Approved H-1B? Get the Ball Rolling on Your Consular Application Now!

28 July 2014 Labor & Employment Law Perspectives Blog

Getting an H-1B nonimmigrant visa for new employment with a private employer in the United States has become an obstacle course that now even requires winning a lottery. The process has become so complicated that H-1B beneficiaries lucky enough to find a bona fide offer of employment, win the visa lottery, and actually have their case approved by U.S. Citizenship and Immigration Services (USCIS) still cannot start to work in H-1B status until October 1, 2014.

And if that were not bad enough, there is an additional hurdle that H-1Bs who are outside the United States or who were not eligible to change status in the United States have to overcome: a visit to a U.S. Consulate abroad to obtain an H-1B visa stamp based on the USCIS approval. Although some aspects of the procedure vary from consulate to consulate, this process generally involves filing an online visa application, paying a fee, and being interviewed by a consular officer.

Employers and their H-1B employees who need to consular process an H-1B visa stamp before October 1, 2014 take heed. According to the U.S. Department of State regulation found at 9 FAM 41.53 N8.4(b), consular posts can accept H visa petitions and issue visas up to 90 days in advance of the employment start date. Even though the corresponding visa will not be valid for entry into the United States until 10 days prior to that date, it makes sense to take advantage of this favorable rule given that consular processing can be subject to long wait times and other administrative delays. For employers in the U.S. who have future employees outside the U.S. or unable to change status in the country with pending employment start dates, they should strongly consider notifying their candidates there is no time like the present to take advantage of what seems to be one of the few “friendly” provisions relating to the H-1B visa.

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