What is the H-1B Visa?

The H-1B is a non-immigrant (temporary) visa designed to help employers hire highly skilled workers from overseas, in speciality occupations such as tech, engineering, science and more. This is especially useful where employers are unable to fill job roles with applicants already in the United States.

Who is eligible for the H-1B Visa?

The H-1B visa allows employers to recruit foreign professionals in certain jobs that require at least a bachelors degree or equivalent. Occupations that qualify for H-1B are often in the fields of engineering, technology, science, and finance, among others. 

There are no specific limitations on the country of origin or general background of the applicant.

To be deemed eligible for an H-1B visa, the worker must have: 

• A job offer from a U.S.-based employer for a role covered under the occupations as described above
• Proof of education by way of a bachelor’s degree or equivalent experience in the relevant field
• Evidence from the employer that there is a lack of qualified and suitable applicants already in the United States

In addition, the employer must: 

• Attest that the employment of the foreign professional will not negatively affect the wages and working conditions of similarly employed workers
• Provide existing workers with notice of intention to hire a foreign professional via an H-1B visa

What is the H-1B Lottery?

There is a ‘cap’ on the number of H-1B visas that can be issued each fiscal year, which runs from October to September. 

When the demand for H-1B visas is higher than the number available, the cap, United States Citizenship and Immigration Services (USCIS) uses a lottery system to randomly select applicants who have registered. This means only a certain number of employers/employees will be successful in obtaining the visa each year. 

In 2023, the cap was set at 65,000 visas, with an additional 20,000 visas allocated for applicants who have gained a masters degree in the United States. 

What is the registration process for H-1B Visa?

[Timeline graphic image]

In order for applicants to gain a H-1B visa, applicants generally go through three stages: 

1. H-1B Registration

Timing: Varies, but the registration window is usually open from early to mid March every year, ahead of the start of the fiscal year in October, 

All eligible employers who wish to apply must register with USCIS electronically, to enter the H-1B lottery.

2. H-1B Lottery

If the number of applicants exceeds the number of visas available, which is usually the case, a lottery is conducted which randomly selects applicants from the pool of those who have registered. USCIS selects the 20,000 with advanced degrees first, and then the remaining 65,000 (based on 2023 numbers). 

3.  H-1B Visa Petition Submission

Timing: Varies, but usually opens early April and closes 90 days later.

Those who are lucky enough to be selected are now able to submit their full H-1B petitions (Form I-129 Petition for Alien Worker) to USCIS. 

A premium processing option is available, which allows employers to speed up the process for an additional fee. 

Typically, the employer and employee will work with an immigration attorney to build their application which will involve: 

• Submission of a Labor Condition Application (LCA) confirming the salary of the employees position, and that your working conditions will not affect other employees
• Filling of the I-129 Petition for Alien Worker form
• Submission of evidence to prove your education and experience

Once the I-129 form is initially approved and the applicant is inside the United States, they must wait until it becomes active to start working. 

If the H-1B applicant is outside the United States, they will undergo further steps via their local U.S. embassy, including the DS-160 form, and an interview. 

What costs need to be considered for the H-1B Visa?

• Lottery Registration Fee: $10
• Form I-129 Petition Fee: $460
• Additional Premium Processing Fees
• Attorney Fees

What happens if I am unsuccessful in my H-1B Application? 

If the applicant is not selected via the H-1B Lottery, they have the option of exploring other immigrant or temporary non-immigrant visa options. 

If the applicant is already in the U.S. and their current visa is about to expire, they have the benefit of a 60-day grace period once it does expire. It is the applicant’s responsibility to adjust status to another visa or if that’s not possible, leave the United States.

The H-1B visa is a temporary visa. What are the applicant’s long term options?

H-1B visa holders have the option to apply for permanent residence (a green card), subject to certain criteria. This process can take a long time, so applicants must consider the implications on family members and authorisation to work.