H-1B Visa Attorney
The H-1B visa is a critical pathway for U.S. employers to hire skilled foreign workers in specialty occupations, such as technology, engineering, and healthcare. Our H-1B visa attorney offers comprehensive legal guidance. Whether you’re an employer navigating the H-1B process or a professional seeking work authorization in the United States, we provide personalized support to help you achieve your immigration goals. Let our dedicated team assist you in securing the H-1B visa efficiently and effectively.
H-1B Visa
The H-1B visa is a vital pathway for skilled professionals seeking employment in the United States and for employers looking to hire international talent. This visa allows U.S. companies to employ foreign workers in specialty occupations, such as technology, engineering, and healthcare. Our H-1B visa attorneys provide comprehensive guidance on every step of the H-1B visa process, including LCA filings, Form I-129 preparation, and responses to RFEs. Whether you’re an employer or an applicant, we’re here to simplify the H-1B visa process and help you achieve your immigration goals.
What is an H-1B Work visa?
H-1B visa is a temporary nonimmigrant category that permits U.S. employers to petition highly qualified foreign professionals to work in the U.S. in “specialty occupations” that typically require a U.S. bachelor’s degree or foreign equivalent. H-1B visas are also available to distinguished fashion models.
H-1B Visa Status
We often get asked – what does an H-1B visa status mean? An H-1B status relates to the applicant’s status inside the United States. There is an important distinction between an H-1B visa stamp and an H-1B status. An H-1B visa stamp is a document that allows a foreign national to enter the U.S. However, once the foreign national enters the United States with an H-1B visa stamp, their status will be an H-1B status.
H-1B status is normally granted for three years and may be renewed at one-year to three-year increments with a total maximum of six years. An H-1B holder can generally apply for an H-1B extension beyond the 6-year maximum limit under specific circumstances based on AC21.
Typical H-1B Visa Qualifications:
To get an H-1B visa, you typically need to meet the following H-1B visa requirements:
- You must have a job offer from a U.S. employer;
- You are coming to the U.S. to perform services in the specialty occupation;
- You have a U.S. Bachelor’s degree or a foreign equvalent. In absence of a relevant degree, you may be able to use relevant work experience in the field instead;
- Your education and experience need to match the job requirements;
- You have been offered prevailing wages (wages that are typically paid to workers for similar jobs in the same geographical area);
- You have been selected in the H-1B visa lottery (unless exceptions apply).
How to Apply for an H-1B Visa - Application Process
The H-1B visa application includes multiple steps. If you have already been counted towards the H-1B visa cap, are exempt from the H-1B cap count, or were recently chosen in the H-1B visa lottery, the employer can begin the H-1B application process by submitting an H-1B petition to USCIS.
Typically, with the help of an immigration lawyer, the employer will file a Labor Condition Application (LCA) for certification with the Department of Labor(DOL). After the DOL certifies the LCA, the employer will prepare the H-1B petition containing multiple items such as a Petition for a Nonimmigrant Worker (Form I-129), certified LCA, H-1B supporting paperwork, and applicable government filing fees. The H-1B application supporting paperwork usually includes items such as an H-1B support letter that explains how you qualify for the benefit sought, proof of your relevant education and experience, employment offer letter, as well as evidence of the company’s existence, such as corporate documents and financials.
If the H-1B petition is approved, the next steps depend on whether the applicant is in the U. S. or abroad. If the applicant is in the U.S., the applicant’s H-1B status will be fact-specific. It will depend on the applicant’s status in the U.S. and what the employer specifically requested in the H-1B petition. For example, did the employer request a change of H-1B employer and/or an H-1B extension for someone who has been in a lawful H-1B status. Or if the applicant is in some other lawful status, such as an F-1 status.
If you are abroad and do not yet have a valid H-1B visa stamp in your passport, you must apply for an H-1B visa through consular processing. To do so, you must fill out Form DS-160, which will take around 90 minutes to complete. You must also pay a visa application fee and schedule an interview in a U.S. consulate or embassy near you. You will need to appear for the interview and bring the required paperwork, such as a DS-160 confirmation page, I-797 H-1B approval notice, as well as your valid passport. You should also review the consulate’s requirements to ensure you bring all necessary documentation with you.
