How and when to apply for H-1B visa to the US

There is a misconception many aspiring Indians have that one can apply for an H-1B visa directly and get to the US for a job. 

You cannot apply for an H-1B visa yourself. 

US Immigration law is vague about the definition of the word profession (relevant to H-1B visa) stating only that the meaning includes such occupations as architects, lawyers, physicians, engineers and teachers. Other occupations, not specifically mentioned in the law, but routinely recognised as professional include, accountants, computer systems analysts, physical therapists, chemists, pharmacists, medical technologists, hotel managers and upper-level business managers.

You must hold the educational equivalent to a US bachelor's degree to qualify for an H-1B visa. Also, the job duties must require education equivalent to a US bachelor's degree in the occupation for which you are hired.

If you were not educated in America, United States Citizenship and Immigration Services (USCIS), as part of judging your H-1B eligibility, will often ask for an academic credential evaluation from an approved consulting service to determine the American equivalent of your educational level.

Before sending your academic documents to a Credential Evaluation Service, you may want to telephone in advance to discuss your prospects. Usually, you can get some idea of the likelihood of receiving good results. If your prospects are bleak, you may decide not to order the evaluation and to save the service charges. For details, contact:

Credentials Evaluation Service, AVAP Credential Evaluation Service
International Education Research Foundation Inc
Suite 19, 5053 Ocean Building, P.O. Box 3665
Sarasota, FL 3242

            or

Culver City, California 90231-3665
Tel: (1)-941-346 -1427 or Tel.: 310-258-9451
Fax: (1)- 941- 349-4370 or Fax: 310-342-7086
Email: eval@auap.com or  info@ierf.org

Present

Under the existing law, 65,000 H-1B visas are issued for each fiscal year (October 1 through September 30).  Of these, 6,800 visas are kept exclusively for Chile and Singapore according to a Free Trade Agreement with the US. 

In other words, only 58,200 visas are actually available annually.  The visas are distributed on a first-come, first-served basis. Accompanying relatives of H1-B visa holders are not counted in this total.  

Under the "L-1 Visa and H-1B Visa Reform Act of 2004", effective March 8, 2005, up to 20,000 additional H-1B slots are available to graduates of US masters degree (or higher) programs.

There are some types of jobs that are exempt from the H-1B cap.  Not every H-1B applicant is subject to the cap. Visas will still be available for applicants filing for amendments, extensions, and transfers. The cap also does not apply to applicants filing H-1B visas through institutions of higher education, nonprofit research organisations and government research organisations. Physicians taking jobs under State 30 or federal government agency waivers based on serving underserved communities are exempt from the H-1B cap.

One of the highlights that makes this visa so desirable is that, unlike many other nonimmigrant visa categories, it is a "dual intent" visa. This means that a visa will not be denied simply because an individual has intentions to become a permanent resident.  The applicant does not have to show his liquid and fixed assets as justification to return to India.  The assumption is that if for some reason the permanent residency petition in future is denied, the person would still have the intention to return home.

Thus, assuming the applicant meets all of the statutory requirements for the H-1B visa, the main reason it would be denied is if the consular officer feels there is good reason to believe the applicant will not comply with the terms of the visa or the employer's credentials are in doubt. 

Numerous cases have been reported where fraudulent employers presenting themselves as consultants and promising jobs in the US prepare 'artificial' jobs and attempt to convince Visa Officers through the applicant about 'so called' genuine job.  Such situations have often resulted in application going in for long or unending administrative processing under Section 221(g) and the applicant lose precious time and money in the process. 

Another advantage to the H-1B category is that the employer does not need to demonstrate that there is a shortage of qualified US workers and, consequently, a labor certification process can be avoided. Aside from documenting that the position offered is in a specialty occupation and that the employee has the appropriate credentials for the job, the employer need only verify that the H-1B worker is being paid the prevailing wage for the work being performed and that employment of a foreign worker is not harming conditions for US workers.

Non-graduates may be employed on an H1B visa where they can claim to be 'graduate equivalent' by virtue of twelve or more years' experience in the occupation. Positions that are not 'specialty occupation', or for which the candidate lacks the qualifications/experience for an H-1B visa, may be filled using an H-2B visa. The disadvantage of the H-2B visa is that it requires 'labor certification' - an expensive and time consuming process that involves extensive advertising of the position, and satisfying the authorities that there are no US-workers available to do the job.

New H-1B legislation requires certain employers, called 'H-1B dependent employers' to advertise positions in the USA before petitioning to employ H-1B workers for those positions. H-1B dependent employers are defined as those having more than 15% of their employees in H-1B status (for firms with over 50 employees - small firms are allowed a higher percentage of H1B employees before becoming 'dependent').

Step one for H-1B visa thus is to locate a good genuine employer.  This could be done in various ways.  Explore international placement bureaus, recruitment agents, your own friends/contacts/relatives in the US who could help locate one and the World Wide Web which is the biggest source of information on employers. 

Web sites such as http://www.nostops.org/; http://www.h1bsponsors.com/; http://www.h1base.com/ are some of the web sites where you register yourself by paying certain fees and use their sources to communicate with possible employers in the US by placing your resume.  Nostops.org is an Indian website operated from India and could be a better bet to start with whereas the others would want remittance for registration in US dollars.     

You have to be aware and beware of body shoppers or scamsters who give false hopes, charge advanced hefty fees when there is no guarantee of a job.

Procedure 

The procedure of filing for an H-1B visa petition is a three-step process and this is usually done by the attorney of the visa sponsoring company:

~ Verification and approval of the company by the Dept of Labor to file an H-1B petition on behalf of the candidate. (Qualify to be paying the Prevailing Wage Requirements, that they won't displace any domestic workers, show good faith in hiring practices, etc) 

~ Verification and approval of the candidate by getting the transcripts of the candidate from overseas evaluated as per the minimum standards required to do the particular job for which the H-1B petition is filed. (Educational evaluation based on the applicant's education and work experience, awards, performance letters, etc) - This is done by the World Evaluation Services, which evaluates the foreign degrees as per the US standards.

~ Actual filing of the petition, which includes collecting documentation of both above and including the full non-refundable fees for filing the H-1B petition (which has to be paid in full). The company pays the entire amount of the H-1B petition filing fees upfront to the USCIS to receive grant of an H-1B petition approval for the H-1B aspirant.