The United States is a land of opportunity where people from all over the world come to find employment. In order for a foreign individual to work in the United States, they need to be given a work visa or work permit. These work authorizations are issued by the State Department of the United States, or by U.S. Citizenship and Immigration Services (USCIS), depending on where in the world the individual is applying from. H-1B visas are one of the most sought out for work visas offered to the international community.
The H-1B program allows U.S. companies to hire foreign individuals for specific needs that cannot be filled by American workers. H-1B categories include: 1) Specialty Occupations, meaning a job that requires a bachelor's degree or higher (H-1B); 2) Department of Defense Researcher and Development Project Worker (H-1B2); and 3) Fashion Models (H-1B3). Foreign individuals with H-1B status can work in the U.S. for the company that petitioned them for an initial period of three years, and can renew their authorization one time for another three years. Applying for H-1B status begins by entering into the H-1B lottery at the beginning of March of every year.
Due to the popularity of the H-1B work visa, USCIS receives more applications than the number of visas available. The H-1B quota set by the United States Government is 85,000 visas per fiscal year, and in 2022 alone, USCIS received 483,927 applications. To ensure fair and unbiased selection, a lottery system was set up to randomly choose the individuals who may apply for the visa. 65,000 applicants are selected from the lottery general cap (individuals who have a bachelor’s degree in a specialized occupation), and 20,000 from the master’s cap (individuals who have a master’s degree in a specialized occupation). The remaining applicants are put on standby in case a selected individual is determined not to be qualified or fails to finish the remaining H-1B application process within the allotted timeframe.
When an applicant is selected in the H-1B lottery, the U.S. employer has 90 days to file an H-1B petition for that individual. This petition requires documents, from both the employer and foreign individual, such as personal identification, academic certificates, and job and tax documents. These are required to show proof of the foreign individual’s identity and credentials, and the employer’s open position and capacity to pay wages. These documents have to be filed together in order for the petition to be considered complete. Any failure to show proof of qualification by the employer or foreign individual will result in the denial of the H-1B application.
Since the H-1B immigration process lasts roughly four months per year, careful planning is required by the foreign individual and U.S. employer to ensure they complete the immigration process on time.
The “specialist occupation” that is offered by the U.S. employer should fall within the applying individual’s academic skillset. For example, offering a chef position to a foreign employee who has a bachelor’s degree in physics will result in the application being denied. Carefully review the job responsibilities and requirements to ensure they comply with the H-1B requirements and match the employee’s skillset.
Any document or certificate not written in English needs to be translated by a certified translator. A copy of the original document along with the translation and certificate of translation are to be included in the H-1B Petition. Failure to produce proper translations can result in the delay or denial of an application.
Working with the U.S. Department of Labor and USCIS can be very stressful due to the specific requirements and procedures involving H-1B applications. It is wise to consult an attorney who has experience in immigration law to help you navigate the process.
The H-1B work visa is very popular way for employees to live and work in the United States. Though often misunderstood, the H-1B lottery was indeed established to ensure fair and unbiased selection of applicants for the available visas. Careful preparation by both the U.S. employer and foreign employee is required in order to ensure better chances of selection in the H-1B process.