H-1B Visa Extension
What is an H-1B Work Visa Extension?
If you are working in the U.S. under an H-1B work visa and your current authorization is nearing expiration before your employment is expected to end, your employer can apply for an H-1B extension on your behalf. The process for requesting an extension is similar to the initial H-1B application, requiring your employer to file a new H-1B petition with USCIS.
H-1B Extension Eligibility
To qualify for an H-1B extension, you must:
- Be in valid H-1B status.
- Continue to work in a specialty occupation, which is a role requiring specialized knowledge and skills.
- Either have time remaining on your maximum 6-year limit or qualify for an extension under the American Competitiveness in the 21st Century Act (AC21).
Employers are encouraged to start the H-1B extension process 3-6 months before your current status expires to ensure timely processing.
How to Change Employers - H-1B Work Visa Transfer
Changing H-1B Employers
If you are on an H-1B visa and plan to switch employers, here’s what you need to know:
When You Can Start Working for a New H-1B Employer
You can begin working for your new employer as soon as they file a non-frivolous Form I-129 petition on your behalf or on the requested start date in the petition, whichever is later.H-1B Portability Eligibility Requirements
To qualify for H-1B portability:- You must be in valid H-1B status.
- You must not have been employed without authorization since your last U.S. admission.
- The new employer must file the petition before your current authorization expires.
While the I-129 Petition is Pending
- You can work for the new employer if eligible for portability.
- If approved, you may continue working for the validity period granted.
- If denied, work authorization under portability ends immediately.
Grace Period After Job Loss
If your employment ends, you have up to 60 consecutive days or until the end of your H-1B validity period (whichever is shorter) to:- Find a new job.
- Change your immigration status.
- Leave the U.S.
H-1B Cap-Exempt to H-1B Cap-Subject Employment
Transitioning from a cap-exempt to a cap-subject employer involves additional steps:
Cap-Subject Process
- Your new employer must file a cap-subject petition, which requires participating in the H-1B lottery during the registration period (typically in March).
- Approved petitions for cap-subject positions can only begin on or after October 1 of the applicable fiscal year.
Changing Employment Terms with the Same Employer
If you wish to modify your job role or employment terms with your current employer:
- Your employer must file a new or amended Form I-129 petition to reflect the changes.
- You can start the new or changed employment as soon as the petition is filed or on the requested start date in the petition, whichever is later.
This structured guidance helps you navigate employment changes while maintaining compliance with H-1B regulations.
The information provided here is for general informational purposes only and should not be considered legal advice. Always consult with a licensed immigration attorney for personalized guidance and refer to the official USCIS H-1BSpecialty Occupations page to ensure compliance with all H-1B regulations and maintain your lawful status.
What is H-1B Visa Sponsorship?
H-1B visa sponsorship allows U.S. companies to bring foreign professionals to the United States for temporary work. The U.S. employer is responsible for filing the H-1B visa petition with USCIS. After that, if the H-1B petition is approved, the employer is responsible for providing the H-1B employee with the same job benefits as other employees, including bonuses, benefits, etc.
Pathway from an H-1B Visa to Green Card
The H-1B work visa provides a unique opportunity for individuals to work in the United States and offers a potential pathway to permanent residency. While holding an H-1B visa does not automatically lead to a green card, it allows eligible individuals to pursue permanent residency through employment-based green card categories such as EB-1, EB-2, and EB-3.
A key benefit of the H-1B visa is its “dual intent” status. This means that H-1B visa holders can live and work in the U.S. with the intention of eventually applying for permanent residency without jeopardizing their current visa status. Dual intent facilitates a smoother transition for those seeking to adjust from temporary to permanent residence.
For most employment-based green card categories, an employer must sponsor the applicant. The process begins with the employer filing a PERM Labor Certification with the U.S. Department of Labor, demonstrating that no qualified U.S. workers are available for the position. Once approved, the employer submits Form I-140, Immigrant Petition for Alien Worker, to USCIS. After the I-140 is approved, the applicant can apply to adjust their status from an H-1B visa holder to a U.S. permanent resident.
