Navigating the U.S. immigration system can be complex, especially when it comes to employment-based visas like the H-1B. The H-1B visa is a highly sought-after work visa that allows U.S. companies to hire foreign professionals in specialty occupations. This visa is particularly popular among technology companies, research institutions, and other businesses requiring specific expertise. But what does it take to successfully apply for an H-1B visa? What are the costs, rules, and eligibility criteria? In this comprehensive guide, we’ll answer these questions and provide all the essential details you need to understand the H-1B visa process.
How Much Does an H-1B Application Cost?
One of the most frequently asked questions about the H-1B visa process is the cost involved. The cost of an H-1B application varies depending on several factors, such as the size of the employer, the type of application (new, renewal, or transfer), and whether the employer is considered a dependent employer. As of 2024, the primary costs for filing an H-1B petition include:
- Basic Filing Fee: $460
- ACWIA (American Competitiveness and Workforce Improvement Act) Fee: $750 for employers with 25 or fewer full-time employees; $1,500 for employers with more than 25 employees.
- Fraud Prevention and Detection Fee: $500
- Optional Premium Processing Fee: $2,500
- Public Law 114-113 Fee: $4,000 (for employers with more than 50 employees, where more than 50% are H-1B or L-1 visa holders)
Additional fees may apply for legal representation, filing amendments, or submitting petitions outside of the standard processing time. Employers are typically responsible for these costs, but the situation can vary.
Are Employees Allowed to Pay the Fees?
The question of whether employees can pay H-1B visa fees is complex and largely dependent on the specifics of the case. Generally, the employer must cover the primary H-1B fees, such as the basic filing fee, the ACWIA fee, and the fraud prevention fee. However, employees may pay for optional services, such as premium processing, if they choose to expedite their application.
According to U.S. Department of Labor regulations, employers cannot require or accept reimbursement from an H-1B employee for fees that are required to be paid by the employer. If an employer deducts these fees from an employee’s wages, it could lead to legal consequences and jeopardize the validity of the H-1B petition.
Can Multiple Employers Submit Registrations for Me?
Yes, multiple employers can submit H-1B registrations for the same individual, provided that each employer has a legitimate job offer and the intent to employ the beneficiary in a specialty occupation. However, this situation is subject to scrutiny by the U.S. Citizenship and Immigration Services (USCIS) to prevent any abuse of the H-1B program.
Employers should be careful to ensure that their applications are genuine and not merely an attempt to increase an individual’s chances in the lottery. If the USCIS detects that multiple registrations are being filed by related entities or companies without genuine job offers, all associated petitions may be denied.
Do I Have to Be Awarded a Degree Before H-1B Online Registration?
To qualify for the H-1B visa, you must hold at least a bachelor’s degree or its equivalent in the field related to the offered job. However, you do not necessarily have to have your degree awarded before the H-1B registration. What matters is that by the time the petition is filed (not the registration), you have met the degree requirement.
Employers must ensure that all required educational documentation is available at the time of filing the H-1B petition. This may include transcripts, diplomas, and an educational evaluation if the degree was earned outside the United States.
Can I Apply for H-1B with a Relatively Low Salary?
The H-1B visa program requires that the employer pay the H-1B worker the higher of the actual wage paid to similarly employed workers at the worksite or the prevailing wage for the occupation in the area of employment. Therefore, applying for an H-1B visa with a relatively low salary may not meet the minimum requirements set by the Department of Labor.
If an employer offers a salary below the prevailing wage, the H-1B petition may be denied. The prevailing wage is determined by the specific occupation, the geographic location, and the level of experience required for the position.
Will I Be Eligible for the Cap-Gap Extension?
The Cap-Gap Extension is available for F-1 students who are transitioning to an H-1B visa. If your employer files an H-1B petition and requests a change of status before your F-1 status expires, and if your OPT (Optional Practical Training) ends between April 1 and September 30, you may be eligible for the Cap-Gap Extension.
This extension allows you to remain in the U.S. and continue working until October 1, when your H-1B status begins, provided your petition is approved. It’s important to note that this extension does not apply to STEM OPT extensions or if your H-1B petition is denied or rejected.
