Employers Who Want to Hire Foreign Workers in H1-B Status Should Start the Process Now

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Employers who wish to hire foreign workers in a “specialty occupation” this year should start the process now in order to submit their petitions on April 1, the first day that U.S. Citizenship & Immigration Services (USCIS) will be accepting H-1B visa petitions.

By law, only 20,000 H-1B visas are issued to foreign workers holding a U.S. Master’s degree and 65,000 H-1B visas are issued to individuals of extraordinary ability (those who possess, by education and/or experience, at least the equivalent of a U.S. Bachelor’s Degree). 

Each year, USCIS receives enough H-1B petitions within the first few days of the April 1 to fill all of the spots for the entire year.  That means employers who fail to file their paperwork by April 1 will likely have to wait until next year to submit a petition.

Foreign workers who want to work in the United States under an H-1B visa must be sponsored by an employer to work in a  “specialty occupation” (generally meaning a position that requires at least the equivalent of a U.S. Bachelor’s degree for entry).  A large number of H-1B visas go to those in the science, technology, engineering, and math fields.

The process for completing an H-1B petition can take several weeks and requires both the employer and the worker to compile numerous documents:

  • First, the employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor.  The LCA is used to determine what the prospective worker should be paid, based on the profession, work to be performed and the geographic area where the worker will be employed. Once filed, it typically takes a week to process the application.
  • Second, the employer must draft a Form I-129 petition for the H-1B visa.  The Form I-129 petition requires detailed information about the employer as well as the prospective worker.  Typical information to be provided includes a detailed job description, employment and earnings data for the company, and education credentials, work experience and passport information for the worker.  Employers and workers should keep in mind that documents that are not in English must be translated, which can take additional time.
  • Third, the employer must submit an employer support letter explaining why the position at issue should be considered a “specialty occupation” and why the prospective worker is qualified to be employed in that “specialty occupation.”

All told, this process can take a few weeks to complete, which is why it is important to start now.

Still, employers should know that meeting the deadline doesn’t guarantee an H-1B visa. If USCIS receives more petitions than it has visas USCIS will hold a lottery to determine which beneficiaries will be awarded H-1B visas.  That happened last year after USCIS received 172,500 H-1B petitions by April 7.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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