In contrast, certain categories, such as EB-1A for individuals with Extraordinary Ability and EB-2 National Interest Waiver (NIW), allow self-sponsorship. This means eligible individuals can initiate their green card process independently without the need for an employer sponsor.
Navigating the H-1B visa process and the transition to permanent residency can be complex and requires careful planning to ensure compliance with immigration laws. Consult with our H-1B work visa attorney to explore your options and create a personalized strategy for your green card journey. Reach out today to discuss your case and take the next step toward your immigration goals.
H-1B Visa Lottery
Each fiscal year, the H-1B classification has a numerical limit of 65,000 new H-1B work visas. Additionally, 20,000 H-1B work visas are available to H-1B applicants with U.S. master’s degrees or above. Because each year there are more H-1B applications than visas available, USCIS conducts an annual H-1B visa lottery. The selected H-1B petitions can proceed to the H-1B visa application stage.
It is important to note that there are some exceptions to the H-1B visa lottery. If you have already been selected in the lottery in the previous year(s) and are holding an H-1B status, you likely do not need to participate in the H-1B visa lottery again. Also, H-1B beneficiaries who are petitioned by or employed at higher education institutions or their associated or related nonprofit entities, nonprofit research organizations, or government research agencies are not subject to H-1B numerical restriction.
To play in the H-1B visa lottery, the employer first must register the H-1B beneficiary with USCIS during the open period. Usually, USCIS conducts the lottery in March and notifies those selected. Typically, the employer has 90 days to prepare and submit an H-1B visa application.
New H-1B Visa
U.S. immigration laws presently limit the number of new H-1B visas to 65,000 annually. Another 20,000 visas are available to those with advanced degrees from U.S. colleges. Because there are more applicants than H-1B visas available, companies are required to register with USCIS and play in an annual H-1B visa “lottery.” Foreign nationals who are selected in the H-1B lottery will be counted towards the H-1B visa cap and will be allowed to apply for H-1B visa.
If you have never been counted towards the H-1B visa cap and your employer is a cap-subject employer (i.e. the employer is not exempt from the H-1B visa limitations), you will need to be selected in the lottery in order to apply for the visa.
Beneficiaries who are not chosen in the lottery cannot proceed with the H-1B visa application.
H-1B visas are not subject to an annual H-1B visa cap: Not all applicants are subject to an annual H-1B visa cap. H-1B applications filed by higher education institutions, non-profit entities affiliated with such educational institutions, and some non-profit research organizations are excluded from the 65,000 visa quota. As a result, cap-exempt petitions can be filed throughout the year and are effective upon approval (as opposed to new cap-subject petitions, which are effective on the start date of the next fiscal year–October 1).
H-1B Visa Stamp
If you obtained your H-1B visa status while present in the U.S., you do not need to apply for a visa stamp unless you travel abroad. H-1B visa stamping refers to the process in which you apply for an H-1B visa stamp at a consulate abroad. If approved, the H-1B visa stamp will be placed in your passport. An H-1B visa stamp is required to enter the United States.
H-1B visa stamping process:
- Prepare and submit a DS-160 application.
- Complete application payment and schedule the appointment.
- Appear for the interview and submit supporting documents.
H-1B Visa Cost
The cost to apply for an H-1B visa will usually include attorney’s legal fees and government filing fees.
Attorney’s H-1B Visa Fees:
The attorney’s fee to prepare an H-1B petition from start to finish can typically range between $3,500 and $4,000, depending on complexity. However, if USCIS issues a Request of Evidence (RFE), the employer should anticipate additional attorney’s fees to cover the time to respond to the RFE.
