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H1B - Skilled International Worker Visa
- Purpose: Allows current F-1 students to extend their student status without leaving the U.S.
- Process: Typically involves updating the I-20 form with your Designated School Official (DSO) and filing with USCIS if necessary.
- Purpose: Converts a visitor status (B-1 for business or B-2 for tourism) to student status to begin or continue education in the U.S.
- Process: Requires filing Form I-539, an explanation letter, acceptance to a U.S. school, an I-20 form, and paying the SEVIS fee ($350).
- Purpose: Changes status from a student to a temporary worker, allowing full-time employment in the U.S.
- Process: Typically requires an employer to file a petition for the H-1B visa on your behalf. Once approved, the change of status can be activated within the U.S.
- Purpose: Converts J-1 status (used for exchange visitors) to F-1 status for students who wish to continue their education in the U.S.
- Process: Requires filing Form I-539, providing a valid reason for the change, and demonstrating continued eligibility for F-1 status.
- Purpose: Allows those on an H-1B work visa to change to visitor status if they no longer wish to work but want to remain in the U.S. temporarily.
- Process: Involves filing Form I-539, along with an explanation letter detailing the reason for the change, and paying the required fees.
- Purpose: Converts L-1 status (used for employees transferred within a company to the U.S.) to F-1 status to pursue education.
- Process: Similar to other student visa conversions, it requires filing Form I-539, an explanation letter, a school’s I-20 form, and payment of the SEVIS fee.
The H1B visa serves as an essential bridge for international graduates aiming to forge a new life in the United States. The journey encompasses securing a sponsorship, adhering to visa regulations, triumphing in the visa lottery, and ultimately, pursuing permanent residency. Along this path, numerous obstacles may arise, exacerbated at times by the fluctuating economic and political landscapes.
How do you steer through these tumultuous immigration waters? What avenues are available if the H1B visa eludes you? What triggers Requests for Evidence (RFEs) throughout the submission process, and how can you effectively address them? And, if faced with job loss while on an H1B visa, is it truly the end of your American dream?
Rest assured, we're here to guide you through every question and challenge, offering unwavering support throughout your immigration journey.
What is an H1B Visa?
The H1B visa program was established in 1990 as part of the Immigration Act, providing U.S. employers with a pathway to hire foreign workers who possess specialized skills in areas such as engineering, information technology, medicine, education, and more.
An H1B visa allows individuals to work and live in the United States for a specific period, typically up to six years. The program is designed to attract highly skilled professionals from around the globe, bolstering the U.S. economy and enabling U.S. employers to address shortages of qualified domestic workers by hiring international talent.
Certain institutions, including higher education establishments, their affiliated entities, non-profit research organizations, and government research institutions, are exempt from the annual cap on H1B visas. This exemption allows them to apply for Non-Cap H1B workers without being subject to the numerical limitations.
However, after six years on an H1B visa, the visa holder must transition to another status—such as EB-2, EB-3, or another type of work visa—or leave the United States.
Note: It's essential to understand that H1B status and the H1B visa are not identical. H1B status refers to your legal authorization to work in the U.S., while the H1B visa is required for legal entry and exit from the country. After being selected in the H1B lottery and receiving approval, you gain H1B status. However, if you plan to travel internationally and return to the U.S., you must apply for an H1B visa at a U.S. consulate abroad.
This distinction is why some individuals, once approved for H1B, can continue working in the U.S. without obtaining the visa, provided they do not plan to travel internationally. Not having an H1B visa stamped in your passport is generally not a concern if there are no immediate international travel plans.
H1B Eligibility
Before applying for an H1B visa, it's essential to ensure that you meet the necessary eligibility criteria:
Educational Qualifications
To qualify for an H1B visa, you must hold at least a bachelor’s degree in a specialized field such as engineering, computer science, medicine, or a related area. This academic background is crucial as it demonstrates your expertise in your chosen field.
Job Offer from a U.S. Employer
Simply having a degree is not sufficient. You must also secure a job offer from a U.S.-based employer who is willing to sponsor your H1B visa application. The job offer must align with your field of study and reflect the specialized skills you bring to the position.
Labor Conditions Obligations
The sponsoring employer has specific responsibilities to support your H1B visa application. They must:
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Demonstrate a Shortage of Qualified U.S. Workers: The employer must prove that there is a significant shortage of qualified U.S. professionals available for the specific role you are filling.
