H-1B Visas: A Practical Guide for Startups and Small Business Owners

H-1B Visas: A Practical Guide for Startups and Small Business Owners

RVJ
RVJ
Table of Contents
Table of Contents

Your months’ search for the perfect candidate has finally concluded, and you have found the right person to join your company. The only issue is that this candidate is not a resident of the United States.

Do not fret, and certainly do not let go of the ideal candidate you have found. Sponsoring their H-1B visa could just be the solution you need. There are thousands of American businesses that hire numerous workers from across the world by applying for H-1B visas for those international candidates. As a startup owner, if you are wondering what it is, who applies for it, and the related details, we have compiled this H-1B visa guide to let you know all that you need to know about the H-1B visa.

H-1B Visas: A Practical Guide for Startups and Small Business Owners
H-1B Visas: A Practical Guide for Startups and Small Business Owners

Here’s what we shall learn:

What is an H-1B Visa?

Developed in 1990, the H-1B visa program allows U.S. companies to hire qualified noncitizen or non-U.S. workers by sponsoring visas that permit them to work and live in the country. Individuals with a valid H-1B visa are permitted to work in the U.S. for three years with a great possibility of further extension of up to three years.

Aspiring job applicants who wish to work in American companies need legal authorization, which an H-1B visa offers them. If you offer employment to them, then as an employer, you can apply for the H-1B visa through the USCIS – the United States Citizenship and Immigration Services.

While a majority of applicants are students who look to pursue higher education in American undergraduate or graduate schools, there is a big chunk of people who have been hired by American companies who also apply for H-1B.

As an employer, you would need to present a strong case in order to obtain an H-1B visa for your chosen candidate. You can take support of growth charts and business projections to depict how the international candidate’s skills are specialized and are a huge requirement for your business. Doing so adds weight to your application and your chances of obtaining the visa increase.

Who applies, and who needs an H-1B visa?

Who applies?

It is a common thought that aspiring candidates will have to apply for a visa to work in the US; however, that is not true. All businesses that look to hire foreign candidates must apply for the visa, which would be awarded to the worker who has been hired.  

The process of applying involves filling out forms with all the information and credentials of the prospective employee. You will have to collect all the required information from them and enter a lottery. A lottery creates opportunities to get chosen for being allotted the visa. Let’s learn more about the lottery in the next section.

Who needs it?

All non-U.S. students and workers who wish to study or work in the US must apply for the H-1B visa. As we have learned in the previous paragraph, it will be the hiring company that applies, but the visa is granted to the candidate it hires.

How to apply for the H1-B visa?

The general procedure to apply for the visa for your new incoming employee would be as follows:

  • Ensure that the new candidate qualifies for the role and satisfies all the visa requirements
  • File a petition with the U.S. government and place the petition to get into the lottery
  • Wait till you receive any intimation from the government.

The visa filing process begins each year in the first week of April. So, you will have to be quick and prepared before the window opens. It is highly recommended you organize all your documents and important papers well ahead of the opening date.

As an employer filing for the H-1B visa petitions, your duties will also include the following:

H-1B VISA APPLICATION PROCESS

Informing the Employees

Filing the Labor Condition Application

Filing Form I-129

Check Application Status

Informing your employees

Let your employees know that you are preparing to file the petition and get them to submit all their documents with you for making an application. This would help expedite the process.

Process of filing the Labor Condition Application

This is an application a prospective employer files on behalf of the foreign worker who is required to apply for a non-immigrant work visa. The employers must receive approval on the LCA from the US Department of Labor before hiring the foreign worker.

You shall need the ETA form 9035 to file the Labor Condition Application to the Department of Labor Employment and Traning Administration or DOLETA. You or your legal representatives can submit this easily by visiting the website: https://icert.doleta.gov/, which is an online system that accepts the forms.

Also, ensure that your application is devoid of any errors and furnishes all the information in the correct format. This will guarantee a hassle-free and expedited process hereon. After submitting the application, you can wait for a response from the government, which would typically take seven working days.

Filing Form I-129

After the approval of your Labor Condition Application, you shall need to file Form I-129 at the USCIS office. In this form, a petitioner files on behalf of a non-immigrant worker seeking temporary entry to the United States for the purpose of performing services, performing labor, or receiving training. It includes the following types:

H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, or R-1 non-immigrant worker.

