Apply for an H 1B Visa

An H-1B visa is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. To apply for an H-1B visa, you must have an offer of employment from a U.S. company that is willing to serve as a petitioner in your visa application. The position for which the employer seeks to hire you must require at least a Bachelor's degree and you must hold a Bachelor's degree or higher in the field that relates to your job. If you are eligible for an H-1B visa, your employer will need to apply for a certification from the Department of Labor (DOL) and file a visa petition on your behalf. If you are approved, you will be eligible to begin working, unless you are currently outside the U.S. In that case you will need to take the additional step of applying for a visa to enter the U.S. legally from the U.S. Consulate in the country where you are located.

Steps

Preparing to Apply

1. Understand the difference between "H-1B Classification" and an "H-1B Visa." A worker who is already physically present in the United States only needs to obtain "H-1B classification" in order to work legally in the U.S. However, a worker who is outside of the U.S. must first qualify for H-1B classification and then apply for an H-1B visa in order to legally enter the U.S. and work there lawfully.
   • For a worker to qualify for H-1B classification, his employer must submit Form I-129 to USCIS on his behalf.
   • Once Form I-129 is approved, a worker who is already in the U.S. will be eligible to begin working lawfully. However, if a worker is not in the U.S,, he will have to take the additional step of applying for an H-1B visa that will allow him to legally enter the U.S.
   • To apply for an H-1B visa, a worker abroad must request a visa interview at a U.S. Consulate abroad. At the interview, he will need to present his approved Form I-129 and other supporting documents. If approved, the Consulate will grant him a visa to enter the U.S.
   • Workers who are already present in the U.S. with H-1B classification will need to get an H-1B visa if they wish to leave the U.S. and re-enter lawfully.
   • Keep in mind that, though there is a technical difference between H-1B classification and an H-1B visa, most people will use the term "H-1B visa" for both kinds of status. In addition, the application filed for H-1B classification is called an "H-1B Visa Petition."
2. Determine if you are eligible for H-1B Classification. In order to apply for H-1B classification, you must:
   • Have an offer of employment from a U.S. company that is willing to serve as a petitioner in your visa application.
   • Have a job that qualifies as a "specialty occupation," which is defined generally as an occupation for which a Bachelor's degree or higher is a minimum requirement for the job. Whether a particular position is classified as a "specialty occupation" is determined by the Department of Labor (“DOL”) and set forth in Occupational Outlook Handbook.
   • Have at least a Bachelor's degree in a field that relates to your job. For example, to work as an engineer, you will need a degree in engineering (either Bachelor's or higher). If you do not have at least a Bachelor's degree in the proper field, you may still qualify with a combination of work experience and education.
   • Earn an a salary that is at least the actual or prevailing wage for a position in your field, whichever is higher. This is determined by a database maintained by the DOL, which assigns a current prevailing wage to every occupation based on geographical location.
3. Find out when you can apply. For each fiscal year, USCIS may approve only 65,000 H-1B visa petitions. An employer may not file an H-1B visa petition more than 6 months before the date of the actual need for the beneficiary’s services or training. Since the fiscal year begins on October 1, the earliest date on which an employee can be hired for a given fiscal year is October 1. As a result, the earliest date on which an employer can file an H-1B petition is April 1 of the previous fiscal year.
   • For example, if you wish to begin working by October 1, 2016 (fiscal year 2017), your employer will need to submit an H-1B visa petition on your behalf by April 1, 2016.
   • Some years, the cap for H-1B visas is reached almost immediately. For the 2016 fiscal year, the H-1B visa cap was reached by April 7, 2015, which means all of the visas had been issued within seven days. For this reason, it is very important that you plan ahead so that you are ready to submit your visa petition by exactly April 1.
   • Out of the total 65,000 available slots, a “carve-out” of 1,400 is set aside for citizens of Chile and 5,400 is set aside for citizens of Singapore. An additional 20,000 H-1B visas, which is separate from the general H-1B cap, are available to those who have earned Master’s or higher degrees from U.S. universities. This is also referred to as the “Masters cap.”
4. Plan ahead. Since the timing of your application is critical to your obtaining an H-1B visa, you should plan ahead and have a timeline in mind for completing each stage of the visa process.
   • In January of the year in which you hope to start working, apply for jobs with companies that are likely to sponsor an H-1B visa for a person with your profile.
   • By February, you will need to have accepted an offer of employment. Be sure the company is willing to sponsor your visa application. Once a company has agreed to sponsor your application, begin collecting the supporting documents you need for your visa petition.
   • In March, your employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). This application takes about a week to be processed. You will not be able to submit your visa application until the DOL has certified your LCA.
   • While your LCA is pending, your employer must begin preparing the H-1B visa petition by completing Form I-129 and attaching the supporting documents.
   • By the final week in March, your employer must send your H-1B visa petition to USCIS so that it arrives exactly on April 1.
   • If your H-1B visa petition is approved and you are already in the U.S., there will be nothing more for you to do. If, on the other hand, your visa petition is approved, but you are outside of the U.S., you must submit a visa application to a U.S. Consulate abroad and request an interview. If approved, you will be given a visa to enter the U.S. and begin working on October 1.

