How Do I Sponsor an Employee for an H-1B Visa?

U.S. employers can hire foreign workers to fill certain specialty occupations. Immigration law defines a specialty occupation as one that requires unique, specialized knowledge and a bachelor’s degree or higher. The H-1B application process is notoriously complicated. Below, you will find an overview of what your company needs to do to sponsor a foreign national for an H-1B visa.

This process differs from the temporary labor certification process for H-2A and H-2B nonimmigrant workers. For personalized legal advice, reach out to a local immigration lawyer.

Types of H-1B Visa Sponsorship

An H-1B visa is a dual intent visa where foreign workers can apply for lawful permanent resident status while under their nonimmigrant employment visa. LPRs with a green card can also petition to have their family members come to the U.S.

Employers seeking foreign workers under the H-1B visa program require their own labor certification. Employers of applicants need to seek approval from the U.S. Department of Labor (DOL) through a Labor Condition Application (LCA) for H-1B workers.

The LCA contains statements and promises from the employer about the employer’s labor conditions. It’s required to ensure that the H-1B visa holder’s employment doesn’t adversely affect the actual wages and working conditions of U.S. workers.

There are two types of cases for H-1B sponsorship, explains James A. Bach, an immigration attorney in San Francisco. “One is for people who are [current H-1B visa holders] and the other is for people who are either outside of the country and have no working status in the United States, or, usually, who are in student status and have H-1B employment authorization because they’re a recent graduate,” he says.

Employees seeking a new H-1B visa will need to go through a lottery process. “Companies that want to sponsor new H-1B employees will have to register their company and then register in the lottery the name of the person for whom they want to get H-1B status,” Bach says.

People who already have an employment visa won’t need to go through the lottery; their new employer just needs to submit the H-1B petition. It typically takes about 2 to 8 months for both the U.S. Department of Labor and the U.S. Citizenship and Immigration Services (USCIS) to process the visa application paperwork.

How To Start the Process

Employers begin by registering the beneficiary in the lottery during the designated period. This is often followed by the filing of either a Prevailing Wage Determination (PWD) or LCA. The prevailing wage is generally considered to be the average of the wages paid to workers similarly employed in the area.

Employers file an application for PWD with the DOL, which then returns the form with the resulting prevailing wage determination.

Employers must pay the H-1B employee the higher of the prevailing wage or actual wage. The actual wage is the wage rate paid by the employer to all individuals with similar qualifications and experience for the specific employment at the place of employment.

The actual wage is not the average rate for all workers employed in the occupation. Once the wage is determined, the LCA requires other basic information about the employment, including:

• Job title
• Job description
• Number of workers sought
• Period of employment with start date (up to three years)
• Location of intended worksite for employment

Sponsoring an Employee for an H-1B Visa

There are three key steps to sponsoring an employee for an H-1B visa.

Step One: Make Sure the Position Qualifies for an H-1B Visa

H-1B visa stamps are not available to all foreign workers. The position must be a qualifying specialty occupation, or the applicant must meet a specific exception — such as working with the U.S. Department of Defense in an approved capacity or working as a fashion model. Companies do not want to waste resources going through the application process only to find that an employee will ultimately be ineligible.

There are two primary eligibility considerations. “First, you have to establish that the job requires a specialty degree. Second, you have to establish that the employee has either that specialty degree or the equivalent of that specialty degree,” Bach says.

Step Two: Register Your Company and Worker in the Lottery

The new lottery process requires less paperwork up front than it has in the past. Companies must complete an electronic registration that asks for just basic information about the company and the worker. There is a $215 registration fee. Only those selected through the lottery will be able to file a petition.

“In past years, an employer would have had to prepare a complete H-1B petition with filing fee checks and send those to the USCIS,” Bach says, “and they would then enter those cases into their system and conduct a lottery. [Now], it’s going to be … just the lottery. And then, for those people who are selected, there will be at least 90 days to prepare and file the H-1B petition.”

Step Three: Submit Form I-129 to the United States Citizenship and Immigration Services (USCIS)

Once selected in the lottery, employers must complete Form I-129 Petition for Nonimmigrant Worker and file it with the USCIS. This is the form to get an immigration approval notice for a foreign worker.

“An attorney is pretty much required for the H-1B process,” says Bach. “Attorneys file the vast majority of H-1B petitions. It’s pretty rare for an employer to file an H-1B petition without legal assistance.”

Not only do employers need to address the legal eligibility issues and complete the forms properly, but “there are also other procedural complexities that would be very difficult for an employer to try to navigate on their own,” Bach says. “Most of those requests for evidence and most of those denials are based on those two issues: whether it’s a specialty occupation that requires a specialty degree and whether the employee has that degree or equivalent.”

Do I Need an Attorney for the Lottery?

Employers are strongly advised to have legal help to file the petition. While the new lottery may make things easier for employers, there is also the potential for complications.

“It’s supposed to be something simple, but unfortunately, much of what the government tries to do that is simple ends up being overwhelmingly complex,” Bach says. “The lottery might turn out to be that way, but for now we’re going to assume that it’s a simple procedure.”

H-1B Extension or Renewal

Once a foreign worker receives a nonimmigrant H-1B visa, they may be eligible to have their visa status renewed or extended.

Generally, the initial H-1B visa covers a period of three years. If conditions are still satisfied, you can renew the visa for an additional three-year period. H-1B visas are limited to one three-year renewal. However, after six years, a foreign worker may still be able to get additional time in the United States — potentially through an adjustment of status.

Find Legal Help

An immigration lawyer can answer your questions about processing times, USCIS approval, and other issues for employment-based visas. It is important for U.S. employers and foreign employees to obtain legal advice on H-1B labor conditions from an experienced immigration attorney.