This form can be used for a lot of other purposes which include the tasks listed here:

  • Change employment-based non-immigration status
  • Obtain E visas (which are E-1, E-2, and E-3) for the temporary workers
  • Provides extension of the authorized duration of stay as an employment-based nonimmigrant
  • Obtain H-1B visas for especially occupations
  • Obtain H-1AH-2A, H-2B, and H-3 Visa
  • Obtain L Visas (L-1A and L-1B) for Temporary Workers
  • Obtain O-1 Visa, Individuals with Extraordinary Ability or Achievement
  • Obtain P-1A Visa
  • Obtain P-1B Visa
  • Obtain P-2 and P-3 Visa
  • Obtain Q Visa, Cultural Exchange
  • Obtain R-1 Visa, Temporary non-immigrant Religious Workers

Check Application Status

The USCIS facilitates you with a system that lets you check the status of your application. You can enter the receipt number and click ‘Check Status’ on the page.

What are the Documents required for H-1B visa?

We know that the process of acquiring an H-1B visa is lengthy and requires various documents at each stage of the application. The following list shall help you guide in the procedure:

Documents for Filing the H-1B Petition

You shall need to prepare a set of the following documents for this stage:

  • I-129 Petition
  • Labor Condition Application Approval
  • Supporting evidence, including the following:

1. Copy of resume

2. Copy of offer letter with complete job description

3. Proof of the degree

4. Other evidence relevant to the case

Supplementary Documents for H-1B Visa process

The supplementary documents that are required are as given:

  • Proof of prior employment
  • A copy of the passport
  • Proof of current qualifications, certifications or achievements
  • Certification Letter from registrar stating completion of educational
  • Copy of academic degrees
  • A copy of transcripts
  • Letter from the current employer

Visa Documents for Premium Processing

You must submit an I-907 Request for Premium Processing along with the necessary cost if you and your attorney decide that premium processing would be advantageous for your H-1B circumstance.

Documents for H-1B Stamping

  • Appointment letter
  • Original H-1B visa approval notice (Form I-797)
  • Letter for the H-1B visa application provided by your employer
  • Form I-129
  • DS-160 barcode confirmation
  • H classification supplement to form I-129
  • Salary slips for at least the last three months
  • Request for working conditions for H-1B and H-1B1 non-immigrants
  • Employment verification letter
  • Bank statements (last three months)

Supporting Documents

  • Job offer letter
  • A copy of the resume
  • Employer’s description
  • Form I-797 A, B, or C
  • Notification of H-1B approval from your former employer (if applicable)

Educational Documents for the H-1B Visa Process

The academic achievements of the employee are crucial for the visa process. Here is what is required:

  • Official transcripts from the employee’s universities or colleges
  • Diploma or official diploma certificates, or both
  • Original I-20 forms, in case of a U.S. degree
  • Official transcripts from any other certificates
  • OPT or EAD card, if applicable

U.S. Government Documents

Based on the duration of the stay and the existing status of the immigrant, the following documents will be required:

  • 1040s tax returns
  • W2 tax forms from at least two previous years
  • Driver’s license
  • Social security card
  • Client letter

Personal Documents of the Employee

A copy of the worker’s utility bills and rental agreement is needed while getting your H-1B visa stamped if they currently reside in the US. Contact an immigration attorney or other immigration professional if you are unsure of which documents are required. The personal documents depend on the worker’s current situation.

What are the LCA Attestations Employers need to know?

To obtain an LCA, the employer must make the four attestations that are integral to moving your application forward. These attestations are given as follows:

  1. According to the employee's geographic location, the H-1B employee will receive the prevailing wage for the position.
  2. Employees who currently work for the employer will not be negatively affected by the employment of the H-1B employee.
  3. Currently-employed employees have been informed that the employer intends to hire an H-1B employee.
  4. There is no strike or lockdown at the location where the H-1B employee will be working.

As a result, the LCA aims to protect the current workers' employment. You can inform the USCIS that your employment will benefit the U.S. economy rather than diminish it by attesting that it will not subvert or replace current employees' work.

Cost of H-1B visa

We are aware that there are a lot of business expenses and operating expenses that the companies need to keep a tab of. While you are looking forward to hiring a foreign candidate and applying for a visa for them, it would be wise to know the costs involved.

In a process like the H-1B visa application, there are various kinds of fees that you may encounter. Let’s see a break-up of these costs.

Fees associated with H-1B visa application

  • H-1B Registration Fee ($10)

  • American Competitiveness and Workforce Improvement Act of 1998 Fee ($750-$1500)

  • Base filing fee ($460)

  • Public Law 114-113 fee ($4000)

  • Fraud prevention fee ($50)

  • Premium processing fee ($1410) (optional)

Usually, it is the employers who take care of all the payments and fees associated with the H-1B visa application. Along with the application, the employers must also submit all the hiring details to the USCIS, such as salary, job profile, and other relevant information pertaining to the joining of the new candidate.