Obtaining Certification from the U.S. Department of Labor (DOL)

1. Register for iCERT account. The first step to applying for H-1B Classification is for your employer to submit a Labor Condition Application (LCA) to the U.S. Department of Labor (DOL) on your behalf. If approved, the DOL will respond with a certification your employer must attach to the H-1B visa petition. This process is done electronically through the iCERT System.
   • To register for an account, open the iCERT Portal Welcome Page (https://icert.doleta.gov) and click on "Create your portal account today."
   • Select "Create Employer Account" and enter your login and company information in order to create an account.
   • Once the registration is complete, you will be given a temporary password. Use this password to login to the iCERT home page and select a permanent password.
   • Employers unable to file electronic applications due to physical disabilities or lack of internet access may submit a written request to file Form ETA 9035 (instead of Form ETA 9035E) via U.S. mail. This request must be made prior to submitting an application.
2. Plan the timing of your submission. LCAs can be filed only six months ahead of the H-1B start date stated on the LCA application. Your intended state date will generally be October 1, due to the fact that your visa petition cannot be filed until April 1. However, you cannot wait until April 1 to apply for the LCA because you will need to receive your certification in time to include it in your visa petition.
   • File your LCA application in March, leaving at least two weeks for the LCA to be processed (typically the application will be processed in a week).
   • Ask for a start date of October 1 even though the application is being submitted prior to April 1. The only effect of asking for a later start date is that the DOL certification will expire before you have completed your full three years of work allowed under H-1B Classification. If the LCA is filed, for example, on March 25, the H-1B start date has to be September 25 and ending date would be September 24 three years later.
3. Complete Form 9035E. Once your employer has registered for an iCERT account, he must prepare and submit Form ETA 9035E electronically through the DOL iCERT System. In this application, your employer must attest to the need to hire you over a U.S. worker due to the insufficiency of qualified U.S. workers and show that hiring you will not adversely affect the wages and working conditions of similarly employed U.S. workers.
   • From the iCERT Portal Home / Portfolio Summary page, select the LCA visa type case tab.
   • Click the "Begin New ETA Form 9035E" button for the applicable visa type (in this case H-1B).
   • In the first section, check "yes" to all boxes indicating your compliance with LCA requirements and attesting that all statements in this form are true and accurate. Also, indicate whether you would like to have Form 9035E electronically attached to the certified LCA.
   • Under "Step 1: Employment-Based Nonimmigrant Visa Information and Temporary Need Information," indicate the type of visa classification (H-1B), job title and code, period of expected employment and total number of workers being requested through the certification.
   • The next three steps will guide you through a series of questions about the name and contact information of the company filing the certification, one person authorized to act on behalf of the company in labor certification matters and the name and contact information of the attorney, if any, that is preparing the form.
   • Under "Step 5: Rate of Pay, Employment and Prevailing Wage Information, and Employer Labor Conditions Statement," indicate the salary and pay period for the intended employee and the prevailing wage information for the geographical area in which the employee would work. Then, check "yes" to agree to the four statements regarding employee labor conditions.
   • In the final section, the employer must sign a declaration swearing under penalty of perjury that all statements made in the application are true.
   • At the end of the questions, click "Save" and "Next" to submit your application.
4. Print and sign certification. Your employer will be informed that your LCA has been approved by logging into the iCERT System.
   • From the iCERT System, your employer should print and sign three hard copies of the DOL certification.
   • Your employer should keep one hard copy for himself, provide the second one to you and submit the third one to USCIS in support of the H-1B visa petition.