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Ensure Fair Labor Practices: The employer must also ensure that hiring a foreign national will not negatively impact the wages or working conditions of U.S. workers in similar positions.
Relevant Skills and Experience
Beyond educational qualifications, you need to possess practical experience and skills that directly match the job’s requirements. This ensures that you are well-equipped to perform the duties associated with the position.
Meeting these criteria allows you to move forward with your H1B visa application through the United States Citizenship and Immigration Services (USCIS). The process begins with your employer filing a labor condition application to initiate the visa process.
Additionally, it’s important to note that the H1B visa is subject to an annual cap of 65,000 visas. This means that each fiscal year, USCIS issues no more than 65,000 H1B visas. However, there is an additional 20,000 visas reserved for applicants who hold a master’s degree or higher from U.S. institutions, provided these degrees were obtained from non-profit universities. This gives those with advanced degrees a better chance of securing an H1B visa.
H1B Visa Lottery: Evolution and Statistics
From No Lottery to the Lottery System
Before 2020, the H1B application process was relatively straightforward but came with significant costs. Employers had to submit H1B applications for their employees and pay substantial application fees upfront. The United States Citizenship and Immigration Services (USCIS) would then review the submitted documents to determine if the applicant was eligible for an H1B visa. During this time, there was no lottery system in place—every eligible application was processed as long as it was submitted within the designated timeframe.
However, starting with the 2021 fiscal year, USCIS implemented a new process in response to the overwhelming number of H1B applications, which consistently exceeded the annual visa cap. Employers were now required to register applicants online, pay a $10 registration fee, and then wait for the lottery results before formally submitting the full application documents. This lottery system was introduced to manage the high volume of applications more efficiently.
Each year since 2021, whenever the number of applications surpasses the set visa limit, USCIS conducts a random selection process, often referred to as the "H1B lottery." Only those applicants who are selected through this lottery are allowed to proceed with submitting a formal H1B application.
H1B Lottery Statistics
The following table outlines the number of applicants, qualified applicants, selected applicants, and the H1B selection rate for the past four fiscal years:
| Fiscal Year | Total Applicants | Qualified Applicants | Selected Applicants | H1B Selection Rate |
|---|---|---|---|---|
| 2021 | 274,237 | 269,424 | 124,415 | 45.37% |
| 2022 | 308,613 | 301,447 | 131,924 | 42.75% |
| 2023 | 483,927 | 474,421 | 127,600 | 26.37% |
| 2024 | 780,884 | 758,994 | 188,400 | 24.13% |
These statistics highlight the increasing competition and the decreasing selection rates as the number of H1B applicants continues to rise each year. The lottery system has become a critical aspect of the H1B visa application process, with selection rates reflecting the growing demand for H1B visas among skilled foreign workers.
Who Can Sponsor Your H1B Visa?
In theory, any U.S.-based employer with a valid IRS Tax ID Number can sponsor an H1B visa. This sponsorship involves the employer filing a petition on behalf of the prospective employee, which is a key requirement in the H1B visa application process.
However, it's important to note that self-sponsorship is not allowed for an H1B visa. This means that if you are an entrepreneur or have aspirations to start your own business, you cannot be the sole owner of the company sponsoring your visa. Furthermore, you must be able to demonstrate that your role within the company includes a level of employment independence—meaning your position must allow for the possibility of being terminated, just like any other employee ("fireable"). This ensures that the employer-employee relationship is legitimate and meets the requirements set forth by U.S. immigration laws.
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H1B Application
Applying for an H1B visa involves several crucial steps, typically organized into five main stages:
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Securing Institutional Approval: First, ensure that your U.S.-based employer is willing and eligible to sponsor your H1B visa. The employer must confirm that the position you are being offered requires specialized skills, which you possess.
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Verifying the Occupation: The job you are applying for must qualify as a specialty occupation, meaning it requires a higher level of expertise and education, typically at least a bachelor’s degree in a relevant field.
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Filing a Labor Condition Application (LCA): Your employer must file an LCA with the Department of Labor (DOL). This document verifies that your employment will not negatively impact the wages or working conditions of U.S. workers in similar positions.
