Our Law Firm provides legal advice to companies, academic institutions, and individuals preparing and filing H-1B, H-1B1, and H4 Visa applications, renewals, changes of employer and amendments. We also assist clients responding to government petitions for further evidence (RFE’s) and submitting petitions for premium processing.
The Firm also helps the client assess if the H-1B is the most appropriate Visa for the employee and what alternatives are available to the H-1B Visa according to the specifics of the offered position. Often, another work Visa such as an O Visa, E Visa, L-1 Visa or J-1 Visa may be immediately available and be a good or better fit for the position offered.
H-1B VISA GENERAL INFORMATION
- What is the H-1B Visa?
- Are there a limited number of H-1B visas?
- What is “Specialty Occupation”?
- What qualifications must an H-1B visa candidate have?
- When to apply for an H-1B visa?
- Where to apply for an H-1B visa?
- What documents do I need to submit with an H-1B visa application?
- What fees are involved in the process of an H-1B visa?
- How long can a person be in an H-1B status?
- Who can an H-1B alien work for?
- Must an H-1B alien be working at all times?
- What is the status of the spouse and unmarried children of an H-1B alien?
- How can an H-1B alien extend the H-1B visa?
- Can the H-1B alien travel?
- Can the H-1B alien change employer?
- Can the H-1B alien apply for permanent residence (green card) from an H-1B visa?
- Can a person change status from a different type of visa to an H-1B visa?
- What if the employment circumstances change?
The H-1B visa allows foreign professionals to enter the United States and accept temporary employment within their professional specialty.
The H-1B visa is an employer sponsored visa. Only candidates with an employer as sponsor may qualify for this visa.
The term H-1B comes from section 101(a)(15)(H)(i)(b) of the Immigration and Nationally Act (INA) that refers to a visa petition for an alien who comes temporarily to the US to perform services in a specialty occupation.
The H-1B visa is subject to an annual quota restriction. For fiscal year 2012 and 2013 the cap is 65,000 visas each year. Under certain circumstances, candidates may be exempt from this quota or apply under an additional quota of 20,000 visas for candidates with a Master’s degree obtained from a U.S. university.
The Immigration Act of 1990 defines a specialty occupation as an occupation that requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation. A specialty occupation requires a bachelor’s degree or its equivalent. Examples of specialty occupations are: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
The position offered must qualify as a “specialty occupation.” Additionally the position must meet certain criteria requirements:
- A baccalaureate or higher degree (or its equivalent) is normally the minimum requirement for entry into the particular profession.
- The degree requirement is common to the industry.
- The employer must normally require a degree or its equivalent for the position.
- The job functions must be so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
- The position’s level of responsibility and authority must be commensurate with professional standing.
In addition to the required degree or its equivalent, in some cases the H-1B visa holder must possess a certificate or license that permits the alien to practice the profession in the state of intended employment.
It is advisable to start applying at least 6 months prior to the proposed starting date. For most H-1B candidates the visas for the new fiscal years are effective starting October 1st. The H-1B can be requested at least 6 months before October 1st (April 1st). We recommend that you contact us to determine the eligibility of the candidate. Contact us.
If the alien qualifies for the H-1B status, the employer must obtain the Labor Conditions Application (LCA) from the Labor Department. Once the certified LCA is received, the H-1B petition is filed with the U.S. Citizenship and Immigration Services.
The petition must be accompanied by personal information and supporting documents such as degrees or academic records, licenses to practice a profession, attestations of previous employment and other documents attesting to the alien’s qualifications. Any documents in a foreign language must be accompanied by an English certified translation. Credentials from foreign academic institutions must be evaluated for U.S. equivalency by a recognized credentials evaluation service.
The base government fee to process the application form is $325.
There is a government employer-founded training fee of $1,500 ($750 for companies with less than 25 employees). Institutions of higher education, non-profit research organizations or government research agencies may be exempted to pay the training fee.
All employers have to pay a $500 government fee for the Fraud Prevention and Detection Fee upon the initial application for an H-1B visa for a particular employee.
The USCIS offers the premium processing service. For an additional $1,225 fee USCIS will process an H-1B petition in 15 days.
If the employee has dependents there is a $290 government fee for the change of status/extension of stay application for dependents.
In a hypothetical case, an employer with less than 25 employees and non-exempted to pay the training fee and using the premium processing service will have to pay a total of $2,800 to sponsor an employee, or $1,575 without the premium processing fee.
Contact us and we can provide you a specific cost assessment for your specific situation.
An alien can be in H-1B status in up to 3 year increments for a maximum period of six years at a time. After the six-year period, if the alien wants to apply for H-1B status, he must remain outside of the United States for a period of one year. Under certain circumstances the H-1B status can be extended an additional 7th year. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the six-year maximum period, when:
365 days or more have passed since the filing of any application for labor certification, or
365 days or more have passed since the filing of an employment based immigrant petition.
The H-1B visa is employer specific. The sponsored alien may only work for the employer who filed the petition and must perform only the activities described in the petition. H-1B aliens may work for more than one U.S. employer but they must have a Form I-129 petition approved by each employer.
As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
If the employer dismisses the alien prior to the expiration of the authorized stay, the employer is liable for the reasonable cost of return transportation for the alien abroad.
The spouse and unmarried children (under 21) of an H-1B worker are entitled to remain in the United States under H-4 immigration status. Applications for H-4 classification should be included in the petition for the H-1B worker if the dependents are in the U.S. Dependents in H-4 status are not permitted to work but they are allowed to study.
The employer and employee should discuss their visa extension plans at least 6 months before the expiration date on the H-1B visa. The process of the H-1B extension is very similar to the initial application process. Upon completion of the 6 years the H-1B visa can be extended only if there is a pending petition for a green card for the same employee that was filed prior to the end of the 5th year.
In most cases yes. An H-1B visa holder traveling outside the US should be certain to have all necessary documents for entry into all countries he or she intends to visit and for re-entry into the U.S.
In most cases the H-1B alien may travel outside of the US while the extension petition is pending until the expiration date of a valid H-1B status. If the visa expired and the alien still has not received a new approval notice the applicant should normally not travel outside the U.S. An H-1B alien needs the approval notice for the extension to re-enter the U.S. Normally, while the H-1B alien has a pending H-1B extension the person may continue working for 240 days beyond the expiration date of its valid H-1B visa.
Under the portability provisions of Public Law 106-313 (Title I), Section 105, it is possible to transfer the H-1B status to another employer. The new employer must timely file a new I-129 petition on the alien’s behalf. Upon receipt by the new employer of the receipt notice from USCIS, which indicates that USCIS has received the petition and the date on which it was received, the beneficiary is eligible for employment with the new sponsor.
Yes. If the employer files a permanent labor certification with the Department of Labor 365 days before the expiration of the maximum allowed time (six years) of the H-1B status, the employee can remain in the same work extending the work visa in increments of one year at a time until getting the permanent residence.
An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward lawful permanent resident status without affecting H-1B status.
During the time the application for legal resident is pending, the alien may travel on his or her H-1B visa without obtaining an advance parole to return to the U.S.
Yes. Certain aliens holding different visa status categories may change their status to H-1B. The most common exception encountered is non-immigrants in J-1 status that are subject to the two-year foreign residency requirement. Also aliens entering under the Visa waiver program are not eligible to change to H-1B without leaving the Country
As long as the alien continues to provide H-1B services for a U.S. employer, most changes in the employer will not mean that an alien is out of status. The merger or sale of an H-1B employer’s business will not normally affect the alien’s status. But, if the alien is working in a position other than the one he was sponsored, he is in violation of his H-1B status.