Oct 23, 2024
The H-1B visa is a non-immigrant visa that helps U.S. employers hire foreign professionals in specialized fields like engineering, IT, and healthcare—industries often facing a shortage of skilled workers.
For employers, understanding the process is necessary, as it involves multiple steps from registration to filing labor condition applications, all while ensuring compliance with the U.S. Department of Labor regulations. On the other hand, prospective employees have to understand the H-1B visa steps—from registration to potential lottery selection.
Recent updates under the Biden Administration have introduced important changes to the H-1B process. For example, the FY 2025 system has shifted to a beneficiary-centered selection process, aiming to reduce system abuse and give every applicant a fair chance, regardless of how many applications are filed for them. A new domestic visa renewal pilot program also launched in 2024, allowing some H-1B holders to renew their visas within the U.S., eliminating the need to travel abroad for renewals, which simplifies the process for both employers and employees.
In this article, we will review the entire H-1B Visa process from start to finish.
As we have established, the H-1B visa allows U.S. employers to hire foreign workers for specialty occupations that require advanced skills. This visa is especially important in fields like IT, engineering, and healthcare, where highly skilled professionals are often in short supply in the U.S. job market.
However, to qualify for the H-1B visa, candidates must meet specific criteria:
The U.S. is always on the lookout for talent and the H-1B visa allows businesses to maintain their competitive edge, drive innovation, and fill roles that require specific expertise.
The H-1B visa requirements are related to education, work experience, and U.S. labor law compliance. Here’s a detailed breakdown:
To qualify, the worker needs at least a bachelor’s degree or the equivalent in education and experience. This degree has to be relevant to the job, like in STEM, finance, or healthcare. If the degree comes from outside the U.S., it needs to meet U.S. standards. A credential evaluation from a professional academic evaluator is useful in proving the equivalence of the foreign educational credential or when using a combination of education and experience to meet the educational requirement. Sometimes, if an applicant has significant work experience, that might count instead of the degree.
For the H-1B visa, a U.S. employer has to sponsor an applicant. That means they file all the paperwork (Form I-129) to show that the job qualifies as a specialty occupation. Applicants can’t complete the process by themselves—the employer has to handle that part of the process.
The employer must pay the prevailing wage, which is the statistically determined average pay for the job in that location. They also have to make sure the (accepted) workers are paid no less than what they pay similar U.S. workers doing the same job. There are several sources for the prevailing wage, and these include the National Prevailing Wage Center (NPWC), the Foreign Labor Certification (FLC) Data Center, a survey conducted by an independent, authoritative source, or a collective bargaining agreement that contains a wage rate applicable to the occupation.
The employer needs to electronically submit a Labor Condition Application (LCA) to the Department of Labor, which ensures they’re following wage laws and maintaining good working conditions for both U.S. and foreign workers. If they make any errors or don’t comply with applicable laws, it could mean denial of the LCA, or when found to be in violation, levying fines or other sanctions.
The LCA makes sure that hiring an applicant won’t interfere with the pay or working conditions of their U.S. employees, and they need to post notices in the office to let everyone know about it.
The employer must also post a LCA notice for at least 10 calendar days, beginning on or within 30 days before the LCA is filed. The notice can be posted electronically or in hard copy. If using electronic posting, the employer can use an online bulletin board, email, or other method to notify employees. If the employer sends individual emails, they only need to do so once. For hard copy notice, the employer must post the notice in two visible locations at the worksite. Common locations include break rooms, bulletin boards, or near water coolers. The notice should include the following information: employer's name, job title, wage rate, worksite address, LCA filing date, number of H-1B nonimmigrants sought, occupational classification, period of employment, and location(s) where H-1B nonimmigrants will be employed.
In addition, the LCA must be posted in two conspicuous places at the worksite where the H-1B worker will be employed. This could include a breakroom, bulletin board, or any area where employee notices are typically posted.
Here’s the entire H-1B visa application process from start to finish.
The LCA is the first critical step for employers looking to sponsor an H-1B worker. It must be filed with the U.S. Department of Labor before the H-1B petition can proceed. The LCA ensures:
Compliance with DOL guidelines is key—this involves correctly calculating wages and ensuring the LCA is filed through the Foreign Labor Certification Gateway (FLAG). Processing times typically range from 7 to 14 days.
Employers must electronically register each H-1B candidate during the limited registration window via the USCIS portal. There’s a $10 registration fee per beneficiary. Only candidates selected in the H-1B lottery can proceed. After selection, employers can file the Form I-129 petition on behalf of the worker.
After being selected, the employer files Form I-129 with the USCIS to petition for H-1B status. This form includes supporting documents such as:
This step establishes the legitimacy of the employment relationship and the foreign worker’s eligibility.
Once filed, USCIS processes the petition, which can take anywhere from 5 to 7 months under normal processing. However, employers can opt for premium processing, which expedites the process to 15 days for an additional fee. During this stage, the employer may receive a Request for Evidence (RFE) if USCIS needs more information to approve the petition.
Once USCIS reviews the petition, they will issue either an approval or denial. If approved, the worker will receive Form I-797, a Notice of Action, signaling their H-1B visa has been granted.
If the worker is outside the U.S., they must attend an interview at a U.S. consulate or embassy for visa stamping. The required documents include:
Following a successful interview, the H-1B visa is stamped in the worker’s passport, allowing entry into the U.S.
Once the H-1B visa holder enters the U.S., they can begin working for the sponsoring employer on or after October 1st of the fiscal year. The initial stay is for three years, with possible extensions for up to a maximum of six years. If the worker wishes to change employers, the new employer must file a new H-1B petition on their behalf.
