The H1b 2021 Edition - Frear Law

The H1b 2021 Edition

The H1b visa allows businesses and organizations to employ foreign nationals who work in specialty occupations. This page provides information on how employers can use the H1b in 2021 to employ foreign nationals.

The Basics of the H1b Visa

 

What employees qualify for the H1b Visa?

H1b Visas are available for those who work in “specialty occupations” A specialty occupation is defined as one that requires…

(a) theoretical and practical application of a body of highly specialized knowledge, and

(b) attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States

How long can you work on an H1b Visa?

The H1b visa allows talented foreign nationals to work for an employer for a maximum of six years. However, this six year maximum does not apply for those with an approved I-140(petition for alien worker). If an employee has an approved I-140, they will be able to continue renewing their H1b while they wait for the opportunity to apply for a green card.

The H1b Process in 2021

Unless an exception applies, most H1b visa applications are selected via a lottery system.

In the past, this lottery system was executed in an extremely inefficient manner. Under the previous system, employers would rush to file full applications on the first day that they were eligible(in early April). Unfortunately, due to stiff competition for the H1b visa(apprx. 190,000 applications for 85,000 slots) the majority of applications were not selected for processing. This means that all of the work that went into completing the applications was wasted for a vast majority of applicants. 

One of my favorite bloggers, the hugely talented Maria Popotova of Brain Pickings described her own frustrating experience with the H1b application process. She stated: 

“we’d filed for the first day, but I was in the two-thirds that didn’t get it, so the whole envelope got returned unopened…We tried again in 2008, and same thing—the whole envelope got returned unopened. So, I had to leave the country!”

Thankfully, Ms. Popotova is back in the U.S. and the filing process has improved for those who are seeking H1b visas. 

We still have a lottery system. However, in 2020 a new electronic registration process was implemented that streamlined the application process.

Under this new system, the process looks like this:

      • Employers register with USCIS electronically for $10;
      • USCIS runs the lottery;
      • If selected, employers submit their applications along with supporting documentation

This system saves employers from having to do a ton of leg work and pay thousands of dollars in legal fees before knowing if their applications will be selected. Hopefully, this change in policy will motivate employers to enter the lottery since the cost associated with doing so will be much lower than it was in the past. 

Key Electronic Registration Dates: H1b 2021 

If you decide to enter the H1b lottery you should keep these critical dates in mind(NOTE: THESE DATES ARE ALSO LISTED ON THE USCIS WEBSITE HERE):

March 1: Electronic registration opens

March 20: H1b registration closes

March 31: Date by which USCIS intends to notify all selected applicants

April 1: The first day for selected applicants to file

After your application is selected, then the real fun begins!!!

Required Forms for the H1B in 2021

If selected, applicants will have up to 90 days to submit form I-129 and supporting documentation. This application package will include the following forms:

      • Form I-129H-1, Petition for Nonimmigrant Worker(Starting in October 2020); 
      • ETA Form 9035E, Labor Condition Application for Nonimmigrant Workers(Explained Below);
      • Form G-28, Notice of Appearance as Attorney or Accredited Representative;
      • Form I-907, Request for Premium Processing Service (if requested); and
      • Form I-539, Application to Extend/Change Nonimmigrant Status (for family members)

Additional Documents for the H1b

In addition to the standard forms, there are other supporting documents that will be submitted with the application.

These documents include:

      • The registration/selection notice
      • The employee’s I-94(arrival/departure record) if they are in the US
      • The employee’s I-20 if they are/were in F-1 or F-2 status
      • The employee’s DS-2019 if they are/were in J-1 or J-2 status
      • Employer support letter(explained below)
      • Evidence of the employee’s educational background(ie. Degree, Transcript, etc.)
      • Evidence of the employee’s work experience(if applicable)

About the Labor Condition Application

Obtaining the required labor condition application(LCA) is a two step process. 

First, the employer must determine the required wage for the position. This process usually starts by consulting the Department of Labor’s wage library or by requesting a prevailing wage determination. Once the employer finds the prevailing wage(what others are typically paid) they will compare it to their in-house wage(the actual wage) for similar positions. The higher wage between the actual and prevailing wage will be the required wage for the position.

After the wage is determined, the LCA will be prepared, posted at the worksite and filed using form ETA 9035E. This form will be submitted electronically through the iCERT portal. After submission, the DOL will issue a final determination and/or certification(AKA acceptance) within seven working days. A certified LCA will be signed by the employer and included in the H1b petition.

About the Employer Support Letter

The employer’s letter of support will tie the H1b application together. A good support letter will:

      • Provide an overview of the employer’s business operations and finances:
      • Describe the specialty occupation that is required for the work;
      • Highlight the beneficiary’s qualifications;
      • Discuss how the employee’s qualifications will enable them to perform the job duties;
      • Include information about the the requested period of stay, compensation and the employer’s intention to comply with the LCA

Filing Fees for the H1b

For most employers, the filing fees will be as follows:

      •  $555—Form I-129H-1 filing fee(NOTE: This form and fee take effect on October 2, 2020);
      • $500—Fraud Prevention and Detection fee; 
      •  $1,500 or $750—American Competitiveness and Workforce Improvement Act (ACWIA) fee, also known as the Education and Training fee. NOTE: Employers with 26 or more employees will pay the higher fee; Also, the ACWIA fee only applies to the first petition;
      • $1440–Form I-907, Premium Processing Fee(if decision is requested within 15 days)

H1b Lawyer Fees

Attorney fees will vary. We currently charge $1000 for the initial registration, research and file preparation. If selected, we charge an additional fee of $1400-$1700 for the remainder of the legal services. These services include unlimited consultations, completion of the I-129 and supporting documentation. You can find our entire list of immigration lawyer fees HERE.

Who Pays?

Since the H1b is an employer driven process, they are responsible for the attorney and filing fees associated with the application. However, the employee can pay for premium processing.

How Long Does This Take?

Standard processing times are difficult to predict. However, you can refer to the USCIS processing times page to get a sense for how long the decision will take. If you want a decision within 15 days, a request for premium processing along with the required fee can be filed with the application.

Post Decision Process

If the employee is already in the United States, they can begin working in H1b status upon receipt of the approval notice. However, the process is slightly more complicated for an employee who is outside of the United States.

Employees who are outside of the United States will be required to go through aU.S. embassy or consulate to obtain a visa. These consulates and embassies have varying requirements that can typically be found on their respective websites. The wait times for the interviews and visa processing can be found HERE.

What’s Next?

If you are interested in sponsoring an employee for an H1b visa, I recommend that you educate yourself on the process, then reach out to an immigration lawyer for further guidance. Since immigration law is federal in nature, you have the luxury of being able to seek guidance from immigration practitioners across the country. After speaking with your lawyer, you will be able to decide if the H1b visa could be a good fit for your situation. 

Good luck with the process and please feel free to contact me if you have any questions!