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Final Submission: Once the LCA is certified, your employer will submit the H1B petition (Form I-129) to the United States Citizenship and Immigration Services (USCIS). This step includes all necessary documentation and fees.
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Possible Request for Evidence (RFE): If USCIS requires additional information or documentation to process your petition, they may issue an RFE. Responding accurately and promptly to an RFE is critical to avoid delays or denials in your application.
These stages collectively form the H1B application process, with each step being crucial to securing your visa.
- STEP 1: Securing Institutional Approval
- STEP 2: Verifying the Occupation
- STEP 3: Filing a Labor Condition Application (LCA)
- STEP 4: Final Submission
- STEP 5: Possible Request for Evidence (RFE)
Find an Employer Willing to Sponsor Your H1B Visa
Securing an H1B visa begins with finding an employer who is willing to sponsor you. While many large corporations such as Amazon, Google, and Microsoft are well-known for sponsoring H1B visas, there are several additional ways to find potential employers:
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USCIS H-1B Employer Data Hub: This official USCIS database allows you to research whether your target companies have sponsored H1B visas in the past. You can also view the average salaries these companies offer to their H-1B employees, helping you gauge your earning potential.
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Chrome Add-Ons like AiTou and Ultimate H1B Sponsor Checker: These tools can help you discover companies registered with E-Verify that have a proven history of H1B sponsorship. These add-ons make it easier to identify potential employers that are more likely to sponsor your visa.
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Non-Profit and Research Institutes: If you're interested in working with NGOs or in academic roles at universities, you’re in luck. Many non-profit organizations and research institutions can sponsor H1B visas without being subject to the annual visa lottery. This "cap-exempt" status means that you can apply for an H1B visa at any time during the year, significantly increasing your chances of success.
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H1B Salary Database: Understanding that there is a minimum salary requirement for H1B visa applicants is crucial. Generally, the higher your salary, the better your chances of passing the assessment if selected in the lottery. This database can provide insights into the salary standards for various roles, helping you align your expectations and negotiate effectively with potential employers.
Electronic Registration
The H1B registration process requires the sponsoring company to submit an online registration on behalf of the applicant and pay a $10 fee. This registration is the preliminary step before filing an H1B visa petition, contingent upon the applicant's selection in the H1B lottery.
During this stage, the employer only needs to input basic information about the applicant—there's no requirement to send physical documents or forms to USCIS at this point. The registration submitted by the sponsoring company is what enters the applicant into the H1B lottery.
Once the employer submits the H1B registration, they can print a confirmation receipt, which includes a "Beneficiary Confirmation Number." This number is sometimes shared with the employee, allowing them to check their H1B status directly on the USCIS platform. However, since H1B registration is often handled by company lawyers or external legal service providers, employees may not receive this number immediately and might need to wait for their employers to inform them if they have been selected in the H1B lottery.
Submitting a Labor Condition Application (LCA)
As an applicant, the Labor Condition Application (LCA) process is typically handled by your employer, so you don't need to worry too much about it. However, if your employer is inexperienced with H1B visa applications—perhaps you're the first foreign worker they’ve hired—you might need to assist them by researching and providing guidance.
Once a U.S. company hires you, they begin the H1B visa application process by submitting the LCA to the Department of Labor (DOL) through the iCERT Portal System. This step is crucial for your H1B visa approval, as it informs the DOL about important job details such as your salary, job location, and working conditions.
By submitting the LCA, your employer certifies that they will pay you a wage that is at least equal to or higher than the prevailing wage for your position in the job's geographic area. They also guarantee that your employment will not negatively impact the working conditions of other employees in similar roles. This certification is an essential part of the labor certification process.
Filing Form I-129
After the LCA is approved, your employer moves on to file the Petition for a Nonimmigrant Worker using Form I-129. This step involves your employer submitting the necessary documentation and paying the required fees to USCIS. Form I-129 is the official petition that formally requests the U.S. government to grant you an H1B visa.
Responding to a Request for Evidence (RFE)
Once Form I-129 and the supporting documents are submitted, the next step is to wait for a response from USCIS, which typically takes a few weeks. In some cases, USCIS may issue a Request for Evidence (RFE), asking for additional documentation or clarification. While receiving an RFE can be concerning, it's important to note that most H1B RFEs are eventually approved. Your employer and legal counsel will need to address the RFE promptly to ensure your application proceeds smoothly.
