H-1B Visa Guide: Required Documents, H1B Cap & Alternatives, Checklist for Lawyer

In laymen’s terms, an H-1B visa refers to a type of visa that grants absolute autonomy to foreign nationals to enter the U.S.A for work purposes.

It permits U.S. employers to employ foreign nationals in specialty occupations temporarily. Although, it’s a temporary visa, the dual-intent nature of this visa allows the foreign national to opt for a green card.

The employers and the employees must adhere to the U.S. immigration laws and regulations, USCIS terms and conditions, and Department of Status standards, to ensure a smooth and barrierless stay in the United States.

Besides, the foreign nationals must carry a unique trait or advanced-level skill that will set them apart from others including the local U.S. citizens.

In this guide, we’ll get you over the complete process of getting an H-1B visa along with several intricacies involved.

The process might be overwhelming if you’re a fresher or newly getting in terms with the visa application methods, feel free to consult an immigration attorney. We have one, contact us now.

How to Choose the Best H-1B Lawyer?

Checklist to choose H1B Visa Lawyers

• The most significant criterion that any lawyer you’re considering must fulfill is to be in good standing with a state bar in the United States. Federal law controls U.S. immigration law, therefore, the lawyer can represent you anywhere in the U.S. (with regards to the H-1B visa application) provided the lawyer is in good standing of a state bar.
• Keeping pace with the H-1B visa law and immigration law and trends is quite complex and overwhelming. But if the lawyer you’re considering is an AILA (American Immigration Lawyers Association) member, it’ll be possible as the lawyer then will dedicate a large part of practice to immigration law.
• The lawyer must possess ample experience in assisting clients with H-1B visas. Knowing immigration laws and regulations is pivotal to gaining the confidence of the clients as it reflects the lawyer’s expertise and smartness. Moreover, check on the level of comfort that your potential lawyer provides you with, and smooth communication, as it’ll later determine your future pertained to H-1B visa.
• Before committing to any lawyer, it’s always advised that you confront them about their legal fees whether there’re any hidden charges involved or on what basis they’ll be charging their fees.
• Above all, asking for referrals from your friends, family, or relatives is always one of the best options. Recommendations or referrals can lower the burden of stress and frustration while seeking a good lawyer who can represent your case anywhere in the U.S.

Note: Must consider that no two lawyers or firms provide exactly similar services and you opt for the cheaper one without noticing the lawyer’s caliber, experience, success rate, or previous record. Lest your dream to enter the U.S. for work get shattered in pursuit of cheapness.

H-1B Visa Requirements

The Degree

The degree that serves as the basic necessity to get an H1B visa is a bachelor’s degree or equivalent or higher in a field allied to the job that you’re seeking.

Alternatively, if you’ve experience of twelve or more years and lack a bachelor’s degree, still meet the H-1B requirement without a bachelor’s degree.            However, this isn’t guaranteed and you should consult an H1B immigration attorney to know the exact details.

The Job

Your job must be in a specialty occupation so that your degree is valued and counted as valid. It’s a basic requirement that the beneficiary has an employer-employee relationship with the sponsoring U.S. employer but remember, it isn’t always straightforward. It can raise issues in the case of self-employed beneficiaries.

Nevertheless, one can start a business on an H-1B visa only after meeting this requirement. This can be done by showing that the business can control the beneficiary’s job duties, wages, and employment status.

The specific documentation essential to ascertain an employer-employee relationship will vary depending on the specific circumstances.

However, some common documents that may be helpful include a written employment contract, pay stubs, W-2 forms, tax returns, and letters from the employer or contractor stating that they have the authority to control the beneficiary’s work.

Specialty Occupation

Generally, the minimum qualification to get entry into a U.S. workspace and qualify as a “specialty occupation” is to hold a bachelor’s degree or its equivalent. Other than this, the applicant is expected to meet one of the following requirements:

• Foreign degree equivalent to U.S. bachelor degree.
• Hold a license, registration, or certification.
• Have the required training, education, or work experience.
• Have an employer with an authorized ETA-9035 form, approved Labor Certification Application, and I-129 form.

Labor Condition Application

The employer files LCA on the foreign professional’s behalf. Scroll down to find the attestation required for you to acquire LCA:

• The prevailing wage is commonly given to the one in the same position offered to you in the same geographic vicinity to be offered by your employer as a minimum wage.
• Your employment shouldn’t put another employee into a disadvantageous position in your workplace.
• The employer must provide evidence of no resistance/political movements such as strikes, or protests going on. In short, your employer has to ensure that you’re not replacing any active worker.
• All the presently working employees must be well aware of your employer’s intention behind your entry beforehand.

Job offer

The employer must offer the foreign national a job offer and must possess enough funds to pay him/her post-recruitment.

Required Documents for an H1B Visa Application

H-1B Step-by-Step Process

Citing below all the H-1B visa documents necessary to file an H-1B petition and complete the immigration process:

1. The petitioner must obtain attorney representation or an H-1B lawyer and file a G-28 form.

The G-28 form is a Notice of Appearance and Authorization to Act as an Attorney or Representative in Immigration Matters. It is required for all H-1B petitions filed by an attorney.

