In today’s global society, US game studios and other tech companies are reaching outside of the country for top talent more than ever.
However, the process for getting the proper visa for foreign tech workers is complex and requires filings and evidence through multiple government agencies. We’ve put together this step-by-step guide to the process to help understand what’s required of both the employer and the potential employee.
Understanding the H-1B Visa Program
The H-1B visa is an employment-based, nonimmigrant visa category for temporary workers. For a game studio or tech startup to hire an international employee, they must first determine that the job fits the definition of a “specialty occupation.”
Under US immigration policy, a specialty occupation is one that typically requires:
- A bachelor’s degree or its equivalent in experience;
- In-depth, particularized knowledge in fields like engineering, mathematics, or technology
The process to obtain an H-1B visa includes several critical steps.
Crucially, employers must guarantee that they will pay the nonimmigrant workers at least the prevailing wage for the occupation. The Department of Labor is responsible for ensuring fair work practices and wages.
Each year, there is a cap of 85,000 H-1B new visas granted, with 20,000 of those visas earmarked for applicants with a master’s degree or higher from a US academic institution. Employers who seek to hire prospective H-1B candidates must begin by filing an H-1B visa petition with the US Citizenship and Immigration Services (USCIS).
Below is a quick checklist for employers to figure out if the H-1B is the right fit:
- Determine whether the employee’s job is a specialty occupation;
- Obtain a certified Labor Condition Application (LCA) from the Department of Labor;
- Submit Form I-129 and supporting documentation to USCIS;
- Pay the required H-1B filing fees; and
- Respond to any USCIS requests for further evidence, if necessary.
This strict visa program is a path for highly skilled workers to bring their talents to the US market, addressing gaps in the workforce and contributing to the American economy.
Luckily, many jobs in the video games and tech industries fall within these requirements. This potentially opens up the talent pool for US game studios worldwide.
Eligibility Criteria for H-1B Visa Candidates
When seeking to hire international talent on an H-1B visa, US-based studios must ensure that candidates meet specific eligibility requirements prescribed by US immigration law.
Educational Requirements
Candidates for an H-1B visa must hold at least a bachelor’s degree (or its equivalent) in the field related to the job offer.
In some cases, substantial work experience—typically at least 12 years—may be considered as an equivalent to a degree, under the principle that three years of relevant experience is equal to one year of higher education. This “three-for-one” rule applies where three years of specialized training or experience is substituted for every one year of college-level education needed to meet the four-year threshold.
If relying on the applicant’s experience, the company must demonstrate the “specialty” expertise gained through “progressively responsible positions relating to the specialty.”
How do you do this? You need to provide supporting documents, such as employment letters from previous jobs, awards or recognitions for such expertise, or writing textbooks or manuals related to the work.
For applicants with non-US baccalaureate degrees in a specific specialty, the studio will have to acquire a foreign equivalency certification from an academic credentials evaluator.
Occupational Eligibility
As mentioned above, the job offered must qualify as a specialty occupation in order to be H-1B eligible. This means that the occupation requires:
- A theoretical and practical application of highly specialized knowledge;
- A bachelor’s degree or higher in the specific specialty as a minimum for entry into the occupation in the United States.
There are four ways that a studio or startup can demonstrate that the role qualifies as a specialty occupation:
- A bachelor’s degree is required as a minimum for entry into the position;
- A bachelor’s degree in a particular field is a common requirement for the role in game development;
- The position is specialized and complex; and/or
- The degree requirement is typical of the hiring company for the offered role or closely similar roles.
The strongest H-1B petitions are those where the employing company can prove more than one of these criteria.
Prevailing Wage Determination
Employers must pay H-1B workers at least the prevailing wage or the actual wage paid to other employees with similar experience and qualifications, whichever is higher.
The Department of Labor determines the prevailing wage based on the job’s:
- Geographical location;
- Experience requirement and job complexity; and
- Industry standards.
By way of example, a job for a software developer role based in Los Angeles county in California that requires a bachelor’s degree in a related field and three years of relevant experience in 2024 has a prevailing wage of $121,222 per year.
The wage is critical because it serves as evidence that the studio’s offer of employment to a foreign national will not undercut the typical wages paid to similarly positioned US workers.