H1B Backup Plans
If you weren’t selected in the H1B lottery, don't worry—there are several alternative visa options that might work for you. Here’s a breakdown of potential backup plans:
O-1 Visa
The O-1 visa is for individuals with extraordinary abilities in fields such as science, arts, education, business, athletics, or those with significant achievements in the motion picture or television industry.
- Pros:
- Unlimited Issuance: No cap on the number of visas issued.
- Diverse Professional Scope: Covers a wide range of professional fields.
- Lenient Employer Requirements: More flexible criteria for employers.
- Indefinite Extensions: Can be renewed indefinitely.
- Prompt Work Start: Allows you to start working immediately upon approval.
- Cons:
- High Difficulty Level: It's one of the most challenging employment-based visas to acquire.
- Advance Preparation Needed: Often requires professional assistance.
- Specific Field Requirement: Must be in a specialized field, with higher chances of approval in arts and entertainment.
- Employer Sponsorship Required: You still need an employer to sponsor your visa.
L-1 Visa
The L-1 visa is for intracompany transfers, allowing multinational companies to temporarily relocate employees from their foreign offices to the U.S.
- Pros:
- L2 Visa for Families: Dependents can apply for the L2 visa, leading to work authorization.
- Dual Intent: Allows you to start the immigration process while on this visa.
- High Approval Rate: Proper documentation typically results in a high approval rate.
- Premium Processing: Available for expedited service.
- Cons:
- Time Restrictions: L-1A is valid for up to 7 years; L-1B is valid for up to 5 years.
- Annual Renewal: Requires yearly renewal.
- Employer-Specific: Tied to your current employer, limiting transferability.
- Potential Pay Cut: May result in a lower salary if transferred from a foreign office.
EB-2 NIW (National Interest Waiver)
The EB-2 visa is for individuals with advanced degrees or exceptional abilities. The NIW allows applicants to bypass the labor certification process if their work benefits the national interest.
- Pros:
- Faster Process: Quicker than labor certification.
- Pathway to Green Card: Puts you on track for permanent residency.
- Cons:
- High Standards: Typically requires a PhD, making it less suitable for most international students.
- Slow Processing Time: Processing can be lengthy.
Day 1 CPT
For those not selected in the H1B lottery, Day 1 CPT programs allow you to enroll in a U.S. educational program (usually at the master’s level or higher) and maintain your legal status under an F1 visa. These programs integrate work experience into the curriculum from the start, allowing you to apply for CPT immediately.
- Pros:
- Ease of Application: Simple and user-friendly process.
- Fast Track Option: Offers can be secured within a week.
- OPT Opportunities: Potential for Optional Practical Training (OPT) after program completion.
- Cons:
- Selecting Legitimate Universities: Ensure the program is legitimate and accredited.
- Tuition Fees: You must pay tuition for the program.
- Academic Requirements: Maintain a GPA of at least 3.0 to remain eligible for CPT.
H1B Backup Plans Compared
| Visa Type | Pros | Cons |
|---|---|---|
| O-1 | Unlimited visas, diverse fields, lenient employer criteria, indefinite renewals, immediate work start | High difficulty, needs professional prep, specific field requirement, employer sponsorship |
| L-1 | Family visa options, dual intent, high approval, premium processing | Time restrictions, yearly renewal, employer-specific, potential pay cut |
| EB-2 NIW | Faster process, green card pathway | High standards (PhD), slow processing |
| Day 1 CPT | Easy application, fast track, OPT opportunities | Legitimacy concerns, tuition costs, academic GPA maintenance |
These options provide viable alternatives if your H1B application didn’t go through, helping you maintain legal status and continue working in the U.S.
How to Prevent and Manage an H1B RFE
What is an RFE?
A Request for Evidence (RFE) is a formal request from USCIS (U.S. Citizenship and Immigration Services) for additional documentation to support your visa application. Receiving an RFE doesn’t necessarily mean your application will be denied. Instead, it gives you an opportunity to provide further evidence that meets the criteria for the visa you're applying for, such as an H1B visa.
