The U.S. H1B visa is a type of non-immigrant visa that permits companies in the United States to hire graduate level employees in specialty occupations that require technical or theoretical expertise. This may include work in specialized fields like finance, IT, science, engineering, medicine, architecture, mathematics, or accounting. Applying for a non-immigrant visa is often faster than applying for a green card. However, it can be challenging to acquire an H1B visa due to the visa cap.

Trump’s Green Card Ban

The current U.S. travel ban caused by the novel Coronavirus has prevented countless immigrants from entering the country. On April 22, 2020, President Donald Trump issued Proclamation 10014, Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak. However, there are some exceptions. Spouses and dependents of H1B visa holders currently in India are exempt from the U.S. travel ban.

The proclamation states that anyone on a H1B, H2A, H4, or J1 visa who did not hold a valid visa as of June 24th would not be allowed to travel to the U.S. until December 31. Indians are the largest nationality group waiting for employment-based green cards. According to the Cato Institute, skilled Indian workers make up approximately 75 percent of the employment-based visa backlog with more than 200,000 still waiting for green card approval.

Indians in line for an employment-based green card could actually benefit from Trump’s recent proclamation. In September, the end of the fiscal year will cause any unused family-based green card numbers to roll out to the employee-based visa quotas for the following fiscal year that begins on October 1st. Due to the proclamation, there may be an advancement in priority dates which could be beneficial for Indians who have been unable to file for the last step of the green card process.

Applying for an H1B Visa

H1B visas can only be applied through an employer, meaning you cannot apply for a H1B visa from India by yourself. The H1B visa is tied to a particular employer and if you change your employer, it could affect your visa status. In addition, family members in the U.S. cannot sponsor an H1B visa.

To apply for an H1B visa from India, you must follow several important steps:

1. Applicant Finds an H1B Sponsor

The H1B visa is a work visa meaning the applicant must be approved by a U.S. employer to apply. Before applying for the H1B visa, you must make sure that you will have employment with a U.S. company when you enter the United States. Make it clear from the start of the job application that you will need to be sponsored to enter the U.S.

2. Employer Submits Labor Conditions Approval (LCA)

After being hired by a U.S. company, your employer will start the application by submitting a Labor Conditions Approval to the Department of Labor. This can be done over the internet using the FLAG System. An LCA will inform the DOL about various elements of the job, such as the location, working conditions, and pay. Due to the complexity of this document, you will need to work with your employer to ensure that all information is accurate and meets the requirements of the DOL.

3. Employer Submits Form I-129

If the LCA is approved, the employer will then need to file Form I-129, Petition for a Nonimmigrant Worker. This step of the process requires an evaluation of the worker’s education and experience. The employer will also need to submit certain documents, such as training certificates, the applicant’s resume, letter of support, and employment agreement. There are also fees involved. The processing time can take 3 to 4 months.

4. Applicant Complete Application at U.S. Embassy

If the visa petition is approved, the applicant can complete the process at their home country’s U.S. embassy office or consulate. This process usually only takes a few days but can vary based on location.

The H1B Visa Lottery

The USCIS uses a computer-generated random selection process for choosing H1B visa applicants. This is known as the H1B lottery. The H1B visa lottery was put in place in response to the high number of H1B visa applications that are received annually.

When the amount of visa applications exceeds the annual cap, the USCIS randomly selects the number of petitions allotted. If you are not chosen during the H1B lottery, the USCIS then returns your petition and filing fee and you must wait until the following year to submit your application and try again.

Consult with an Immigration Attorney

Applying for a H1B visa from India can be a long and tedious process. Any errors made on the application or petition can result in extended delays and possibly lost employment in the U.S.

An experienced immigration attorney can assist with the preparation of all forms and documents necessary for obtaining an H1B visa. An attorney can also guide you through the process and answer any questions you may have along the way. Reach out to the qualified immigration attorneys at JacksonWhite Law today for a consultation.


Call our Immigration team at (480) 626-2388 or fill out our contact form below.

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