The employee may opt to pay the premium processing fee, although it is completely optional and does not hinder the way the application moves ahead.

What is the H-1B Visa Quota?

Every year, the USCIS sets apart an 85,000 quota for the H-1B applications, of which 20,000 are reserved for candidates or applicants who possess advanced degrees from US institutions. The 65,000 positions that remain are for the applicants who do not meet the criteria of holding an advanced degree from US institutions.

Common Mistakes While Filing H-1B Application

This section takes us through some of the common mistakes you should steer clear of while making the H-1B visa application. Let’s take a look.

Common Mistakes while Filing H-1B visa Application

  • Selecting an incorrect start date in Form I-129

  • Selecting the Wrong Type of Account

  • Making Duplicate Entries

  • Incomplete Job Description

  • LCA Delays

  • Untimely Filing

  • Selecting the Wrong Service Center

  • Unacceptable Delivery Method

Selecting an incorrect start date in Form I-129

This is easily one of the top reasons why your application could get rejected. Therefore, being mindful is the key here. Consult with your attorneys and confirm the dates, wages, and other details that need to go into the application (Form I-129).

Selecting the Wrong Type of Account

This is one of the most common errors the applicants make, and therefore, it is important to be mindful at this stage. When you are attempting to create an account, ensure it is correct. Here are the three types of accounts you should know of so that you can eliminate any chances of committing this mistake:

  • Applicant or Petitioner or Requestor Account

This is an account for making requests, petitions, and preparing applications. This is NOT the correct type of account if you want to complete H-1B registrations.

  • Attorney or Representative Account

This is the account used by the attorneys or legal reps to file petitions on behalf of their clients. This could be used to submit a Notice of Appearance as Attorney.

  • Registrant Account

Being a petitioner who wants to initiate the H-1B visa process, this is the account type you need to start.

Making Duplicate Entries

As a rule, there could be only one registration per beneficiary. Therefore, as an employer, you must ensure that you do not make a duplicate entry for any of your employees.

However, there may be cases when a subsidiary of the company requires a second petition; in such a case, it must be clearly stated why the second petition is made. Discuss the situation with your legal department to ensure you do not receive an RFE – Request for Evidence, a lack of which may lead to the USCIS canceling your application.

Incomplete Job Description

A qualified H-1B visa lawyer could be your go-to person in such a situation. They shall review, analyze, and correct (if necessary) the application by assessing thoroughly the employee information provided.

LCA Delays due to lack of pre-verification

Pre-verification is done so that the USCIS portal or the iCert visa portal recognizes the company or the employer’s FEIN – Federal Employer Identification Number. If the verification has not been done, the portal may refuse to recognize the employer, thus, resulting in the rejection of the application.

Untimely Filing

The USCIS center considers an application timely when it reaches them in time. You must remember that your application will first reach the Post Office from where the USCIS collects it. Hence, it is advisable to respect the timeframe provided. If there’s a delay in filing beyond the date issued by the USCIS, this may lead to a delay in further processing of the application as well.

Selecting the Wrong Service Center

There is a service center fixed for each petition. So, be sure to send the application to the right service center. Enclose the signed checks that have the correct amount of fee and post them to the designated service center.

Unacceptable Delivery Method

The delivery method used to submit your petition is critical in deciding if it moves any further. The designated service centers will accept submissions only when made in a certain way. Do not deliver them through any unconventional method.

Using FedEx, United States Postal Service, and U.P.S. are some of the approved methods of delivery that you can adopt to send the application to the right department.

What is H-1B Visa Lottery, and How does it Work?

Obtaining an H-1B visa is a lengthy procedure and involves multiple steps. One of these is the H-1B lottery.

Follow the steps closely

We must understand that there are thousands of non-U.S. applicants each year who apply for the H-1B visa through lottery. Relatively, there are very few applications accepted, and that too, only once a year. Therefore, it becomes crucial to follow all the steps very closely to avoid any errors or issues at a later stage.

No first-come-first-serve basis

It is essential to note that the visas are not granted on a first-come-first-serve basis. There is sufficient time given to apply for the visas; the window is wide and remains open despite the registration cap being reached.

Selection is at random

Once the window closes, the USCIS commences the H-1B visa lottery to spot the applications that would be carried over to the next stage of the process. The selection process is random, without any determination of the time of application or the merit of the applicant, and hence, the name – lottery.