2. The U.S. employer must submit Form ETA-9035 (Labor Condition Application) and receive approval.

LCA is a document that the employer must file with the Department of Labor (DOL) to demonstrate that there are no qualified U.S. workers available to fill the position. The LCA must be approved by the DOL before the H-1B petition can be filed.

3. The employer must file Form I-129 (Petition for a Nonimmigrant Worker), filing fee, supplementary documentation, and the approved Labor Certification Application.

The Form I-129 is the petition that the employer files with USCIS to request H-1B status for the beneficiary. The petition must include the beneficiary’s biographical information, education, and work experience, as well as the employer’s job offer and salary information.

4. The I-129 must have a completed H Classification supplement.

It’s a form that is attached to Form I-129, providing additional information about the beneficiary’s job duties and qualifications.

5. The petitioner must ensure proper completion of the H-1B Data Collection and Filing Fee Supplement.

It’s a form generally used to collect information about the employer and the beneficiary, that is further used by USCIS to track the H-1B program.

6. If the petitioner wishes to request Premium Processing, Form I-907 must be completed.

It’s a form that is used to request Premium Processing for an H-1B petition to be processed within 15 days for an additional fee of $2,500.

Why You Might Need an H-1B Lawyer

There are ample numbers of reasons that can pave your path towards a lawyer’s door. The reasons are mostly circumstantial. Some of them are discussed below:

Firstly, few petitioners find H-1B requirements including documentation to be complex and laboring. In that case, an H-1B immigration lawyer will act like a savior who’ll explain every intricate process in detail and ascertain the accurate filing of your application.

Secondly, due to the cut-throat world of the H-1B application process, to ensure that your H-1B application stands out strikingly, you’ll need an H-1B lawyer to heighten the possibility of your application getting selected.

Thirdly, the chances of denials and delays are always high considering the critical scrutiny of every application and hence hiring a H-1B lawyer becomes inevitable as the lawyer can guarantee the smooth processing of your application.

Fourthly, finding a decent job in the U.S. is one of the biggest tasks. A lawyer can be of great help to recommend the best job prospects in the U.S. after closely comprehending your potentialities and skills.

Lastly, keeping up with the trending or ever-changing policies, laws, or regulations of immigration is a bit complex, and so, a lawyer whose basic job demand is to keep pace with such changing policies can assist you.

Note: If you don’t wish to make circumstances become the source of your headache, then do consult us now.

H-1B Cap and Cap-Exempt

There are two caps under the H1B visa- master’s cap and regular cap. The Master’s cap comprises 20,000 slots accessible to those holding advanced degrees, such as a master’s degree or equivalent or higher. In case your petition is rejected in the master’s cap, it’ll be resubmitted to the regular cap that comprises 65,000 slots. Therefore, workers possessing advanced degrees have a higher possibility of being considered in the first instance itself.

However, there’s a way to avoid this H1B cap, that is, to occupy a job for an institute of higher education, a non-profit organization that is in alliance with a government research organization. These employers are exempt from the cap, so they can file H-1B petitions at any time of the year. Moreover, you’ve already been counted against the cap, all successive petitions will be regarded as cap-exempt.

Alternatives to H-1B Visa

Scroll down to find the best alternatives to H-1B visa:

L-1 Visa

Granted to those who’ve worked in a foreign entity (or at least one continuous year during the last three years of employment) affiliated to the central organization based in the U.S. and the latter transfers them to work in the U.S.

Note: The spouse of an L-1 visa holder can seek an L-2 visa and start working in the U.S. after obtaining approval from USCIS.

H-2B Visa

Granted to those willing to work in the U.S. temporarily for not more than one year.

Note: The Department of Homeland Security enlists annually the names of H-2B eligible countries and the H-2B visa holder must belong to one of the enlisted countries.

H-3 Visa

Granted to those seeking training in the U.S. (as the training is unavailable in his/her home country) which will possibly aid the visa holder to pursue a career outside the U.S.

Note:  Two years of stay is granted to the H-3 visa holder and their dependents, including spouses and unmarried children below 21 years of age, can seek H-4 visas to enter the U.S.

J-1 Visa

Granted to those who’re specifically willing to gain expertise on a client or employer’s product.

Note: The dependents of J-1 visa holders, including spouses and unmarried children below 21 years of age, can seek J-2 visas to enter the U.S. and work.

B-1 Visa

Granted to those who’re needed in the U.S. for ‘business activity’ without any remuneration or salary.

Note: This visa holder is stringently barred from working or studying in the U.S.

O-1 Visa

Granted to the “best” among all in a particular field such as art, entertainment, athletics, research, etc.

Note: Those who offer potential services in assistance to O-1 nonimmigrants can seek O-2 visas to enter the U.S. and work.

Conclusion

Contact H1bvisajobs.com today for a free H-1B visa consultation. Besides, we’ll converse about your preferences and priorities and suggest your best strategies depending upon our immigration lawyers’ nearly cent percent success rate.