers by paying them less than U.S. workers in similar positions.
The employer’s responsibility extends beyond just submitting forms. They must also comply with the rules set out by U.S. immigration and labor authorities.
Key Deadlines and Filing Procedures
One of the most critical considerations in the H-1B application process is the strict timeline for filing petitions. The important points to keep in mind include the following.
Filing season: The U.S. Citizenship and Immigration Services (USCIS) typically accepts H-1B petitions starting on April 1 each year for the fiscal year beginning on October 1.
Cap-subject and cap-exempt petitions: The H-1B visa program is subject to an annual cap. As of 2024, the cap is set at 85,000 visas, with 65,000 available for general applicants and 20,000 for individuals with a master’s degree or higher from a U.S. institution. There are also exemptions for certain employers, such as those affiliated with universities or nonprofit organizations.
Lottery system: Due to high demand, USCIS often holds a lottery to randomly select petitions once the cap is reached. This means that even if you submit your petition on time, there is no assured selection.
Timely submission is key, and working with an employment visa attorney can help make sure your application is submitted correctly and on time.
Supporting Documents Required for an H-1B Petition
When filing an H-1B petition, both the employer and the employee must submit a series of documents. These documents are required and serve as the basis for your application. The documents you must provide include:
Labor Condition Application (LCA): Your employer must file this application with the Department of Labor, which attests to the wage and working conditions.
Proof of education and qualifications: This includes transcripts, diplomas, and other documentation that demonstrate that you have the necessary education and experience for the position.
Job description and employer’s statement: Your employer must describe the position in detail, outlining the required qualifications and why the job qualifies as a specialty occupation.
Passport copies and personal identification: You must provide copies of their passport, any prior visas, and other relevant identification documents.
Given the amount of documentation required and the nuances involved with applying, it's wise to consult with an experienced employment visa attorney who can guide you through the application process.
Maintaining Status While on an H-1B Visa
Once you’ve successfully obtained your H-1B visa and are working in the U.S., maintaining your status is critical. There are several important considerations for maintaining compliance:
Employment changes: If you change employers or your job responsibilities, you may need to file a new H-1B petition. The same terms apply if there are significant changes to your job title or duties.
Duration of stay: The H-1B visa is valid for a maximum of six years. You may be eligible for extensions, but certain conditions must be met, and the process can be more complicated as you approach the six-year mark.
Dependents: If you have a spouse or children under 21, they may be eligible for H-4 status, which allows them to live in the U.S. with you, though they may not automatically be authorized to work.
It’s essential to remain aware of your visa status and comply with all U.S. immigration laws to avoid jeopardizing your ability to stay in the U.S.
Common Pitfalls to Avoid During the H-1B Process
While many applicants successfully secure an H-1B visa, certain common mistakes can lead to potential delays or denials. Some of the pitfalls you should avoid falling into include the following:
Incomplete or incorrect documentation: The slightest mistake in the paperwork can cause delays. Make sure all documents are complete and accurate before submission.
Failure to meet eligibility: Make sure your job qualifies as a specialty occupation and that you meet the necessary educational and professional qualifications. An employment visa attorney can help you determine this.
Missed deadlines: H-1B petition submission deadlines are non-negotiable. Missing the deadline can disqualify you for the year, so be proactive in your application process.
Contact a Skilled Employment Visa Attorney Today
Securing an H-1B employment visa can be challenging, but with the proper guidance, it doesn’t have to be. At PVB Law LLC, we’re dedicated to guiding clients in Augusta, Georgia, and Atlanta, Georgia, through the H-1B process. If you need assistance with your H-1B petition or have any questions about the process, reach out to us today to schedule a consultation.