What is H-1B Visa? Know history, rules, and latest news for Indian applicants

The H-1B visa is a non-immigrant visa policy allowing US employers to temporarily hire foreign workers in 'speciality occupations'. A speciality occupation is defined as a position that requires a bachelor's degree or is specified in the field, such as engineering, technology, medicine, or business. There are 65,000 H1B visas allocated per year, plus 20,000 additional visas for those with advanced US degrees (US master's and up).

What is the history of the H-1B Visa?

The H-1B visa program began with the Immigration Act of 1990 (IMMACT90), which formalised the process for highly skilled foreign workers in "speciality occupations" to enter the US. The program allows businesses to temporarily hire workers in fields requiring specialised knowledge and at least a bachelor's degree.

The policy was signed by then-President George H. W. Bush on November 20, 1990. During this time, the H-1 visa was split into the H-1A visa for nurses, and the H-1B visa for workers in speciality occupations.

Over the years, the program's annual cap has been adjusted and has created an additional 20,000 visas for individuals with advanced U.S. degrees, which has become a critical pathway for several immigrants coming from multiple nations, especially from India, to work in US tech and other specialised fields.

What are the eligibility and rules for the H-1B Visa?

To be eligible for an H-1B visa, you must have a job offer for a "speciality occupation" from a US employer, possess a bachelor's degree or equivalent in the field of the speciality, and the employer must agree to pay the prevailing wage for the job.

The employer files a Labour Condition Application (LCA) with the Department of Labour, attesting to wages and working conditions, and then petitions the USCIS on your behalf. The job must require specialised knowledge and a degree or equivalent experience, and you must meet the required qualifications for the position.

What is the H-1B Visa application process?

Step 1: Employer registers for the lottery

Create USCIS account: The sponsoring employer or their attorney must create an organisational account with USCIS.

Submit registration: For a limited period, typically in March, the employer submits an electronic registration for each prospective employee (beneficiary). The registration requires basic information about both the employer and the beneficiary, including the beneficiary's passport details.

Pay the registration fee: A non-refundable fee of $215 per beneficiary must be paid during the registration period.

Step 2: USCIS conducts the lottery

Random selection: If the number of registrations exceeds the annual H-1B cap, USCIS conducts a random, computer-generated lottery. The selection is "beneficiary-centric," meaning each prospective employee has an equal chance of being selected, regardless of how many registrations are submitted on their behalf.

Receive results: By the end of March, USCIS notifies employers of the lottery results through their online accounts. Only those with a "Selected" status can proceed with the full petition.

Step 3: Employer files Labour Condition Application (LCA)

Obtain certification: If selected, the employer submits a Labour Condition Application (LCA), Form ETA-9035, to the Department of Labour (DOL).

Meet wage and working conditions: The LCA requires the employer to attest that they will pay the H-1B worker at least the prevailing wage for the occupation in the intended area of employment and that the employment will not adversely affect U.S. workers.

Post the LCA: The employer must post the certified LCA at the worksite for a period of 10 business days.

Wait for approval: The DOL typically certifies the LCA within 7–10 days.

Step 4: Employer files Form I-129 with USCIS

Assemble the petition: Within a specific filing window (usually 90 days after selection), the employer files Form I-129, Petition for a Nonimmigrant Worker, with USCIS. The packet must include the certified LCA and other required supporting documentation, such as the job offer letter and the employee's educational credentials.

Choose processing type:

Regular processing: Takes several months, often 4 to 8 months or more.

Premium processing: For an additional fee, USCIS guarantees a response within 15 business days. This option can also be used to expedite a petition already in progress.

Step 5: USCIS adjudication

Review and request evidence: USCIS reviews the complete petition. The agency may issue a Request for Evidence (RFE) if it needs more information to make a decision.

Approve or deny: If the petition is approved, USCIS sends an I-797 Approval Notice. If denied, the process ends.

Step 6: Employee attends visa interview (for applicants abroad)

Complete DS-160: Foreign workers outside the U.S. complete the online visa application, Form DS-160, and pay the visa fee.

Schedule appointment: They schedule and attend an interview at a U.S. embassy or consulate in their home country.

Receive visa stamp: A consular officer reviews the application and, upon approval, places an H-1B visa stamp in the applicant's passport.

Step 7: Employee enters the U.S. and begins work

Travel and admission: With the approved visa, the employee can travel to the U.S. no more than 10 days before the employment start date.

Work authorisation: The employee can begin working for the sponsoring employer on the approved start date, which is usually October 1 of the new fiscal year.

What are the H-1B visa fees?

Before the recent change, the overall H-1B cost for employers was complex and typically ranged from $2,000 to over $8,000 per worker, depending on factors such as the employer's size, processing time, and visa type. The core fees included:

H-1B Registration Fee: $215.

Base Form I-129 Petition Fee: $460, increasing to $780 starting April 1, 2024.

Fraud Prevention and Detection Fee: $500. This fee was not required for extensions.

American Competitiveness and Workforce Improvement Act (ACWIA) Fee: $750 for employers with 1 to 25 full-time equivalent employees, and $1,500 for those with 26 or more employees.

Public Law 114-113 Fee: An additional $4,000 for certain companies that employ 50 or more employees, with over 50% on H-1B or L-1 status.

Premium Processing (Optional): For an additional $2,805, employers could request 15-day expedited processing.

Latest News for Indian Applicants

In a recent development, Donald Trump’s decided to impose a $100,000 (£74,096) fee on H1-B visas for skilled foreign workers, which will be applied annually. However, later, the White House clarified on Saturday that the new H-1B visa policy will impose a $100,000 fee will be a "one-time" payment imposed only on new applicants, according to a report in AFP.