Is It Necessary to File an OPT Extension Application When Preparing to Apply for an H-1B Visa?
It is not mandatory to file for an OPT extension when preparing to apply for an H-1B visa. However, it may be beneficial for those whose OPT is expiring and who are waiting for the H-1B lottery results. Filing for an extension can provide a backup plan if your H-1B petition is not selected or approved.
Will an Expiring Passport Affect My H-1B Application?
An expiring passport may affect your H-1B application, especially if it is close to the expiration date. The USCIS typically requires that your passport be valid for at least six months beyond your intended period of stay. If your passport is about to expire, it is advisable to renew it before filing the H-1B petition to avoid any delays or complications in processing.
Can I Qualify for an H-1B Visa if My Job Is Directly Related to My Minor Instead of My Major?
While it is uncommon, you may still qualify for an H-1B visa if your job is directly related to your minor rather than your major, as long as you can demonstrate that you have the necessary education, skills, and qualifications required for the position. The USCIS considers whether your educational background, including any minors, is appropriate for the specialty occupation.
Employers may need to provide additional documentation to show that your education aligns with the job requirements, and an educational evaluation may be needed.
Can I Apply for an H-1B If I Work for a Consulting Company and Am Assigned to a Client Company?
Yes, you can apply for an H-1B visa if you work for a consulting company and are assigned to a client company. However, the consulting company must demonstrate that it has a valid employer-employee relationship with you throughout your H-1B employment period. This often involves providing evidence of the right to control your work at the client site, including regular evaluations, the ability to hire and fire, and ensuring that you will return to the consulting company after the assignment ends.
Can Companies That Are Not E-Verified Sponsor H-1B Visas?
Yes, companies that are not E-Verified can sponsor H-1B visas. E-Verify is an electronic system that employers can use to confirm the employment eligibility of their employees. While participation in E-Verify is mandatory for some employers, it is not a requirement for sponsoring an H-1B visa.
However, E-Verified employers can offer certain benefits, such as extending the work authorization of STEM OPT students, which might make them more attractive to potential employees.
What’s the Difference Between Change of Status (COS) and Consular Processing (CP) for Activating H-1B Status?
Change of Status (COS) and Consular Processing (CP) are two methods for activating H-1B status. COS allows you to change your current non-immigrant status (like F-1 or J-1) to H-1B without leaving the United States. Once your COS is approved, you can start working in H-1B status from the date specified on your approval notice.
Consular Processing (CP), on the other hand, requires you to leave the U.S., visit a U.S. consulate or embassy abroad, and obtain an H-1B visa stamp in your passport. You can then return to the U.S. in H-1B status.
The choice between COS and CP depends on individual circumstances, including your travel plans, current visa status, and any potential restrictions.
Is Part-Time H-1B Treated Differently from Full-Time H-1B During Adjudication?
Part-time H-1B petitions are adjudicated with the same scrutiny as full-time H-1B petitions. The key difference lies in the documentation required to establish that the wage offered meets the prevailing wage for the number of hours worked. Employers must provide clear information about the work schedule and ensure that the pro-rated salary aligns with the prevailing wage.
Part-time H-1B workers are subject to the same rules regarding compliance, employer-employee relationships, and work location as full-time workers.
Do I Have to Wait for H-1B Approval in the U.S. Before Traveling Abroad?
If you have applied for a Change of Status to H-1B and your current visa is still valid, you can travel abroad, but it is generally not recommended. If you leave the U.S. while your Change of Status is pending, your COS request will be considered abandoned, and you will need to use Consular Processing to activate your H-1B status. In contrast, if your H-1B has already been approved and you need to travel, you must obtain an H-1B visa stamp at a U.S. consulate before re-entering the U.S.
Do I Have to Wait for H-1B Approval Before Applying for H-4 for My Spouse?
