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Guide to H-1B visas for employers

Why H-1B visas are issued and how employers can help.
November 24, 2022
Oyster Team
Work visa

Professionals who live outside the U.S. but wish to work in the country must apply for a visa from the Department of State in most cases. Sometimes, it may make sense for an employer to acquire an H-1B visa for remote workers. If you’ve never sponsored a worker’s visa before, you probably have some questions about the process. This guide outlines why these visas are issued and how employers can help eligible workers.

What is an H-1B visa?

An H-1B visa is a work visa that allows temporary workers to fill specialty occupations in the U.S. This visa is a nonimmigrant, employer-sponsored visa for positions that typically require at least a bachelor’s degree and call for specialized knowledge. With this visa, American employers can fill roles with foreign talent to meet needs that may not be met by the U.S. workforce alone. The visa expires within three years but may be extended to reach a maximum of six years.

Although the H-1B visa is a useful tool for foreign workers and employers alike, it does come with some caveats. For one, the application process can be complicated. For another, the government caps the number of visas issued each year.

Currently, the U.S. Citizenship and Immigration Services (USCIS) has capped the number of H-1B visas issued each year at 65,000 due to high demand. An additional 20,000 visas are available for workers with a master’s degree or above. Following the application process, selection for H-1B visas takes place via a lottery process in which candidates are randomly selected.

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How do you get an H-1B visa for an employee?

If you’re interested in acquiring an H-1B visa for an employee, there will be several steps involving the U.S. State, Labor, and Immigration departments. Here’s a brief, step-by-step H-1B visa guide for employers.

1. Obtain a prevailing wage

If you’d like to sponsor an employee to work under an H-1B visa, you must start by obtaining a prevailing wage. This indicates the basic hourly wages and benefits paid to employees in specific locations. Using a prevailing wage prevents foreign workers from being underpaid compared to other workers who provide similar services in similar occupations or industries. 

Employers can obtain a prevailing wage by putting in a request to the National Prevailing Wage Center or by accessing the Online Wage Library (OWL). There may be other sources of wage information to consider, or you may choose to have a survey conducted by an independent source.

2. Complete Form ETA-90035

After obtaining the prevailing wage, the next step is to submit a Labor Condition Application (LCA) to the U.S. Department of Labor. This document must be completed electronically by any employer who wishes to hire a foreign national through an H-1B visa. You’ll file the document online through the Foreign Labor Application Gateway (FLAG) system at least six months prior to the employee’s anticipated start date.

For employers with no internet access or disabilities that prevent them from submitting the form online, it may be possible to file the ETA 9035 by mail by putting in a request with the Office of Foreign Labor Certification.

3. Submit Form I-129

Following the LCA process, you may then file the H-1B petition by completing form I-129, or the Petition for Nonimmigrant Worker. You’ll also need to provide an employment letter, which should outline the worker’s roles and responsibilities, salary, dates of employment, and any other pertinent details. Other supporting documentation may include any training, membership, or academic qualifications that make the employee eligible for the specialty work.

4. Check petition status

Once your H-1B visa application has been submitted, you’ll need to check its status on the USCIS website by entering your petition’s receipt number. Keep in mind that general processing times for H-1B status may vary, but it typically takes two to six months for a determination to be made.

5. Have the employee complete the application

If the I-129 is approved, the employee will receive Form I-797 Notice of Action. Employees who are in the U.S. will automatically have their immigration status updated to H-1B, and the USCIS will update I-94 records accordingly. The status must be updated prior to the start of employment. The employee must also submit form DS-160 and receive an H-1B visa stamp within 90 days of starting work.

If the application was submitted while the employee was outside of the U.S., they will have to fill out form DS-160, appear for an interview with the U.S. embassy or consulate, and apply for a nonimmigrant visa with the U.S. embassy. If they receive a visa, they will be able to travel to the U.S. before the time on the visa’s expiration date.

What to do if the H-1B visa is denied

There are several reasons why an H-1B visa might be denied. Oftentimes, the visa is denied or refused because the employer may not appear to be an established organization. For instance, they may not have supplied the proper documentation to prove revenue. It’s also possible that the employment may not qualify as a specialty occupation under the U.S. government’s definition. Regardless of the reason for denial, it’s possible to either refile the application or appeal the decision.  

H-1B visa requirements are stringent, and the application process can be tedious and complex. One simple misstep or oversight could result in the visa being denied. Fortunately, Oyster specializes in eliminating the legal hassle of hiring across borders. Find out more about how we can help you build your global team without any headaches.

About Oyster

Oyster is a global employment platform designed to enable visionary HR leaders to find, engage, pay, manage, develop, and take care of a thriving distributed workforce. Oyster lets growing companies give valued international team members the experience they deserve, without the usual headaches and expense.

Oyster enables hiring anywhere in the world—with reliable, compliant payroll, and great local benefits and perks.

About the Author

Oyster is a global employment platform designed to enable visionary HR leaders to find, engage, pay, manage, develop, and take care of a thriving distributed workforce.

About the Author

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