Transitioning from an H-1B visa to a green card is a complex process, but it provides a clear path for foreign workers to gain permanent residency in the U.S. through employer sponsorship. This journey typically involves several stages, from labor certification to status adjustment, with potential delays depending on the worker’s country of origin and U.S. immigration backlogs.
The first step in the transition is the PERM Labor Certification, which requires the employer to demonstrate that no qualified U.S. workers are available for the job. This process involves recruiting U.S. workers and proving that hiring the foreign worker won’t negatively impact U.S. wages. Depending on various factors, this stage can take 6 to 18 months. Employers must submit the required documents to the Department of Labor, who will review and certify the application before moving forward with the green card process.
Once the PERM is approved, the employer files Form I-140, which is the Immigrant Petition for Alien Workers. This step affirms the employer is offering a permanent position to the foreign worker and that the worker meets the qualifications. After filing, the priority date becomes important, as it dictates when the worker can move forward based on the availability of green card slots for their country of origin. Workers from high-demand countries like India and China may experience extended delays due to annual visa caps and backlogs.
When the worker’s priority date becomes current, they can proceed with the next step, which is either Adjustment of Status (if they are in the U.S.) or Consular Processing (if they are outside the U.S.). Adjustment of Status allows the worker to remain in the U.S. while their green card application is processed, whereas Consular Processing requires them to attend an interview at a U.S. embassy or consulate abroad. Both processes may involve biometrics and a final interview.
The registration period for this transition varies, especially for workers from countries with high demand for green cards. The PERM process alone can take up to 18 months, while the I-140 and final adjustment or consular steps depend on visa availability, which can stretch the overall process into several years.
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For H-1B holders facing delays, extensions beyond the usual six-year limit are possible under the American Competitiveness in the Twenty-First Century Act (AC21). Section 106(a) allows for one-year extensions if the green card process begins at least 365 days before the H-1B status expires. Section 104(c) provides three-year extensions for those with an approved I-140 who are waiting for their priority date to become current. This ensures that H-1B workers can stay in the U.S. while their green card applications are pending.
Challenges in this process often include delays due to country-specific visa quotas, especially for workers from countries like India and China. Additionally, backlogs in employment-based green card categories can lead to extended wait times, particularly for EB-2 and EB-3 applicants. If a worker switches employers during the process, the new employer must restart the PERM and I-140 filings, though the worker can retain their original priority date.
The H-1B visa process is undergoing several updates aimed at improving efficiency and security as we move into 2025. These changes are particularly important for employers and applicants seeking a smoother process.
A significant development is the introduction of H-1B e-filing through platforms such as Docketwise. This shift helps speed up the submission process, reduces errors, and makes the overall management of visa applications more efficient. With online filing now available for Forms I-129 and I-907 (for premium processing), employers can submit documents faster and track their petitions more easily. This technological advancement brings greater accuracy and efficiency to the H-1B process.
Starting in 2025, Docketwise will offer H-1B filing online, which will simplify the registration and petition submission for legal representatives and employers. These updates are designed to reduce the paperwork burden and improve access for all parties involved.
The Biden Administration introduced reforms with hopes of improving the fairness and integrity of the H-1B visa system. One key change involves a beneficiary-centric lottery system, ensuring each individual has an equal chance of selection, regardless of how many registrations are submitted for them. This change is aimed at preventing multiple registrations from skewing the odds in favor of certain applicants.
Another major update is the introduction of domestic H-1B visa renewals, which may soon be available for certain noncitizens. Previously, H-1B holders had to travel abroad for visa renewals, often facing delays. With the new rule, renewals will be allowed within the U.S., making the process faster and less disruptive for employers and workers.
The H-1B process involves several stages, each with its own processing time. Here's a brief overview:
Managing the H-1B visa process efficiently is key for immigration lawyers to avoid delays and complications. Here are a few practical steps that can help streamline the work:
Keeping track of deadlines is critical in the H-1B process. Using software to set automatic reminders for key dates, like the filing of the Labor Condition Application and Form I-129, can help lawyers stay on top of important submissions and prevent missed deadlines.
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E-filing has simplified the H-1B application process. Platforms such as Docketwise allow lawyers to submit petitions digitally, reducing the likelihood of errors and accelerating the process. E-filing helps ensure that documents reach the appropriate offices faster and are processed without the delays that come with paper filing.
Docketwise will introduce H-1B online registration in March 2025. Lawyers can use this tool to register clients for the H-1B lottery efficiently. This system will allow quick submission and easy management of multiple registrations, making it easier to organize casework during the busy lottery season.
A client portal is a convenient tool that enables clients to upload their documents, check case status, and communicate with their lawyers in a secure environment. This approach minimizes miscommunication, keeps all relevant information in one place, and reduces time-consuming back-and-forth correspondence.
Having a well-organized system for collecting and storing client documents is key. Using tools that categorize and store documents securely can save time and ensure all the necessary paperwork is ready when needed. Docketwise offers integrated document storage, which simplifies the management of required forms and credentials.
Managing client communications within one platform helps keep everything organized. Lawyers can use Docketwise to maintain all conversations and updates in a single location, ensuring nothing gets lost or overlooked. This method provides a clear record of all interactions and streamlines client management.
Staying updated on the H-1B process is essential for attorneys, employers, and applicants alike. Docketwise helps immigration lawyers manage deadlines, documents, and client communications, immigration lawyers can simplify the process and minimize errors. Staying on top of new regulations and tools is a critical part of managing H-1B cases effectively.
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To learn more about checking the status of an H-1B application's status, look at Docketwise's resources, including the tools designed for an H-1B status check.
