I just filed my H-1B application. What are the next steps in the H-1B process? Some things to know about the new H-1B work visa rule.
PART I – What is the H-1B process?
The March Madness fever extends to April, as H-1B season arrives. With the recent news of the temporary suspension of premium processing for H-1B applications (typically filed during the first week of April), the anxiety level in the immigrant worker community, particularly in the tech industry, has skyrocketed.
If you just filed your H-1B visa application, you’re probably wondering what to expect and the next steps in the process. This post summarizes the H-1B process and how the new law can help immigrant workers.
What is the H-1B process?
The H-1B Visa is a visa for foreign nationals with a bachelor's degree (or its equivalent work experience) and a U.S. employer that will hire this person in a specialty occupation, including fashion models of distinguished merit & ability (Melania Trump reportedly got her citizenship through this process) and those working for Department of Defense projects. The petitioning U.S. employer must demonstrate that the worker will be paid the actual or prevailing wage.
The process starts with the petitioning U.S. employer filing an application requesting a visa be granted to the foreign worker. This application includes documentation regarding the applicant’s educational and professional background, as well as a certification from the U.S. Department of Labor showing that the employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers.
The U.S. Citizenship and Immigration Services (USCIS) typically begins accepting H-1B applications on the first week of April. Due to the extremely high number of applications annually received by USCIS, applications for merits review are selected through a computer-generated random selection process. This lottery helps USCIS to select enough petitions to meet the 65,000 general-category (Bachelor’s) cap and the 20,000 cap under the advanced degree (Master’s) exemption. Those not selected are out of luck, but may apply again the following year.
Who are not subject to the cap?
There are several categories of individuals that are not subject to the cap and in turn, the lottery. This includes H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization. Foreign nationals in H-1B (and H-2B nonimmigrant) classifications who are admitted to perform labor and services in the CNMI and Guam are exempt from the H-1B cap and H-2B cap from Nov. 28, 2009 to Dec. 31, 2019.
If the petition is approved for a foreign worker already in the U.S., they will receive an approval notice and an updated I-94 showing their authorized period of stay. If the foreign worker is abroad, then they must undergo consular processing to obtain their visa documentation that will allow them to enter the U.S. Family members may also be included in the petition.
The process may be complicated so we would recommend seeking the assistance of an experienced attorney. For Part II of this post, What is the new H-1B Rule? click here.
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