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H1B Visa Process

What is the process to obtain an H1B visa? 

The process to receive an H1B is a bit more complicated than the process to receive other non-immigrant visas. This is because applicants cannot simply apply for an H1B visa. In fact, there are two major aspects of the H1B visa process. First, applicants must register for the H1B lottery and be selected in the lottery before they are able to apply. Then, once an applicant is selected in the lottery, the application process becomes more similar to other non-immigrant visas. This article describes the H1B visa process in detail. 

Step One: Meet the Eligibility Requirements

The H1B visa isn’t available for just anyone. In order to be eligible for the H1B visa, an applicant must be able to prove that they work in a specified professional or academic field that requires special expertise, a college (bachelor’s) degree or higher, or equivalent work experience in their field of expertise. For example, an individual with a college degree in engineering must be employed as an engineer in order to qualify for the H1B visa. Occupations such as engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts qualify as specialty occupations under the H1B visa. 

Step Two: Register for the H1B Lottery

The United States government limits the number of H1B visas issued each year to 65,000. H1B applicants who have earned an advanced degree equivalent to a U.S. master’s degree or higher are exempted from this cap. However, those with advanced degrees are subject to their own annual cap of 20,000. Thus, obtaining a H1B visa ultimately depends on successful selection through the H1B “lottery.” 

In order to successfully register for the H1B visa, you must create an account with the USCIS or login if you’ve already created one in the past. 

It is important that you understand what type of USCIS online account is appropriate for you. Registering with the wrong account type can result in an error that could disrupt your ability to receive an H1B visa.

There are three types of USCIS online accounts that you could register under. Review the account types below to determine which one matches your circumstances. 

  • Applicant/Petitioner/Requester Account 

This account type is not appropriate for H1B visa registrations. Instead, this account type is used for individuals to prepare and file applications, petitions, or other benefit requests. 

  • Attorney/Representative Account 

Attorneys or other representatives who are submitting H1B registrations on behalf of a petitioner must use this type of account. This account will allow the attorney or representative to submit Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. 

  • Registrant Account 

Prospective petitioners should register using this type of account. Petitioners can use this account to participate in the H1B registration process regardless of whether an attorney or representative will submit the registration on the petitioners behalf. 

Know the Registration Period Timeline

The initial registration period is generally around 14 days long in the month of March each year. For example, the initial registration period for 2022 begins on March 1st; however, accounts can begin to be created on February 21st, before registration officially opens. The initial registration period ends March 18th, 2022. 

Below is the full 2022 registration period timeline: 

    • February 21st: Petitioners and registrants can start creating H1B registrant accounts at 12pm U.S. eastern standard time. 
    • March 1st: H1B registration period opens at 12pm U.S. eastern standard time. 
    • March 18th: H1B registration period closes at 12pm U.S. eastern standard time. 
  • March 31st: The USCIS will notify selected registrants
  • April 1st: Selected registrants may file their petitions on this date.

The USCIS may open additional petition filing periods in 2022 if there are remaining unused H1B visas after the initial lottery selection. In 2021, the USCIS had an unexpected three filing periods. So, registrants should continue monitoring their selection status throughout the year and keep an eye out for USCIS updates about additional filing periods.

Avoid Duplicate Beneficiaries

Petitioners are only permitted to submit one registration per beneficiary per year. If a petitioner has submitted more than one registration for the same beneficiary, the USCIS will remove all submissions by the petitioner from the selection process. 

Separate petitioners or their representatives may submit registrations for the same beneficiary. But, each petitioner or representative may only submit one registration each for that beneficiary. 

Petitioners and attorneys should coordinate with each other to ensure there are no improper duplicate registrations for a beneficiary. If duplicate registrations are discovered before the initial registration period comes to a close, the extra submissions may be deleted by the petitioner or representative until there is only one registration for the beneficiary. However, the $10 registration fees will not be refunded. There is no way to correct duplicate registrations after the initial registration period has closed. 

Pay Registration Fee(s)

There is a $10 registration fee for each registration for a single beneficiary. The $10 fee is non-refundable.  

Wait for Selection Notification

After the registration period closes, registrants and their representatives will be notified of their selection status on their USCIS online account throughout all filing periods. 