H1B RFE Rate and Recent Trends
The frequency of RFEs has fluctuated over the years, often influenced by changes in the U.S. administration. For example, in FY 2017, 21.4% of cases required an RFE, which increased to 40.2% by FY 2019. However, recent trends have shown a decline, with the rate dropping to 10.5% in FY 2023. Despite the drop, the importance of thoroughly preparing your application to avoid an RFE remains crucial.
What are the Chances of H1B Approval After an RFE?
Although receiving an RFE might seem daunting, the approval rate for applications post-RFE remains relatively high. In FY 2023, 79.8% of cases that received an RFE were ultimately approved. This underscores the importance of addressing all issues raised in the RFE comprehensively.
Common Reasons for H1B RFEs
- Specialty Occupation: The job must meet the criteria for a specialty occupation, which requires a specific educational background.
- Specialty Occupation and Level 1 Wage Contradictions: Discrepancies between job requirements and wage levels can trigger an RFE.
- Beneficiary Qualifications: The applicant must have the necessary qualifications for the position.
- Maintenance of Status: Maintaining proper visa status throughout your stay is critical.
- Employer-Employee Relationship: There must be a clear relationship between the employer and employee, including the employer’s control over the employee’s work.
- LCA Corresponds to Petition: The Labor Condition Application (LCA) must accurately reflect the details in the H1B petition.
- Mismatched Information on VIBE System: Inconsistencies between the application and the VIBE system data can result in an RFE.
What Does an RFE Look Like?
An RFE typically includes:
- The Facts: An overview of your original application.
- The Law: References to relevant legal requirements.
- Evidence Submitted: A list of documents already provided.
- Evidence Lacking: Specific additional documents requested.
- Deadline: The timeframe for submitting the requested evidence.
5 Steps to Take After Receiving an H1B RFE
- Thoroughly Read the RFE: Understand the additional information USCIS needs.
- Understand Your Odds: An RFE isn’t a denial; it’s an opportunity to strengthen your application.
- Gather Comprehensive Documentation: Collect all necessary documents, including expert opinions and letters from relevant parties.
- Consult an Immigration Attorney: Professional legal advice can be crucial in effectively responding to an RFE.
- Check Submission Details: Ensure your response is accurate and submitted by the deadline.
How to Prevent and Manage an H1B RFE
Understanding the H1B Grace Period
The H1B visa is a non-immigrant visa category for highly educated foreign professionals in specialty occupations requiring at least a bachelor’s degree, such as those in mathematics, engineering, and technology. Initially valid for three years, the H1B can be extended up to six years. However, to maintain your H1B status, you must remain employed by your sponsoring employer.
Unfortunately, job security is not guaranteed, even under an H1B visa. Employers may need to downsize their workforce for various reasons, such as financial constraints, mergers, or a shortage of work. If you are laid off, your visa status is directly impacted.
Once your employment ends, you have a 60-day grace period to secure new employment, change your status, or leave the United States. This two-month window allows you to adjust your situation, providing time to explore alternative options to remain in the country legally.
When the 60-Day Countdown Starts
The 60-day grace period begins the day after your employment officially ends, typically the last day you receive a salary. However, you may have options to extend the time available to secure a new H1B employer or explore other visa options to maintain your legal status.
Note: The start of the grace period is determined by USCIS. Consulting with a lawyer can help ensure you comply with all regulations. Additionally, the 60-day grace period is only valid as long as your I-94 remains current. If your I-94 expires during the grace period, you must leave the U.S. by that date.
Tips for Extending Your Grace Period
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Negotiate Employment Terms: Upon receiving notice of your layoff, approach your HR representative to discuss extending your employment termination date. One option is to request unpaid leave, which keeps you on the payroll without financial impact on your employer. Ideally, request this leave during the second-to-last month of your employment, ensuring you receive payment on your final day. If HR agrees, they should document the unpaid leave and official termination date formally.
- For example, when Uber laid off employees in 2020, they kept foreign workers on payroll for an additional month, effectively extending the grace period to 90 days by delaying the official termination date.
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Utilize FMLA: If your company has over 50 employees, you may qualify for unpaid leave under the Family and Medical Leave Act (FMLA) for up to 12 weeks. Check with HR to see if you can use FMLA before your official termination date.
While employers are not obligated to grant these requests, discussing these options with HR and preparing the necessary documentation can help extend your time to secure a new H1B sponsor, file an I-140 immigrant petition, or change your status to F1, among other possibilities.
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