Working with an experienced immigration expert can help determine the appropriate prevailing wage and occupational classification to mitigate risk and costs.
Now that we’ve covered what we need to be eligible for an H-1B visa, let’s look at the actual process for hiring an employee on an H-1B visa.
Initiating the H-1B Hiring Process
To hire H-1B workers, games industry and tech employers must navigate a multi-step process beginning with a Labor Condition Application, followed by registration in the annual lottery, and, if selected, ending with submission of the complete H-1B petition.
Let’s look at each step in turn.
Labor Condition Application
The first critical step for an employer is filing a Labor Condition Application (LCA) with the Department of Labor (DOL).
This application demonstrates that the employer will pay the prevailing wage and ensures the H-1B worker’s employment will not adversely affect US workers’ working conditions.
The DOL must certify (or approve) the LCA before the employer can proceed to the next steps.
Register for the H-1B Lottery
Due to the annual cap on H-1B visas, studios need to register for the H-1B Lottery with the United States Citizenship and Immigration Services (USCIS).
Only after their registration is selected in the lottery can the employer file a full H-1B petition.
Note that for the employee, this registration process only has to be done for the initial H-1B petition.
- When changing from one H-1B employer to another,
- extending an existing petition with the same employer, or
- working for an employer not subject to the annual H-1B cap,
foreign national workers can file those petitions within six months of status expiry.
H-1B Petition Filing
Upon successful lottery selection, the next action is submitting the actual H-1B petition.
Employers should prepare Form I-129, including all necessary documentation, to support the petition. The petition should align with the previously certified LCA and clearly define the specialty occupation role for the potential H-1B employee.
Supporting documentation for game studios and their prospective foreign employees should include:
- Evidence of the studio’s ability to pay the wage discussed in the LCA;
- The employee’s academic credentials (and any experiential documents, if necessary);
- A support letter detailing the nature of the job duties and job requirements; and
- All of the employee’s biographical documents (passport, prior visas, current I-94 record if already in the United States).
While getting all of the paperwork together and filing everything properly can seem daunting, our firm is here to assist! Just head over to our special work visa scheduling tool to set up a consultation to discuss your situation.
Navigating the H-1B Visa Cap
When looking to hire H-1B workers, employers must understand the limitations set by the annual H-1B visa cap. There are two categories under this cap: the Regular Cap and the Advanced Degree Exemption.
Regular Cap
The Regular Cap for H-1B visas is currently set at 65,000 visas per fiscal year.
With the demand often exceeding the supply, employers must prepare their applications for the USCIS registration period, which typically starts on March 1 and ends on March 20.
If the number of applications exceeds the cap, a random selection process (lottery) is conducted.
Advanced Degree Exemption
The Advanced Degree Exemption is a separate allocation of visas for applicants who hold an advanced degree from a US institution.
This exemption provides 20,000 additional H-1B visas specifically for these candidates. Employers hiring individuals with a master’s degree or higher from a US institution can benefit from this exemption, potentially increasing their chances in the selection process.
For more information on the H-1B visa caps, see our post here.
After H-1B Approval
The path forward after H-1B visa approval involves key steps for legal compliance and successful integration of the employee into the company.
Employers must focus on detailed onboarding, visa stamping procedures, and adhering to tax obligations.
Employee Onboarding
Once an H-1B visa is approved, the employee must be effectively onboarded into the company. This process includes:
- Orientation: Familiarization with company policies, workplace culture, and job-specific training.
- Documentation: Completing the required employment forms including the I-9 for employment eligibility verification.
H1B Visa Stamping
H1B visa stamping is a crucial step for the employee to legally enter the United States. There are two main parts to this step:
- Consulate Appointment: The employee schedules an interview at a US Embassy or Consulate in their home country.
- Documentation: The employee must provide the H1B approval notice (Form I-797) and other required documents during the interview.
Social Security and Tax Compliance
Upon arrival, H1B workers must ensure compliance with social security and tax requirements:
- Social Security Number (SSN): Employees should apply for an SSN, which is necessary for tax purposes and to legally work in the US
- Tax Forms: Employees need to fill out IRS Form W-4 to determine federal income tax withholding and may require additional state tax documentation.
Failure to properly take these additional post-approval steps could lead to trouble with the employee’s visa, so it’s important to take them seriously.