Unsuccessful petitions back with the regular cap

With a cap of 65,000 being filled, the selection is now for 20,000 petitions that will be selected from the Masters’ Cap petitions. The ones not selected will be put back together with the regular cap.

Successful registrations are invited to submit a complete visa petition

The successful petitions are informed about the selection, and now, they can submit their complete H-1B visa form. The filing must be done within 90 days from the notification received.

Although this stage does provide some relief and hope of acquiring the visa; however, selection does not really indicate the visa’s acquisition. Eligibility criteria and the visa requirements play an important role in the visa being granted.

H1-B Deadline

For the next fiscal year's quota, individuals with a new job offer must apply by April 1st. The USCIS accepts applications until it reaches the cap of 85,000 for H-1B for the fiscal year. As per USCIS regulations, applications will be accepted for at least five business days or until their quota is reached.

It is important that your visa application is tied to the start date of the job offer. There should not be more than six months between the date of filing and when you expect to start working in the United States. On October 1st of each year, USCIS begins its fiscal year and ends on September 30th the next year. The earliest a newcomer can apply is in April if he or she wishes to start work between those dates.

Good to Know: Updates about H-1B

This section would be exceptionally useful for all the individuals whose H-1B visa is nearing expiry or who are looking for a renewal. With the recent changes in the policies of the USCIS, it is good to keep all the updates handy. This becomes especially important as the new policies may indicate a tougher process ahead for the people sighting an extension of their initial three-year term.

According to a recent USCIS policy memorandum, government officials are now allowed to issue Notices to Appear (NTAs) to non-immigrants seeking to extend their H-1B visas. In an NTA, a noncitizen is notified that they will need to speak with an immigration judge about their legal status. It was previously possible to use NTAs only after consultation with Immigration and Customs Enforcement (ICE). These notices can now be issued directly by USCIS.

FAQs

People tend to have a lot of queries surrounding the H-1B visas, and understandably so. After going through the H-1B visa guide, this section hopes to resolve those common doubts.

Q: How many H-1B visas are granted every year?

A: Under the regular cap, the maximum number of H-1B visas that are offered is 65,000 annually. There could be an additional 20,000 visas that could be available to the candidates with a Master's degree.

Furthermore, the regular quota reserves 6,800 applications for the natives of Singapore and Chile owing to the Free Traded Agreement.

Q: What about unsuccessful registrations?

A: The applicants who could not make it this year can apply again in the next financial year; however, they will have to wait for the application window to open.

Q: Is there an alternative to an H-1B visa?

A: The unsuccessful applicants may wonder if there is actually an alternative route they can take; here’s what you can do – you may enquire about the L1 visa or the O1 visa. L1 is for the transferee role within the company, and O1 is for exceptional achievements in the fields of science, education, sports, business, or arts. But then again, your choices will largely depend on your situation.

Q: What are the chances of success in the H-1B visa lottery?

A: By following the application process as mandated by the USCIS, the applicants can enhance their chances of getting selected in the lottery, although records reveal that 32% of applicants exhibited chances of selection in the year 2019-20.

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Key Takeaways

  • Developed in 1990, the H-1B visa program allows U.S. companies to hire qualified noncitizen or non-U.S. workers by sponsoring visas that permit them to work and live in the country.
  • Individuals with a valid H-1B visa are permitted to work in the U.S. for three years with a great possibility of further extension of up to three years.
  • As an employer, you can apply for the H-1B visa through the USCIS – the United States Citizenship and Immigration Services.
  • All businesses that look to hire foreign candidates must apply for the visa, which would be awarded to the worker who has been hired.
  • The process of applying involves filling out forms with all the information and credentials of the prospective employee. You will have to collect all the required information from them and enter a lottery.
  • The Hi-1B visa application begins with the employers filing the LCA, then filing the I-129 form, and finally checking the status of the application online.
  • H-1B visa application requires payment of fees at various stages and it is usually paid by the employer.
  • The employee may opt to pay the premium processing fee, although it is completely optional and does not hinder the way the application moves ahead.
  • Every year, the USCIS sets apart an 85,000 quota for the H-1B applications, of which 20,000 are reserved for candidates or applicants who possess advanced degrees from US institutions. The 65,000 positions that remain are for the applicants who do not meet the criteria of holding an advanced degree from US institutions.
  • The applicants who could not make it this year can apply again in the next financial year; however, they will have to wait for the application window to open.
  • By following the application process as mandated by the USCIS, the applicants can enhance their chances of getting selected in the lottery, although records reveal that 32% of applicants exhibited chances of selection in the year 2019-20.
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