by James O'Malley

A few weeks ago I wrote an article about the various types and categories of US employment visas. I promised to explain some of those visa types more fully and to give an outline of their requirements and the procedural aspects that would lead to a successful application and issuance of a US visa in one of those categories.

This article will look at the H-1B visa category in depth.
The H-1B visa is a mechanism by which US employers can employ certain foreign nationals for specific positions within their companies.

Generally the H-1B visa is reserved for foreign workers who will fill a position that requires as a minimum entry- level qualification a Bachelor’s Degree in a specific field of study. The petitioner must establish that the position requires such a degree and that the foreign national has such a degree. Qualifications are deemed to be of US standards, and therefore if the person’s degree is from a non US academic institution, the degree must be evaluated as the equivalent of a US similar degree. There are Academic Evaluations experts who will give such evaluations based on diplomas and academic transcripts.
The visa application process involves three stages. The US employer must 1) obtain a clearance from the US Department of Labor (USDOL) before 2) applying to the Department of Homeland Security Visa office.

The Department of Labor clearance is called a Labor Condition Application (L.C.A.) and the Department of Homeland Security application is the H-1 B Visa Petition. Both of these procedures are quite complicated and very bureaucratic. Only after the employer receives the approval notice for the H-1B visa application from Homeland Security can the foreign national make an appointment at the US Embassy ( stage 3) to request issuance of the H-1B visa to enable them to enter the US and to begin work for that US employer.

The Labor Condition Application requires the US employer to document various aspects of the job being offered, including the salary offered and job duties. In addition, the Labor Condition Attestation requires the US employer to notify existing employees of the new position details. Unlike employer green card applications, however, the US employer does not need to make the new position available to US workers or to prove that a US worker cannot be found to fill the position. For a US employer who has not been exposed to the visa process, the Labor Condition Application process can be confusing and intimidating. My office assists US employers throughout the fifty states with this process and we are always struck by the level of frustration on the part of employers at the LCA stage.

Two other difficult aspects of the H-1B visa program are the October 1 start date of the visa and the annual 65,000 worldwide quota of H-1B visas. Both of these issues are directly tied to the visa office petition that is filed by the US employer once the LCA part has been cleared.

The annual worldwide quota of 65,000 was introduced some years ago in reaction to high unemployment during a recessionary period. The start date of October 1 for new H-1Bvisas is a consequence of the US government’s fiscal year beginning on October 1st and ending the following September 30th of each year. Because H-1 B visa petitions can be filed by US employers a maximum of 180 days prior to the beginning of the employment, we arrive at April 1st as the earliest that a new H-1B visa petition can be filed by a US employer seeking to hire a foreign national. In recent years the demand for H-1B visas has far exceeded the 65,000 quota supply and we expect a similar demand this year. In fact, the demand has been so intense in recent years that the visa office, in an attempt to bring some level of fairness to the selection process, has installed a lottery system to select those applications it will adjudicate. For the past few years, the annual quota of 65,000 has been reached very soon after April 1. Last year, the visa office accepted all the applications it received (approximately 120,000) during the first week of April and determined by a lottery process the 65,000 it would adjudicate. We expect a similar situation this year.

The fees associates with the H-1B process can be high. The visa office charges employers a range of fees depending on the number of total employees in the employer’s company. Typically, H-1B visa application filing fees range from $1575 to $2,335. There is an optional $1,225 fee to receive an adjudication within 15 days (presuming selection if a lottery situation develops).

We fully expect demand to exceed supply in this year’s new H-1B visa season, beginning April 1st. It is imperative to have the entire applications ready to be sent to the US visa office by March 31st the latest to have a realistic chance at one of these visas. The LCA process alone takes at least 10 days and it is estimated that the entire process should take a minimum of five weeks. The clock is ticking and any employers and potential H-1B recipients should seek legal advice and begin the visa process application as soon as possible.

James A. O’Malley is a principal in the law firm of O’Malley & Associates. He has been handling U.S. visa and immigration matters for almost thirty years. He is a native of Limerick City and a graduate of Galway University.