The Visa Series, Part 1: Securing Your Employees' H1B

Hiring great people to help build your company is both one of the most important, and most difficult things a founder or CEO can do. When you find that hire though, it’s your job to make sure they are able to take the job. In some cases, this involves guaranteeing they can get the work visa they need to join your company.

The visa you are looking to seek for your employee is called a temporary work visa, which allows them to work in the US for a fixed period of time. It’s also possible to seek a permanent work immigrant visa (like a Greencard) for your employee, but that’s normally not available until after they’ve been working with a temporary work visa.

Unlike other countries, the US does not offer any work visas for casual employment. This means that each petition is normally tied to a specific offer of employment and has to be filed by the prospective employer (you) with the U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security.

There are several categories of work visas in the US. In this three-part series, we’ll outline all the different options you could us to hire a non-US employee to your company. We’ll start out with the H1B, for workers in a specialty occupation.

What Is The H1B?

The H1B is normally reserved for workers with a bachelor’s degree or higher. The employee can hold this year for up to six years and the visa can be issued in increments of up to 3 years. This means that although the H1B can be good for up to 6 years, the employee has to apply for an extension at least every three years (sometimes more often), in order to get this visa.

Step 1: Determine if Your employee is Eligible (Answer: Probably)

There are a few formal conditions an employee must meet to be eligible for an H1B, but it basically boils down to one thing: does the job require a minimum of a bachelor’s degree and does the employee have it. If both of those are true, you are likely in the clear.

The formal requirements though are:

• They have an employee-employer relationship.

• This means that you as a US based employer can hire, pay, fire or otherwise supervise the worker’s job.  This means that a foreign worker cannot sponsor themselves, even if they started a company, unless they showed that there is a US-based company that can control their employment.

• They have a specialty occupation, which can be proven by meeting any of these requirements:

1. Having a job that requires bachelor’s degree or higher

2. The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;

3. The employer normally requires a degree or its equivalent for the position; or

4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree. 

• The job is related to the employee’s field of study.

• The H1B visa is based on the premise that an employee is getting the job because they have one, or multiple specialized skills that will benefit the employer and that they acquired these skills through higher education. It’s therefore necessary that you prove that what the worker studied in their degree allowed them to become more specialized for this job.

• The employee is going to be paid actual or prevailing wage for the job.

This helps guarantee that you, the employer, are not offering a foreign worker a job because they are more affordable than hiring a US worker.

Step 2: How to Apply

The USCIS issues H1Bs starting on October 1st and starts accepting petitions 6 months in advance. This means that the first day you can file an H1B application is on April 1st.

We would highly recommend sending your petition on April 1st. Although the USCIS accepts petitions any time after April 1st, the last two years they have met their quota of applications within the first week of April. This happens because of something called the H1B Cap.

Quick pause to explain the H1B Cap

• H1Bs are limited to 85,000 per fiscal year, something referred to as the H1B cap. Of these 85K visas, 20K are reserved for workers with master’s degree from a US university.

• This cap means that sometimes there is a lottery to select which petitions will be processed for the H1B. In the past 2 years (2013 and 2014), H1B applicants have surpassed the 85K allotted and no one who applied after the first week of April was even considered for the lottery. 

In order to file a petition, you need to pay a few fees (outlined below) and gather a few documents. Depending on your employee’s scenario, they will need different docs. We highly recommend reading through that list here.  There are some documents however that are required for all H1Bs, such as:

• Form I-129 - This is the actual petition for a Nonimmigrant worker.

• Employer support letters - This is where you make the case for hiring this employee and why they are necessary for your company.

• Department of Labor certified LCA, Form ETA 9035 - This form attests that you’re compliant with all the Department of Labor requirements for an H1B.

We would highly recommend getting a lawyer to file your petition. While this will increase the fees associated with an application, it also normally increases the odds that the application will be approved. While all these documents might seem straightforward enough, immigration lawyers can often help you use the right language to help the USCIS understand your new employee’s value.

Step 3: Application Fees

• Fee for filing the I-129 - $325

• USCIS Education and Training Fee - $750 - $1500 (Employers with fewer than 25 full time employees pay $750, while employers with more than 25 employees pay $1500.)

• Fraud Prevention and Detection Fee - $500

This does not include any additional fees your lawyer might charge. Different lawyers charge very different rates but we’ve seen petitions prepared for anywhere from $500-$5000 in legal fees.

Step 4: To Premium Process or Not To

The USCIS offers an option called Premium Processing which means your employee’s petition will be processed within 15 calendar days. This option requires filing an additional form (Form I-907) and paying an additional premium processing fee of $1225.

The upsides of Premium Processing are that you hear faster and some say, it increases the odds of your application being selected, though that is not confirmed by the USCIS.

The downsides of Premium Processing are increased cost as well as the risk of a Request for Evidence. In the past, applicants who asked for Premium Processing have heard back with a Request for Evidence by their processing center, which means they were asked to submit more supporting evidence for their application, something the USCIS is said to use as a tactic to buy time.

Step 5: Sitting, Waiting, Wishing

Once you’ve filed the petition, there’s nothing to do but wait. The USCIS is actually pretty good about updating their applicants and will let you know when they’ve received your petition, if you were selected by the lottery (if that applies) and whether your petition was accepted. They will mostly communicate via snail mail.

Step 6: Actually Getting The Visa

If your petition was accepted (hooray!), then the next step is getting the actual visa. The visa is the travel document that will allow your employee to travel to the US to start working and it has to be issued outside of the US.

As we mentioned above, the first visa the USCIS can issue for an H1B is starting in October 1st so the applicant will not be able to start working until that date. Once the petition is approved though, the applicant can schedule an appointment in a US embassy abroad to start the process of issuing their visa. 

The USCIS website warns you that although your petition was approved, it's still possible your visa will be denied. In our experience, this does not happen very often and if it does, it is normally tied to some suspicion that the initial job opportunity might not have been legitimate. You really should be in the clear at this point. 

H1B Transfers

If you hire an employee that already had an H1B through another employer, the process actually moves a lot faster (though not cheaper). Once an employee has been issued an H1B by any employer, they are able to transfer that visa over to any employer by submitting a new petition.

The process of applying for a transfer is identical when it comes to fees and documentation, but the applicant does not have to do it on April 1st or wait until October 1st to start working at their new employer. In the case of a transfer, the employee can start working at the new location as soon as they’ve submitted the petition. That’s right - they don’t even need to wait for the petition to be approved.

In our next pieces, we'll be talking about the L1 Visa and the E3s, TNs, and O1s. If you have any questions about the H1B, please don't hesitate to reach out in the comments or if you're a customer, give us a call at 1-888-534-1711. The goal of this series is to help you understand what visa to pursue and what's involved with each visa, so the more questions you ask the better.