USCIS H-1B Filing Fees:
When filing an H-1B visa petition, understanding the fee structure is crucial, as costs vary depending on the type and size of employer and the specifics of the petition. Below is a breakdown of the fees as of January 2025:
I-129 Petition Fee:
- Regular Petitioners: $780 (paper filing) or $730 (online filing)
- Small Employers or Nonprofits: $460
Additional H-1B Fees:
Asylum Program Fee:
- Regular Petitioners: $600
- Small Employers: $300
- Nonprofits: Exempt
Fraud Prevention and Detection Fee:
- Applicable for first-time H-1B petitions or transfers to a new employer.
- Fee: $500
Public Law 114-113 Fee (For Large Employers):
- Employers with 50 or more U.S.-based employees, where over 50% are on H-1B or L-1 status: $4,000
American Competitiveness and Workforce Improvement Act (ACWIA) Fee:
- Employers with 26 or more employees: $1,500
- Employers with 25 or fewer employees: $750
- Exemption: Nonprofit institutions and certain other categories under the H-1B Data Collection and Filing Fee Exemption Supplement.
For further guidance on the H-1B filing process and determining the fees applicable to your specific case, consult a licensed immigration attorney and refer to the official USCIS H-1B Specialty Occupations page.
Optional H-1B Visa Fees – Premium Processing:
- Those interested in speeding up the H-1B petition adjudication process may request premium processing from USCIS. The premium processing fee is an additional $2,805 but will ensure the USCIS reviews the H-1B petition within 15 business days.
- Another possible cost is when the H-1B principal applicant and family members apply for H-1B or H-4 visa stamps at a consulate abroad. They will need to pay the applicable DS-160 visa fees.
Alternatives to H-1B Visa
There are numerous alternatives to the H-1B visa. Some of the H-1B visa alternatives include O-1 extraordinary ability visa, L-1 intracompany transferee visa, E-2 treaty investor or E-1 treaty trader visas, J1 visas, TN visas, and E-3 visas for Australian Specialty Occupation Workers.
The O-1A visa is a nonimmigrant work visa established for those with extraordinary abilities and achievements in the fields of science, education, business, or athletics. Other categories are available within the O-1B category for persons who have demonstrated remarkable performance and achievements in the arts, motion picture, or television industries. The petitioning employer in the United States would be required to submit evidence that the employee fits the O-1 visa standards.
For experienced experts in their area, the O-1A visa might be a good option because it is not cap-subject. Therefore, there are no limitations on visa numbers available annually. Also, the O-1 visa has no restriction on the number of maximum extensions.
L-1 Intracompany Transferee Visa
The L-1A or L-1B visa choices are appropriate for foreign organizations with offices in the United States that want to temporarily relocate personnel to the US.
The petitioning company must demonstrate that the beneficiary has worked for its overseas office/branch or subsidiary for at least one full year in the last three years as a manager, executive, or employee with specialized knowledge. While there is a maximum number of extensions allowed for L1 visas, there are no numerical limitations and no H-1B lottery.
E-3 Visa: Australian Specialty Occupation Workers
The E-3 visa category is reserved for Australian citizens coming to the United States primarily to engage in specialty employment, which must meet similar minimum requirements as the H1-B visa. However, E-3 visa is a lot more flexible because it does not require a lottery, it is typically less competitive compared to the H-1B visa process, and no limit on the number of extensions.
The E-2 treaty investor visa allows people from countries with which the United States has the treaty to come to the United States to build or buy a business that will benefit the US economy.
FAQ
Generally, the initial H-1B visa duration is for 3 years, which can be extended to a total of 6 years. However, when the six years are up, the applicant will be required to spend a year abroad before applying for the H-1B visa again. However, there are certain exceptions to the 6-year-maximum H-1B visa rule. To be able to extend your H-1B visa beyond the maxium six years, you must qualify for one of the few exceptions. Recapture Rule: The H-1B 6-year maximum time is counted only while the H-1B beneficiary is present in the United States. Therefore, the time the H-1B beneficiary spends abroad during those six years can be "recaptured." For example, suppose you spent three months abroad during those six years. In that case, you could request additional three months for your H-1B extension beyond the maximum six years. Pending PERM: Another way to qualify for an H-1B extension beyond six years is if you are a Beneficiary of a PERM application, which has been pending for over 365 days. In this situation, the Beneficiary can extend their H-1B status at 1-year increments until the final decision on the PERM application is issued. Backlogged priority date: Another reason why an H-1B applicant may be able to extend their H-1B status beyond six years is if they are a beneficiary of an approved employment-based I-140 petition, but they are unable to apply for adjustment of status ("green card") because their priority date is backlogged. This scenario will typically allow H-1B applicants to extend their H-1B status in 3-year increments.
