US immigration: A guide
to the H-1B visa

4 March 2021

The H-1B visa is a classification of US work visa which is reserved for US employers offering jobs to candidates working in a “specialty occupation”. For example, providing exceptional services relating to a Department of Defense (DOD) research and development project, or as a fashion model of distinguished merit or ability.

The H-1B is a versatile work visa which is not restricted by nationality or prior work experience as with other visa categories. The route operates on a lottery basis, requiring employers to file a petition to the United States Citizenship and Immigration Services (USCIS) to obtain a visa for their employees. However, there is a set limit on the number of visas that can be issued under this category per year, therefore employers are advised to plan ahead for the best chance of securing approval.

The USCIS has recently confirmed they will continue with the H-1B electronic pre-registration process, as was first established last year. This news is welcomed by many employers, as the pre-registration process provides a much more streamlined and cost-effective route for requesting a H-1B visa on behalf of employees.

On 9 March 2021, the registration period for the H-1B lottery opens, and employers will have until 25 March to register. In this article, we answer some common questions regarding the H-1B visa category, and provide a timeline for the next lottery.

Employer’s eligibility

To be eligible, employers will need to submit a short form and pay a fee on behalf of each applicant they wish to sponsor. This electronic pre-registration system has streamlined processing by reducing paperwork and data exchange, and has provided overall cost savings to employers seeking to file H-1B cap-subject petitions.

Individual’s eligibility

To qualify for H-1B status, an individual must work in a “specialty occupation,” which normally requires a Bachelor’s Degree. In order for a job to qualify as a “specialty occupation”, it must require the theoretical and practical application of highly specialised knowledge.

What is the H-1B Cap?

Since 1990, the number of available H-1B visas has been subject to an annual limit, commonly known as the “H-1B cap”. The H-1B cap refers to the maximum number of available H-1B visas in any one fiscal year. The current annual limit is 65,000 new visas per year, with an additional 20,000 available to H-1B applicants holding a U.S. master’s degree or higher qualification.

After the annual limit is reached, a candidate must wait until at least the beginning of the USCIS’ fiscal year on 1 October to obtain H-1B status and begin work. As a result of the cap, advance planning and strategy are often necessary so that the employer may file as early as permitted for the next fiscal year.

How long is a H-1B visa valid for?

H-1B petitions may be approved for up to three years, and can be extended for up to a total of six years maximum stay, regardless of the number of employers. After six years of holding H-1B status, the candidate must usually reside outside of the US for a full year before qualifying for a new six year period of H-1B eligibility.

H-1B employment is specific to the company that files a H-1B petition with USCIS, and it is limited to the specific occupation described in that petition. However, this status can be transferred to a new employer upon the filing and subsequent approval of a new H-1B petition by the new employer.

Has the COVID-19 pandemic changed anything?

No, USCIS remains open and they continue to adjudicate cases. If a case is selected in the pre-registration process, you will be notified and you will have 90 days to submit the full H-1B application.

H-1B Registration Process Timeline

Below is a timeline of key dates that employers should be aware of if they intend to petition for H-1B visas:

• 2 March: Petitioners and registrants can begin creating H-1B registrant accounts at noon EST
• 9 March: H-1B registration period opens at noon EST
• 25 March: H-1B registration period closes at noon EST
• 31 March: Date by which USCIS intends to notify selected registrants.
• 1 April: The earliest date that 2022 H-1B cap-subject petitions may be filed.

Expert advice and support with US immigration

Smith Stone Walters recommends vetting your foreign worker population to determine who would be an appropriate candidate for this category. Our expert immigration advisors are on hand to help you set up the road map by advance planning and strategy to help you file your H-1B visas.

To speak to a member of the team at our New York office, please call +1 646 790 5913 or email usa@smithstonewalters.com.

We look forward to hearing from you.

Share story