Applying for H-1B Classification

1. Prepare Form I-129. Once the LCA has been certified, your employer must prepare Form I-129 on your behalf.
   • Open the USCIS link for Form I-129: http://www.uscis.gov/i-129. The complete instructions for filling out the form can be found on the same site.
   • Download the form and type your responses or print out the form and answer them in blue or black ink.
   • In Part 1, insert the name and contact information of the employer filing the petition.
   • In Part 2, Question 2, check the box for "New Employment" if the employee is outside the U.S. and has no classification or is in the U.S. but is applying to change his status from another nonimmigrant classification to H-1B classification. Check the box for "Continuation of previously approved employment," if the employee is already working for the same employer under H-1B classification.
   • In Part 2, Question 4, check the box for "a" if the employee is outside the U.S. or will leave the U.S. to seek a visa abroad. Check the box for "b" if the employee is in the U.S. in a different nonimmigrant classification and is applying to change to H-1B status. Check the box for "c" if the employee is already in the U.S. under H-1B status.
   • In Part 3, provide the name, contact information and details about the arrival and previous status in the U.S. of the employee.
   • In Part 4, state the name of the Consulate where the employee plans to apply for his visa if he is outside of the U.S. If not, state "N/A" for not applicable.
   • In Part 5, give basic information about the proposed employment, including job title, wages and dates of intended employment. The start date should be six months following the filing of the petition and end date should be three years after the start date.
   • In Part 6, indicate whether a license will be required to release technological information to the employee.
   • In Part 7, write out the name, email address and phone number of the employer. Then, print out the form and have the employer sign the hard copy.
2. Attach supporting evidence. In addition to completing Form I-129, you will need to attach supporting evidence to your visa petition. This includes:
   • A signed copy of the LCA certification you received from the DOL;
   • Evidence that the proposed employment qualifies as a "specialty occupation," such as a copy of the job announcement showing the minimum requirements for the job, a detailed description of the duties of the position and job listings from similar jobs showing that the minimum degree requirement is common to the industry;
   • Evidence that the employee has the required degree, such as a Bachelor's degree or higher from a U.S. university, a foreign degree with evidence that it is equivalent to a Bachelor's degree or a combination of education and work experience that is equivalent to a Bachelor's degree;
   • A copy of any required license or other official permission to practice the occupation in your intended field of employment; and
   • A copy of your employment contract.
3. Include evidence that you maintained your previous status. If you are changing your immigration status to H-1B status or extending your current H-1B status, you will remain in valid immigration status as long as you file your application before your current status expires. If this is your situation, you must additionally attach the following evidence to your visa petition:
   • A copy of your I-94 card and the stamped page of your passport showing your initial entry into the U.S. was lawful;
   • A copy of the USCIS approval notice you received when you were approved under your current immigration status;
   • Evidence that you maintained your status, such as pay stubs and W2s if your status was based on employment.
4. Pay the filing fee. Along with Form I-129 and supporting documents, your visa petition application must also include the required filing fee. This must be paid by a check or money order made payable to the "Department of Homeland Security." The base filing fee is $325. However, the following additional fees also apply depending on your circumstances:
   • $500 one-time Fraud Prevention and Detection fee
   • $750 or $1,500 American Competitiveness and Workforce Improvement Act (ACWIA) fee, depending on the number of full-time employees employed in the United States by the H-1B petitioner ($750 if 25 or fewer and $1,500 if over 25)
   • $2,000 one-time Border Security Act (Public Law 111-230) fee for cases filed before October 1, 2015 by U.S. employers, which have 50 or more employees in the United States and more than 50 percent of whom are in H-1B and/or L-1 status.
   • There is an optional government filing fee of $1,225 for premium processing service. This will guarantee that USCIS adjudicates your case within 15 calendar days.
5. Mail your application to the correct USCIS location. Once you are ready to submit your visa petition, send it to the USCIS address that corresponds to the state in which the employee will perform his duties. This information changes frequently and can be obtained by checking the USCIS website or calling USCIS over the phone.
   • For regular processing of your application, visit http://www.uscis.gov/i-129 or call the USCIS National Customer Service Center at 1-800-375-5283 for the most current information on where to send the petition.
   • For premium processing of your application, first check the USCIS Web site at www.uscis.gov to ensure that the requested classification is eligible for premium processing. If it is, you will additionally need to file Form I-907, Request for Premium Processing Services with the applicable fee. For information about where to send this application, visit http://www.uscis.gov/i-907 or contact the USCIS National Customer Service Center at 1-800-375-5283.

