Professionals: H-1B Petition Procedures if Outside the United States

There are three steps involved in an H-1B petition if a person is physically outside the United States. The first step is obtaining a certified Labor Condition Application (LCA). The second step is filing an H-1B petition with the USCIS. The third step is applying for an H-1B visa at an overseas U.S. embassy or consulate.

After securing the certified LCA, as discussed in greater detail elsewhere, a prospective H-1B employer files a Form I-129, H Supplement, H-1B Data Collection Sheet, all supporting evidence and the appropriate filing fees with the USCIS. An H-1B petition may be filed up to six months prior to the commencement date of the contemplated H-1B employment.

Upon approval of the H-1B petition, the USCIS issues a Form I-797 Notice of Action Approval Notice. Concurrent with the issuance of the Form I-797, Approval Notice, the USCIS sends a cable notifying the selected overseas U.S. embassy or consulate of the H-1B petition approval.

Finally, after approval of the H-1B petition, the prospective H-1B employee applies for an H-1B visa at an overseas U.S. embassy or consulate. Every U.S. embassy and consulate has its own special rules for visa applications. It is essential to review the procedures prior to the H-1B visa application. In addition, all U.S. embassies and consulates require a personal interview prior to the issuance of an H-1B visa.

When submitting the H-1B visa application, a Form DS-156 must be submitted along with the original Form I-797, Approval Notice and any supporting evidence. If the H-1B visa applicant is a male between the ages of 16 and 45, a Form DS-157 is also required. Any spouse and each unmarried child under the age of 21-years old must also submit a Form DS-156 to apply for an H-4 visa. Each male child between the ages of 16 and 20 must also submit a Form DS-157.

H-1B and H-4 visas are normally issued for a validity period corresponding with the validity period stated on the Form I-797, Approval Notice. Most H-1B visas are issued allowing multiple entries. However, due to agreements between the United States and certain countries, the validity period may be less and entries may be limited to a specific number.

Canadians with a Form I-797, Approval Notice for H-1B or H-4 status are not required to apply for a visa at a U.S. embassy or consulate. Canadians need only apply for an H-1B/H-4 admission stamp at a U.S. port of entry for admission using the Form I-797, Approval Notice.

Entering the United States with an H-1B Visa

When an H-1B visa holder enters the United States, he/she receives a Form I-94, Arrival/Departure Card indicating H-1B status. The Form I-94 records the date and place of admission into the United States, the visa classification and the date the authorized stay in the United States expires. The Form I-94 is normally issued with an expiration date of the H-1B visa and the From I-797, Approval Notice.