The process of applying for an H-1B visa includes multiple steps. First, you need to obtain a job offer from a U.S. employer willing to sponsor you for an H-1B visa. Second, your employer must complete certain steps in order to apply for an H-1B visa. For those who are not already subject to the H-1B cap, the employer will need to register the beneficiary in the H-1B visa lottery and be selected by USCIS. If you are selected in the lottery, the employer will need to fill out Form I-129, Petition for a Nonimmigrant Worker, pay the government filing fees, and provide the supporting documents to USCIS to evidence that the position and the foreign worker meet the H-1B visa requirements. Part of the H-1B application process also requires filing an LCA with the Department of Labor, which attests that the employer met certain labor conditions. Once the employer files the I-129 H-1B petition with USCIS, the employer will receive a receipt with a case number, followed by a decision within the applicable processing time. If the foreign worker is present in the United States, then the employer can request a change of status to H-1B status or an extension of an H-1B status through Form I-129. If the foreign worker is located abroad at the time of the H-1B petition adjudication, then the foreign worker will have to apply for an H-1B visa at a consulate abroad.
H-1B is a temporary work visa that requires a US job offer. Furthermore, the sponsoring US employer must initiate the process by filing the H-1B visa petition with USCIS. Unfortunately, the foreign national employee cannot petition for an H-1B visa on their own. Therefore, you will require sponsorship for an H-1B employment visa.
The H-1B visa is nonimmigrant in nature. This means that it does not allow its holder to remain in the United States permanently. Therefore, once the H-1B visa status expires, the H-1B Beneficiary must either depart the United States, ask for an H-1B extension, or change status to a different type of visa category. If the H-1B worker remains in the United States after the H-1B status expires and does not take proper action, the person likely loses lawful status and could be eventually deported.
H-1B visa denial can happen at any stage of the application process. The most common stage of the process where a denial could occur is the I-129 petition. The H-1B I-129 petition aims to establish that both the employer and employee satisfy the H-1B eligibility requirements. Therefore, errors in the I-129 application or ineligibility can lead to an H-1B denial. Some of the common H-1B visa denials are: • H-1B visa petitioner could not establish that the position meets the specialty occupation criterion. • H-1B visa petitioner failed to establish an employer-employee relationship necessary for the successful approval of the visa. • H-1B visa beneficiary does not possess the necessary academic qualifications. For example, if the beneficiary doesn't hold a degree relevant to the specialty occupation. • H-1B beneficiary will work off-site where the H-1B petitioner will not have control over their day-to-day duties. • H-1B beneficiary failed to maintain their lawful status.
Dedicated H-1B Work Visa Attorney Services
Navigating the H-1B visa process can be challenging, but our dedicated H-1B visa attorney is here to ensure a smooth and efficient experience for U.S. employers and visa applicants. We provide comprehensive support tailored to meet your needs, including:
- Filing the Labor Condition Application (LCA).
- Preparing and submitting Form I-129.
- Drafting detailed and persuasive H-1B petition support letters.
- Crafting strong responses to Requests for Evidence (RFEs).
With extensive experience handling H-1B visa petitions, we focus on timely preparation and meticulous attention to detail to maximize the chances of approval. Whether you’re filing a new petition or navigating an RFE, our H-1B visa attorney will guide you through every step of the process. Contact us today to get started on your path to a successful H-1B visa petition.
HOW CAN WE HELP?
The Law Offices of Victoria V. Kuzmina provide US Immigration services to clients in 50 states and worldwide. If you need help or have questions about an immigration matter, please contact us by phone or email to set up a consultation with our immigration attorney.