Applying for an H-1B Visa

1. Wait to receive visa petition approval. In order to obtain an H-1B visa that allows you to enter the U.S. legally, your employer must first file Form I-129 on your behalf. Once this form has been approved, you will be ready to apply for your visa.
   • If you are already in the U.S., you do not need an H-1B visa. Once you have an approved Form I-129, you will have H-1B status (or "classification") and will be eligible to begin working. The only exception is if you wish to leave the U.S. and reenter. In that case, you will need to apply for an H-1B visa from a U.S. Consulate abroad.
2. Review the requirements for the consulate in your country. The visa application process will be conducted entirely through the U.S. Embassy or Consulate in the country where you are located. You will need to review the requirements set forth by your particular consulate before you begin the process, as the order of the steps and specific requirements sometimes vary.
   • To find out the requirements for your particular consulate, consult the instructions on the embassy or consulate website for your country. A full listing of U.S. Consulate websites can be found here: https://www.usembassy.gov/
   • You may apply for your visa at any U.S. Embassy or Consulate, but keep in mind it may be difficult to qualify for a visa outside of your place of permanent residence.
3. Complete the online visa petition. To begin the process of applying for your visa, complete Form DS-160, Nonimmigrant Visa Application on the Department of State (DOS) website.
   • Open the link to Form DS-160: https://ceac.state.gov/genniv/
   • Select the location where you will be applying for your visa.
   • Click on "Start an Application." The application will guide you through a series of questions about your contact information and visa eligibility that you should answer online.
   • When prompted, upload a photo of yourself. The photo you upload can either be a scanned a 2x2 inch passport stye photo or a color digital photo and must meet DOS guidelines, which can be found here: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/photos/digital-image-requirements.html
   • Once you have completed the application, print the confirmation page. Save it in your records so that you can take it to your visa interview.
4. Schedule an interview. In order to schedule an interview, you will need to follow the specific instructions set forth by the U.S. Embassy or Consulate of the country from which you will be applying.
   • Visit the website of the U.S. Embassy or Consulate in your country to read the instructions for scheduling an interview. A full listing of U.S. Consulate websites can be found here: https://www.usembassy.gov/
   • To schedule your interview, you will need to provide the receipt number that is printed on your approved Form I-129.
   • Wait times vary depending on location, time of year and visa category. It is best to apply early. To find out the average wait time you can expect, select the name of your U.S. Embassy or Consulate from the list that appears under "Appointment Wait Time" at the following DOS website: https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
5. Prepare for your interview. Once your interview has been scheduled, you will need to review the instructions for your particular embassy or consulate to make sure you fulfill all necessary requirements before arriving at the interview. Generally, you will be required to:
   • Pay the non-refundable visa application fee of $190 before the interview.
   • Bring hard copies of the required documents to the interview. This includes: your passport, a copy of the DS-160 confirmation page, a receipt showing payment of your application fee and a copy of your approved I-129 visa petition.
6. Attend your visa interview. During your visa interview, a consular officer will review your application and determine whether you are qualified to receive a visa. Be prepared to answer questions about the job for which you have applied to enter the U.S. and your application in general.
   • Ink-free, digital fingerprint scans will usually be taken during the interview.
   • Once the interview is over, the consular officer will inform you of the next steps. In some cases, you will be informed on the spot that you have been approved. If there are documents missing from your application, you will be instructed to submit those documents at a later date.
7. Pick up your passport with your H-1B visa. If your visa is approved, you will be given instructions for picking up your passport with the H-1B visa. The pick-up or delivery of your passport will generally be handled by a designated courier.
   • Even once your visa is approved, you will not be able to enter the U.S. until 10 days before the start date of your employment.

Tips

• As with most immigration petitions, it is best to hire an immigration attorney to assist with the preparation of an H-1B petition. There are many moving parts and factors to consider that can cause problems with your case and impact the likelihood that your application is approved.
• The immigration forms require knowledge of immigration laws. Completing the forms incorrectly can result in a denial of your application.

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