Process

Your company wishes to hire a foreign worker to work in a ‘specialty occupation’ in the United States. You know that the foreign worker is eligible but the process seems complicated. For your information, CLG has listed the steps in the process below.

  1. Department of Labor (DOL)

    In order to initiate the process, the petitioner (U.S. company) files a Labor Condition Application (LCA) online with the Department of Labor.

    Timing: Currently, the LCA is certified within 7 business days of filing.

  2. United States Citizenship and Immigration Services (USCIS)

    The petitioner then files a Petition for Nonimmigrant Worker with H Supplement (H-1B petition) along with the LCA on behalf of the foreign worker with the appropriate USCIS Service Center that has jurisdiction over where the foreign worker will work. After the H-1B petition is filed, the USCIS will issue a receipt notice. After reviewing the H-1B petition, the USCIS will issue a decision.

    Timing: Currently, the H-1B petition is decided (on average) within 3-6 months of filing.

    *The H-1B petition may be filed along with a Premium Processing Request resulting in a decision being rendered in 15 calendar days.

    **If this is the foreign worker’s first H-1B visa, s/he will be subject to the statutory cap of 65,000 visas allotted for the fiscal year. USCIS conducts a computer-generated random-selection lottery choosing the fiscal year’s H-1B cases to be processed. Typically, the lottery is conducted using H-1B petitions received between April 1st and April 7th of the fiscal year. If chosen and approved, the work start date in H-1B status is October 1st of the fiscal year.

    ***If the foreign worker already possesses an H-1B visa, s/he is not subject to the statutory cap of 65,000 visas allotted for the fiscal year.

  3. Processing by United States Embassy or USCIS

    United States Embassy or Consulate

    Assuming that the foreign worker is outside the United States at the time of approval of the H-1B petition by the USCIS, s/he will proceed to the United States embassy or consulate in their native country with the original approval notice, complete copy of the H-1B petition that was filed with the USCIS, a valid passport and confirmation of completion of form DS-160 and payment of the visa fee H-1B (and H-4) visa fees (this is a link).

    At the interview, the consular officer will verify that all required documentation has been provided. Second, and more importantly, the consular officer may question the foreign worker in detail with respect to the specifics of the position and the U.S. company.

    If the consular officer is satisfied, the H-1B visa is approved and placed in the foreign worker’s passport. At that time, the United States embassy or consulate will also approve any H-4 visa application and place H-4 visa(s) in the foreign worker’s spouse and/or minor child(ren)’s passport(s).

    Timing: Currently, the scheduling of the interview depends on the individual United States Embassy or Consulate.

    Change of Status in the United States by USCIS

    Assuming that the foreign worker had previously entered the United States legally pursuant to a valid nonimmigrant visa; that the H-1B petition was filed and approved prior to the foreign worker’s expiration of stay in the United States; and that the foreign worker did not depart the United States during the approval process, s/he may begin employment upon issuance of the approval notice. If the foreign worker then leaves the United States after beginning employment s/he must follow the United States Embassy or Consulate visa procedure before s/he can reenter the United States.

    Timing: Currently, the Petition for Nonimmigrant Worker with H Supplement (form I-129) with request for a change of status is approved (on average) within 3-6 months of filing.

    *The Petition for Nonimmigrant Worker with H Supplement and request for a change of status may be filed along with a Premium Processing Request resulting in a decision being rendered in 15 calendar days.

    Extension of Status in the United States by USCIS

    Assuming that the foreign worker had previously been issued an H-1B visa; that the new H-1B petition was filed prior to the expiration of the current H-1B visa, and that the position offered is the same or similar to the previous position, s/he may begin employment upon filing of the H-1B petition. If the foreign worker then leaves the United States after beginning employment and after approval of the H-1B petition, s/he must follow the United States Embassy or Consulate visa procedure before s/he can reenter the United States.

    Timing: Currently, the Petition for Nonimmigrant Worker with H Supplement (form I-129) with request for an extension of status is approved (on average) within 3-6 months of filing.

    *The Petition for Nonimmigrant Worker with H Supplement and request for an extension of status may be filed along with a Premium Processing Request resulting in a decision being rendered in 15 calendar days

  4. Entering the United States

    Upon issuance of the H-1B and H-4 visas, the foreign worker, spouse and any child(ren) may enter the United States and the foreign worker may begin employment.

Additional Questions?

If you have additional questions about the H-1B visa process, you may wish to read our H-1B visa FAQs.