Introduction
H-1B visa was first introduced to fill the U.S. labor market’s need for skilled workers. The tech industry may have the most prominent H-1B employers, the visa can be used for almost any field that need skilled workers, such as nonprofit researchers, social workers, and accountants.
An H-1B petition is submitted by an employer, the petitioner, for a current or prospective employee, the beneficiary. Often, this employee beneficiary is an F-1 student who works for the employer under OPT.
Eligibility
To be successful with the H-1B petition, employer must demonstrate that it has a job opening that requires application of highly specialized knowledge. An H-1B job typically requires a someone who holds a U.S. bachelor’s degree, equivalent education or experience. The beneficiary must possess the necessary education and/or experience to meet the job requirements.
For beneficiaries who were educated abroad, demonstrating higher education equivalency to U.S. degrees is often a challenge. Employers frequently rely on third-party credential evaluators to bridge this gap. Of note, even if the beneficiary obtained a 4-year degree in China and completed a post-grad degree in the U.S., they are not necessarily free from needing to demonstrate this equivalency.
Lottery and Cap
65,000 H-1B visas are up for grab each year, with an additional 20,000 spots reserved for beneficiaries with Master’s degrees or higher. This limit on the available visa is called the “cap.” H-1B demands have consistently outpaced supplies. As such, USCIS uses a lottery system in its attempt to distribute the visas fairly.
On March 1 each year, employers aiming to petition for H-1B must submit registration by providing basic information about themselves and the beneficiaries. Registration period closes on March 20. Lottery results typically come back by the end of March. Occasionally, not always, USCIS would announce a second round and even third round of lottery selections later in the fiscal year, because some employers don’t submit approval petitions after winning the lottery.
More than 270,237 registrations were entered in 2021. In 2024, that number ballooned to over 780,884. USCIS views this drastic increase as signs of foul play and has devoted additional resources in fraud investigation and enforcement as a response. For prospective H-1B employers and employees, this will likely mean higher scrutiny and more burdensome petitions.
Not everyone is subject to the H-1B cap. For example, an H-1B employee who seeks permissible extensions or transfers are exempt from the cap. Colleges and universities, some of their affiliated nonprofits, nonprofit research organizations, and government research organizations are generally cap exempt. Rules on this subject can get complicated, so employers are encouraged to work with an attorney to explore options.
If cap exemption is not an option, one might try to increase their chance of winning the H-1B lottery. Employers are free to make another lottery entry for the same beneficiary next year. Naturally, this means a STEM OPT holder, who is permitted to work in the US for up to three years, has up to three chances to winning the H-1B lottery.
Submitting Petition
If selected in the lottery, employer may file H-1B petition starting April 1.
The I-129 form and its H supplement are the H-1B petition’s core. Besides the forms, petitioners submit documents demonstrating the job requirements and duties for its vacancies, documents about the company, and documents showing the beneficiaries’ qualifications. A Labor Condition Application (“LCA”) certified by the Department of Labor must also be included.
Petitions are currently adjudicated in two months, but that processing time can change based on USCIS policy, work load, and really any number of other factors. Employers who like the certainty of speedy adjudication can pay an additional premium processing fee.
Once approved, beneficiaries can typically being work on October 1 of the same year. H-1Bs are granted for an initial period of three years, and may generally be extended for another three years.
Cap Gap Extension
What happens if OPT ends after submitting the H-1B petition? In those situations, the F-1 student enjoys a cap gap extension, which automatically extends the OPT period until the H-1B is adjudicated. If the petition is approved, the student’s status naturally transitions from F-1 to H-1B. If the petition is denied, the student will have 60 days to depart the US.
This cap gap extension does not apply if the H-1B petition is submitted after OPT ends. However, the beneficiary may depart the U.S. and return with an H-1B visa once the petition is approved.
Topics Not Covered – Transfer, Extension Interplay with Green Card Application, Dual Intent
H-1B employee may transfer to a different employer, but how may this transfer be done? H-1B may be extended beyond the six years limit, but what conditions need to be met? H-1B is a dual intent visa, but what does that mean? Follow our channel as we delve deeper into the H-1B.
Conclusion
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