No, you do not have to wait for H-1B approval before applying for an H-4 visa for your spouse. The H-4 visa is available to the spouses and dependent children of H-1B visa holders. However, your spouse will only be eligible for the H-4 visa if your H-1B petition is approved, so timing the applications together can be beneficial.
Is It a Must to Complete the ‘J-1 Two-Year Home Residency Requirement’ Waiver Application Before the H-1B Application?
If you have been on a J-1 visa and are subject to the two-year home residency requirement, you must either complete this requirement or obtain a waiver before applying for an H-1B visa. Without satisfying this requirement, you are ineligible for the H-1B status or other non-immigrant visas.
Can H-1B Visa Holders Work for Any Company They Choose?
No, H-1B visa holders cannot work for any company they choose. They are authorized to work only for the employer who sponsored their H-1B visa. If an H-1B holder wants to change employers, the new employer must file an H-1B transfer petition and receive approval from the USCIS before the individual can start working for them.
When an H-1B Employee Leaves the Company, Is the Employer Required to Notify the USCIS?
Yes, when an H-1B employee leaves the company, the employer is required to notify the USCIS. Failure to do so could result in the employer being liable for continued wage payments and other obligations under the terms of the Labor Condition Application (LCA).
Is an Employer Allowed to Lower an H-1B Worker’s Wage?
No, an employer is generally not allowed to lower an H-1B worker’s wage below the amount specified in the H-1B petition and LCA. If the employer wishes to reduce the employee’s wage, they must file an amended H-1B petition with the USCIS, demonstrating that the new wage still meets the prevailing wage for the occupation and location.
Can Employers Reduce an H-1B Employee’s Working Hours if There’s Not Enough Workload?
Employers can reduce an H-1B employee’s working hours only if they file an amended petition with the USCIS, explaining the reason for the change and ensuring that the reduced hours meet the prevailing wage requirements. The H-1B worker must still be paid at least the pro-rated wage for the hours worked.
Will the Proposed Fee Changes for H-1B Application Be Implemented for FY2025?
As of now, the proposed fee changes for the H-1B application have not yet been finalized for FY2025. However, it is likely that these changes will come into effect once the final rule is published. Employers and applicants should stay updated with the latest announcements from the USCIS to prepare for any changes.
Will the New H-1B Proposal Published on October 23, 2023, Be Effective for FY2025?
The new H-1B proposal published on October 23, 2023, aims to improve transparency and efficiency in the H-1B program. It is expected to become effective for FY2025, but its exact implementation date will depend on the completion of the rule-making process. Stakeholders should monitor USCIS updates for confirmation of when the proposal will take effect.
When Will the H-1B Electronic Registration Open This Year?
The H-1B electronic registration usually opens in early March each year. Employers and representatives should prepare for the registration process well in advance to ensure all necessary information is ready and submitted within the registration window.
In the H-1B Online Registration Process, Is It Necessary for Employers to Participate?
Yes, employers must participate in the H-1B online registration process to sponsor an H-1B visa. The process requires the employer or their representative to create an account with USCIS, complete the registration form, and pay the non-refundable $10 registration fee per beneficiary.
Can Beneficiaries Check if Their Employer Has Completed the Registration?
Beneficiaries cannot directly check the status of their registration with USCIS. They must rely on their employers or their legal representatives to confirm whether the registration has been completed and submitted successfully.
Can or Should Employers Register Employees That They May Not Want to Sponsor for an H-1B Visa?
Employers should only register employees for the H-1B visa if they have a genuine intention to hire and sponsor them. Registering employees without a legitimate intention to hire can be considered fraud by USCIS and may result in penalties or sanctions for both the employer and the registered beneficiaries.
Conclusion
The H-1B visa process is intricate, with numerous rules, fees, and requirements that employers and employees must navigate. Understanding the costs, eligibility criteria, and legal responsibilities is crucial for successfully obtaining an H-1B visa. Staying informed about the latest changes and proposals will also help applicants and sponsors plan effectively for future application cycles. Whether you are an employer looking to hire foreign talent or an individual seeking employment in the U.S., this guide provides a comprehensive overview of the H-1B visa landscape in 2024 and beyond.
