Updated: Mar 15, 2021
The H-1B Guidance includes the introduction of H-1B program, the qualifications of the program, the general petition procedure, a list of the required documents and the fee structure.
THE H-1B PROGRAM
The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as science, engineering and information technology, and fields such as teaching and accounting.
H-1B SPECIALTY OCCUPATION
The occupation requires:
Theoretical and practical application of a body of highly specialized knowledge; and
Attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
The position must also meet one of the following criteria to qualify as a specialty occupation:
Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position;
The degree requirement is common to the industry in parallel positions among similar organization or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree;
The employer normally requires a degree or its equivalent for the position;
*The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
To qualify to perform services in a specialty occupation, you must meet one of the following criteria:
Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
*Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
H-1B PETITION PACKAGE
Here is a list of the required documents in the preferred order at the time of submission:
Form G-28 (if represented by an attorney or accredited representative)
Copy of the Registration Selection Notice for the Beneficiary Named in the Petition
Form I-129, Petition for a Nonimmigrant Worker
H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile-Singapore petitions)
H-1B Data Collection and Filing Fee Exemption Supplement
All supporting documentation to establish eligibility. Provide a table of contents for supporting documentation and separate the items as listed in the table.
Arrival-Departure Record (Form I-94) if the beneficiary is in the United States
SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
Form I-566 if the beneficiary is a current A or G nonimmigrant
Department of Labor certified LCA, Form ETA 9035
Other supporting documentation
Copy of the petition, if necessary. Clearly mark it as “COPY” so that it is not mistaken for a duplicate filing.
ADDITIONAL REQUIRED DOCUMENTS
When filing your H-1B petition with USCIS, you must include evidence that an LCA (ETA 9035) has been certified by the U.S. Department of Labor. This may include a copy of the signed, certified LCA. Note: USCIS encourages petitioners to keep Department of Labor LCA processing times in mind when preparing the H-1B petition and to plan accordingly. If the LCA was previously submitted in a petition that has been approved, you must submit a list including the name and USCIS case receipt number of any foreign worker who has previously used the LCA. You may not use an LCA for more workers than specified in Part B, Question 7 of the LCA.
Evidence of Beneficiary’s Educational Background
You must submit evidence of the beneficiary’s education credentials (with English translations when applicable) at the time you file your petition. If the beneficiary has met all of the requirements for a degree, but the degree has not yet been awarded, you may submit the following alternate evidence:
A copy of the beneficiary’s final transcript; or
A letter from the registrar confirming that the beneficiary has met all of the degree requirements. If the educational institution does not have a registrar, then the letter must be signed by the person in charge of educational records where the degree will be awarded.
If you indicate that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at the time you file your petition.
H-1B FILING PROCESS
The procedure to file an H-1B petition generally includes:
· Submit Labor Certification Application (LCA) to U.S. Department of Labor (DOL) for certification;
· Receive certified LCA;
· Complete form I-129;
· Collect required documents and checks for each required fee;
· Complete petition package.
Depending on the type of H-1B petition, different fees might be required.
I-129 Filing Fee: $460
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee:
$750 for employers with 1 to 25 full-time equivalent employees, unless exempt
$1,500 for employers with 26 or more full-time equivalent employees, unless exempt
Fraud Prevention and Detection fee:
$500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers. (This fee does not apply to Chile/Singapore H-1B1 petitions.)
Public Law 114-113 fee:
$4,000 for petitioners who employs 50 or more employees in the United States and more than 50% of those employees are in H-1B or L-1 nonimmigrant status. Qualified petitioners must submit this fee with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers.
Check must be made payable to the Department of Homeland Security, dated within the last six months, and include the proper amount and signature.
A separate check for each fee is preferred. For example, if you are required to pay the base filing fee, the fraud fee, and the ACWIA fee, you should submit three separate checks. If you only submit one check as combined payment for all applicable fees and certain fees do not apply or are incorrect, USCIS will reject your H-1B petition.
Petitions submitted with the incorrect filing fee will also be rejected.