After an alien is offered and accepts a specialty occupation position with a U.S. employer, the H-1B visa application process can begin. We’ve consolidated the steps involved below.

Time Frame

The number of H-1B visas issued each year is subject to a statutorily defined maximum, as authorized by Congress. This annual quota, referred to as the “H-1B cap,” amounts to 65,000 H-1B visas, plus an additional 20,000 for aliens with at least a master’s degree from a U.S. university. As a rule, petitioners can file their H-1B applications no earlier than six months preceding the start date of a proposed job position.

The yearly H-1B filing period commences six months prior to the start of the subsequent fiscal year. For fiscal year 2018, for example, which begins on October 1, 2017, U.S. Citizenship and Immigration Services (USCIS) started accepting H-1B petitions on April 3, 2017.

Given the popularity of this nonimmigrant visa category among U.S. employers and alien employees alike, the number of H-1B petitions USCIS receives every year significantly outnumbers the number of visas available, and it often takes no more than a week after the start of the filing period for USCIS to receive a sufficient number of H-1B applications subject to the cap. In fact, the quota has been met within the first five business days of the start of filing season for the past five years.

To underline the supply-and-demand discrepancy, consider the selected years of H-1B application numbers in the table below.

Fiscal Year	Number of H-1B Visas Available	Petitions Received	Probability of Selection
2018	65,000 (plus 20,000 for master’s degree)	199,000	43%
2017	65,000 (plus 20,000 for master’s degree)	236,000	36%
2016	65,000 (plus 20,000 for master’s degree)	233,000	37%
2015	65,000 (plus 20,000 for master’s degree)	172,500	49%
2014	65,000 (plus 20,000 for master’s degree)	124,000	69%

Source: USCIS

In light of the compressed time frame and how quickly the cap has tended to be exhausted, petitioning employers should strive to start and finalize their applications well in advance of filing season. This means that employers (or their HR professionals) should expedite recruitment and file their Labor Condition Applications (LCAs) with the U.S. Department of Labor (DOL) as soon as possible. If employers find themselves running up against the clock given the limited time available, then they should consider whether or not it’s prudent to delay the start date of the position proposed for their prospective alien employee.

Process

The H-1B application process entails the following steps. Recall that the petitioner of an H-1B visa is a U.S. employer, which sponsors the beneficiary of the visa, the alien worker.

• A U.S. employer offers a specialty occupation job position to an alien worker. After the alien accepts the position, the employer agrees to file an H-1B petition on the foreign worker’s behalf.
• The employer retains an immigration attorney to file the H-1B petition, thereby establishing an attorney-client relationship. (Our firm is here to help you with all of your H-1B needs. Click here to retain one of our experienced H-1B attorneys.)
• The attorney collects all information and documentation required for the employer’s H-1B application.

  -Among these materials is a detailed job description, the exact dates of prospective employment, information about the petitioning employer, and information about the alien beneficiary’s qualifications and work experience.

• The attorney obtains the prevailing wage determination for the area of intended employment of the H-1B beneficiary.

-To this end, the attorney usually first reviews prevailing wage determinations made accessible by DOL in an online database.

-If the wage for the position on DOL’s database is higher than that offered by the petitioning employer, then the attorney will obtain a prevailing wage determination from the Department of Labor’s Wage and Hour Division for the state where the intended employment is to be located.

-If the Wage and Hour Division’s prevailing wage determination is also higher than the one proposed by the employer, then the attorney may obtain a prevailing wage from other sources of wage data.

-Given the above, it’s easy to understand why, in many cases, finding the appropriate prevailing wage determination for a specific H-1B position necessitates the professional advice and guidance of experienced H-1B attorneys.

• The attorney subsequently files an LCA via ETA Form 9035 & 9035E with DOL on behalf of the petitioning employer.

  -An approved LCA is binding. The employer is required to pay the same prevailing wage indicated, offer the same benefits to H-1B visa holders as other employees, and assure that employment of the alien will not negatively affect the conditions of other workers, including workers on strike and U.S. workers in general.

  -Evaluation of an LCA typically takes a week.

• After DOL approves the LCA, the attorney files the actual H-1B petition with USCIS.

  -This comprehensive petition package includes all required documentation, forms (including Form I-129), and filing fees.

• In general, USCIS takes between two and four months to adjudicate H-1B petitions that are selected for processing in the computer-generated lottery (i.e. when the agency receives a number of H-1B petitions exceeding the cap).

  -USCIS has historically offered a premium processing service for H-1B applications. Costing an additional $1,225 on top of standard filing fees, premium processing guarantees USCIS will render a decision within 15 business days of receiving a petition. This extra fee may be paid by the petitioning U.S. employer or by the prospective alien worker.

Our experienced immigration attorneys are here to guide professionals through the complicated H-1B application process and minimize any and all confusion or challenges. We understand how important an H-1B visa is to you, whether as the employer or the prospective employee. Our seasoned staff and years-long track record of success make Zhang & Associates the natural choice to facilitate your H-1B petitions.

For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:

General H-1B Topics

H-1B Articles

H-1B Visa: Temporary Workers in "Specialty" Occupations H-1B Requirements H-1B Services We Provide Applying for an H-1B Visa H-1B Advantages H-1B Limitations H-1B Documentation List Extending H-1B Status Beyond Six Years H-1B1 Subcategory: Free Trade Agreement H-1B2 Subcategory: Department of Defense H-1B3 Subcategory: Fashion Models Guidance on H-1Bs for Nurses H-1B Premium Processing and Related Issues H-4 Visas: Spouses and Children of H-1B Workers Frequently Asked Questions about H-1B Visas Filing Fees Attorney's Fees

The Cap USCIS Guidance on H-1B Cap Exemptions After the Cap Off-site Employees "Recapturing" Unused Time H-1B-Dependent Employers "Benching" H-1B Workers The Portability Rule Maintaining H-1B Status during Corporate Changes H-1B vs. O-1 Issues Relating to F-1 and OPT Issues Relating to Work, Travel, and Adjusting Status Memo: H-1B Status during the I-485 Waiting Period Memo: Be Aware of Abandonment Frequently Asked Questions about I-140 and I-485 Filing

 

Updated 04/26/2017