Employer Responsibilities and Compliance
When hiring H-1B workers, employers must adhere to a stringent set of obligations to comply with US Department of Labor regulations.
Most important is that employers are tasked with providing wages that are either the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications, or the prevailing wage level for the occupational classification in the area of employment.
Wage Obligations
- Pay nonimmigrant workers the higher of the actual wage or prevailing wage
- Maintain payroll records for public examination
Labor Condition Application (LCA)
- Obtain a certified LCA from the Department of Labor
- Ensure the LCA matches the H-1B petition
Public Access Files
Employers must maintain a public access file containing:
- A copy of the LCA
- Documentation of the wage rate
- Explanation of the system used to set the actual wage
- A summary of benefits offered to US workers and H-1B workers
Non-Discriminatory Hiring Practices
It is critical that employers engage in non-discriminatory hiring practices.
H-1B employers are exempt from proving they have recruited US workers unless they are considered H-1B dependent or have been found to be willful violators of H-1B requirements in the past, according to the US Department of Labor.
Recordkeeping
Employers must keep detailed records, including:
- Evidence of compliance with the LCA
- Wages paid to H-1B workers
- Working conditions
- Notification to US employees of the intent to hire H-1B workers
Failure to comply with these requirements can result in penalties, fines, or bars on sponsoring future workers.
Employers should ensure they meet all responsibilities to maintain program integrity and fair treatment of employees.
Wrapping up
The process for recruiting a foreign employee for your game company under the H-1B visa scheme can be daunting!
In order to stay compliant and to maximize your changes of obtaining the visa for your potential employees, it’s best to seek a professional to prepare and file the needed documentation. Need help? Just click this link to set up a consultation or visit our contact page for more contact info.
Frequently Asked Questions
Navigating the complexities of H-1B visa sponsorship involves understanding the specific requirements and processes. These FAQs provide concise answers to guide employers through the hiring of H-1B workers.
What is the process to sponsor an initial H-1B visa?
An employer begins by identifying a qualifying position and potential candidate. They must then obtain a Labor Condition Application (LCA) approval, file Form I-129, and pay the required fees.
Successful registration in the H-1B lottery is required before petition submission if subject to the annual cap.
What types of jobs are eligible for H-1B visas?
Jobs that typically qualify for H-1B visas are ones that necessitate specialized knowledge in fields such as information technology, engineering, finance, and other highly technical disciplines that normally require a bachelor’s degree in that field.
What are the steps involved in the H-1B visa petition process?
The process includes obtaining LCA certification, registering for the H-1B lottery during the designated period (usually over a two-week period in mid-March), and if selected, submitting the full H-1B visa petition to USCIS.
Thereafter, the prospective employee applies for the visa at a US Embassy or Consulate if outside of the United States. If the foreign national employee is already in the United States, all new H-1B cap visas have a validity date of October 1 of the following fiscal year.
Can an employer hire a current H-1B visa holder?
Yes, an employer can hire someone on H-1B status with a different sponsoring company through a process known as H-1B transfer or H-1B change of employer petition.
This requires a new LCA and a modified H-1B petition to USCIS, and this type of H-1B petition does not need to go through the annual cap lottery.
What are the legal regulations for employers hiring H-1B workers?
Employers must comply with Department of Labor regulations, including paying the prevailing wage to the employee, maintaining a public access file, and ensuring no adverse effect on working conditions of US workers. They must not discriminate on the basis of nationality or citizenship.
Consulting your immigration attorney is recommended to ensure compliance with federal laws that govern the employment of foreign nationals.
How much does it typically cost an employer to sponsor an initial H-1B visa?
Costs typically include a base filing fee for Form I-129, a fraud prevention and detection fee, an American Competitiveness and Workforce Improvement Act (ACWIA) fee, and potentially a Public Law 114-113 fee if a large percentage of the studio or startup consists of H-1B and L-1 employees.
It can total several thousand dollars, not accounting for legal or ancillary fees. In addition, USCIS accepts premium processing requests, which guarantee an initial decision on an expedited timeline; the premium processing filing fee is currently $2,805.
If a studio is strapped for cash, they should ask their immigration attorney to prepare the H-1B petition on a flat-fee basis to ensure the legal costs do not go over budget. Our firm offers flat fee H-1B related services – please contact us for more info!
