The registration process for filing for an H-1B visa for FY 2022 starts soon, and it is important that the employers stay updated with the obligations before they file petitions for their employees. Given the complex process and various requirements, we have curated a list of things that one needs to keep in mind while sponsoring an individual for an H-1B visa.  

H-1B Visa Petition Guidelines

An H-1B visa is known to provide employers with the opportunity to hire foreign individuals for specialty occupations. The program intends to aid employers by letting them hire talent with the business skills and abilities needed for the job, that may not be easily available in the US. According the present H-1B visa provisions, around 65,000 foreign workers may be provided the H-1B status every year. Applicants with a Master’s degree from the US are provided with 20,000 seats, in addition to the regular visa.  

The employers must follow the steps below before applying for an H-1B petition with the U.S. Citizen and Immigration Services (USCIS). In 2020, the USCIS implemented an electronic H-1B registration process that requires petitioners to register electronically for the initial phases.

Step 1: Ensure that the Job Description Qualifies as a Specialty Occupation

The employer should ensure the job qualifications meet any of the following criteria to be counted as a specialty occupation:

• A bachelor’s or higher degree (or its equivalent);
• The degree required for the job is common to the industry, or that the job is unique or complex so it can be performed only by the individual with the particular degree;
• The nature of the specific duty is complex and specialized, which requires knowledge required to perform the said duties that are usually associated with the attainment of the bachelor’s or higher degree

A specialty occupation is defined by the USCIS as one that requires technical or theoretical expertise in the fields of Science, Computer Programming, Engineering, or such areas.

Step 2: Establish the Wages for the Position

H-1B workers must be paid the required wage that is, wages higher than the prevailing wage or the in-house wage or actual wage of the employer for similarly employed individuals. The determined wages should be reported on the Labor Condition Application (LCA) to the U.S. Department of Labor.  

According to the regulations maintaining the LCA process, the employers may choose from one the following wage sources to obtain the prevailing wage:

• A Prevailing Wage Determination (PWD) obtained from the National Prevailing Wage Center (NPWC)
• A survey conducted by an independent authoritative source
• An alternative legitimate source of wage information. A wage rate decided upon in a collective bargaining agreement may be included in these sources

Note: While the employers are not expected to follow any specific wage methodology during the LCA process, they are expected to determine the prevailing wage based on the most suitable information available at the time of filing the application.

Step 3: Inform the Workforce

The U.S. workforce should be informed about the hiring within 30 days before the date the employer files the LCA. The notice about the same should include the following information:

• The number of H-1B individuals that the employer wants to employ
• The occupational qualifications based on which the said workers will be employed
• The wages offered to the H-1B workers
• The period of employment of the workers
• The location/s where the individuals will be assigned
• A statement mentioning that, “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filled with any office the Wage and Hour Division of the United States Department of Labor.”

Step 4: Submit the LCA to the Department of Labor

The employer must ensure that they apply for and receive a DOL certification of an LCA within six months before the initial date of employment, and no more than the mentioned period. The LCA should have a list of locations of intended employment that are identified at the time of filing.  It is important that the LCA is posted in public view at two locations in the workplace, on or within 30 days of the filing of the application.

The application must comply with labor requirements mentioned below:

• The employers will pay the worker a wage that is no less than that of a similarly qualified worker or, the prevailing wage for the position in the geographical area in which the worker would be employed.
• The employer should provide working conditions that do not affect that similarly employed workers adversely.

Note: One can obtain further information about the LCA application process from the U.S. Department of Labor’s official website.

Step 5: Register for the H-1B Lottery

The USCIS grants a limited number of H-1B visas every year, which are determined through an annual lottery. The employers can now skip the hassle of applying for an I-129 petition for the annual lottery, and instead, are required to submit an electronic registration, requesting beneficiary with a payment of $10 per beneficiary. Applicants chosen in the lottery are then required to submit an I-129 petition.

Step 6: Understanding the Lottery Selection Criteria

The USCIS would conduct a random selection from the registrations to meet their 65,000 limitations first. This would be followed by a random selection to fill the limitations of 20,000 from the registrations from beneficiaries with a U.S. master’s degree or higher.  

After registration, the applicant’s USCIS account will display one of the below statuses:

• Submitted
• Selected
• Not Selected
• Denied

By the 31st of March, the USCIS would update the status change for the applicants. For the registrants selected, a Notice of Selection would be sent through the method selected by them upon registration.

Step 7: Submit the form I-129 for Selected Beneficiaries

Employers with selected beneficiaries are provided with a window of 90 days to file for an H-1B petition from the 1st of April. The employers should file for a Form-129 petition as soon as their LCA has been certified.  

There are various kinds of fees to be submitted along with the Form I-129 that may be applicable to certain employers. This may include the base filing fee, premium processing service fee, electronic registration fee, Public Law fee, fraud fee, and the American Competitiveness and Workforce Improvement Act (ACWIA) fee. The fees applicable for the particular registrant should be stapled along with the document.

For further information about the Form I-120 editions, fees, and checklist, you can refer to the USCIS official website.

Step 8: Instruct Prospective Workers to Apply for Visa or Admission

The employers receive a form I-797 Notice of Action if their Form I-129 petition has been approved. The workers need to apply with the U.S. Department of State (DOS) with a copy of their Form I-797 at a U.S. embassy or consulate for an H-1B visa. This should be followed with an application for the U.S. Customs and Border Protection (CBP) for admission to the U.S. in H-1B classification.

The rest of the hiring and Form I-9 procedures are followed once the worker arrives in the U.S.

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