On their online account, registrants or representatives will see one of five possible selection statuses, indicating where they stand with regard to the selection process: 

    • Submitted:  The registration was successfully submitted, making the registrant eligible for selection in the selection process. 
  • Selected: The registrant has been selected to file an H1B petition. 
  • Not Selected: The registrant was not selected to file a H1B petition for this registration. 
  • Denied: There were multiple registrations submitted by or on behalf of the same beneficiary.
  • Invalidated-Failed Payment: The fee payment submitted for the registration was declined, not reconciled, or otherwise invalid. 

Cap Exempt Applicants

The USCIS exempts certain employers from the cap, as well as certain employees. 

Employers exempted from the cap include: 

  • higher education institutions 
  • non-profit organizations associated with higher education institutions 
  • non-profit research organizations or government research organizations
  • any for-profit company that seeks to hire a specialty employee to provide services to an institution or organization mentioned above.

Employees exempted from the cap include: 

  • individuals who have previously been granted exemption to the cap. 

An employer may also file a cap-exempt H1B petition for an employee if the employee previously held H1B status in the United States and the employee has not used his or her six years of status. The petition would cover the remaining time the employee is allowed in the U.S. An individual must file a petition subject to the cap if he or she has been out of the U.S. for 1 year. 

Employees who gain different employment by transferring from one employer to another may be exempt from the cap, depending on the cap-exempt status of the employee, the employer, and the new employer. 

Step Three: Begin Petitioning Process if Selected in Lottery 

Employers or their attorney can file the H1B petition only IF their applicant is selected in the lottery. The earliest an employer or their attorney can initiate the visa process is 6 months prior to the employment date stated on the petition or 6 months prior to the expiration date of the applicant’s current H1B status.

File Labor Condition Application (LCA)

At the start of the petitioning process, the employer or potential employer must first file a Labor Condition Application with the U.S. Department of Labor on the applicant’s behalf. This application requires the employer or potential employer to show that it will treat the H1B visa holder the same as other qualified workers in its same geographic area with regard to wage, and that other employees will be unaffected by the H1B visa holder’s working conditions.

File Form I-129, Petition for Nonimmigrant Worker

After the Labor Condition Application is certified by the Department of Labor, the employer or potential employer must then complete a Form I-129, Petition for a Nonimmigrant Worker

The employer or potential employer must submit Form I-129 and the certified Labor Condition Application to the United States Citizenship and Immigration Services (USCIS) as well as any fees and additional documentation that confirms your education level, certification, licensure, professional qualifications, employment or potential employment, and support from the employer or potential employer. 

File Form DS-160 if Outside the United States

H1B visa applicants who are not in the United States at the time Form I-129 is approved must take necessary steps to lawfully enter the United States and begin working.

Form DS-160, Online Nonimmigrant Visa Application is required to be filed online over the internet, where applicants must also pay an associated fee. Filing DS-160 involves uploading a photo of the applicant that conforms to the U.S. Department of State photograph requirements. Once Form DS-160 is submitted, the applicant must download and print the confirmation page showing Form DS-160 was completed and the filing fee paid. The confirmation page will need to be brought to the applicant’s visa interview at a U.S. Consulate or Embassy.

Attend U.S. Embassy or Consulate Interview if Outside the United States

H1B visa applicants who are outside the United States must next schedule an interview at a U.S. consulate or embassy nearest to you. 

At the interview, the applicant must have certain documents with them, including:

  • valid passport
  • a printed copy of the confirmation page from your completion of Form DS-160
  • a copy of your approved form I-129 and I-797 approval (issued to you previously when your form I-129 application was approved) 
  • receipts proving you paid your application fees and a passport-sized photo of you that conforms with U.S. Department of State guidelines;
  • Degree and certification documents; 
  • Resume and curriculum vitae (CV)

Enter the United States 

Approval for the H1B visa does not guarantee entry into the United States. Applicants who receive the H1B visa stamp on their passport must attempt entry at a U.S. port of entry and have with them all the documentation that they brought with them to the U.S. Embassy or Consulate interview. The U.S. Customs and Border Protection (CBP) makes the final decision whether an applicant has the appropriate documentation to be granted entry to the U.S. on a H1B visa.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

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