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H1-B Visa

Are you looking to bring non-immigrant workers to the United States? Contact our offices to discuss the H1-B visa program today!

What is a H1-B Visa?

The H1-B visa program allows employers to hire/bring non-immigrant foreigners into specialized positions. These are specialty occupations that require individuals with distinguished merit and skills. For US employers who cannot find requisitely skilled US employees, this program allows them to fill their positions with the skilled professionals they need from outside the US. In the same fashion, a company that would like to hire a specific specially skilled foreigner worker, must also go through the same process to sponsor that worker for an H-1B visa. Foreign workers can be eligible for an H-1B visa if they are outside of the country or, in some cases, if they are legally in the US on a different non-immigrant visa. To determine a specific foreign worker's eligibility, individuals should consult an immigration attorney.

An H-1B status is generally, and initially, awarded for a temporary three-year period, with an option to extend the visa for an additional three years. Although the total time generally cannot go beyond a total of six years, there are some limited exceptions.

H-1B is a non-immigrant status, which means that it does not lead directly to permanent residency/green card. However, H-1B holders can be later sponsored by their employers for permanent residence.

The H1-B category has an annual (fiscal year) limit, or cap, of 65,000 visas. The number of applicants always exceeds the cap, so a lottery system is in place to randomly select cap-subject applicants. However, some occupations are not subject to the cap. An additional 20,000 H-1B visas are allotted each year for applicants with a master’s degree or higher from a U.S. university. Applicants who are being sponsored by US institution of higher education, related non-profit entities and research organizations are not subject to the annual H-1B cap.

Employers who hire H1-B nonimmigrant workers must either pay the same wage as they would to any other US citizen with the required experience and qualifications, or they must pay the prevailing wage for that occupation. Employers must pay the higher wage of these two options. Employers must also provide ensure the same benefits to their H1-B workers as they would to a US citizen employee in that position.

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H-1B Visa Requirements

For a foreigner to be eligible for an H-1B visa they must meet specific requirements. First, their field of work must be in a specialty occupation that requires a highly specialized knowledge. They must also have a bachelor’s degree, or higher, in that specialty, or the equivalent of such a degree(s). The degree must be from an accredited college or university and a foreign degree must be equivalent to a US bachelor’s, or higher, degree. For example, an individual with an advanced degree in engineering cannot take a position requiring a degree in accounting.The foreign employee must also have any required licensing, registration and/or certifications. The foreign employee may have education and training, along with the progressive experience that is equivalent to a US bachelor’s or higher degree in that field.

An intended H-1B position must entail a degree requirement; the degree required must be common in the industry for such a position. Alternatively, the complexity or uniqueness of the position must require an individual with a degree to carry out the intended work.

H1-B Visa Process Forms

There are various forms required as part of the process to obtain an H-1B visa for a foreign employee. First, an employer must file Form 9035E/9035 – Labor Condition Application. This is filed with the Department of Labor and must attest that a US citizen is not available for the position and that pay is commensurate with the position within the US. After LCA approval, the employer must file Form I-129 – Petition for a Non immigrant Worker. This is filed with the US Citizenship and Immigration Services (USCIS). Supporting information, documents, and payments are provided at this time. Premium (or expedited) processing may be available for an additional fee. Finally, there may be various forms associated with potential change of status or consular processing steps that the intended foreign worker must go through depending on whether they are legally in the US or if they are located outside of the US.

What is The h-1B Lottery?

Step 1: Labor Condition Application (LCA)
There is an online registration process to be considered in the lottery. USCIS selects the lottery winners at the end of their specified filing window. The filing window to be considered in the H-1B visa lottery currently runs March 1 – March 20. The company must be registered prior to this filing window. Registrations for specific applicants being sponsored by their employer cannot be entered prior to the opening of the filing window. The results of H-1B lottery will be made available annually in April and May. A notice will be issued for employers to file the selected H-1B petitions for adjudication within 90 days.

Step 2: Compiling forms and letters
All necessary forms and letters for the H-1B petition and PAF must be correctly prepared. Forms are prepared using details provided by the employer and employee in their questionnaires and documents. The forms are prepared and sent to the employer for signature with the certified LCA. The Public Access File (PAF) is prepared and forwarded with the documents for signature to the employer. The PAF is kept at the employer’s location and must be available for review if requested by either a member of the general public or U.S. government officials.

Step 3: Submission and Processing
H-1B petitions are submitted through on online system. The results of H-1B lottery are generally made available towards the end of May. A receipt notice is issued for selected petitions. All other petitions are rejected and returned to the employer. The employer will usually receive the receipt notice when the petition has been selected or the rejected petition by the beginning of July.

Step 4: Adjudication of Selected Petitions
If a petition is selected, the employer may receive a Request for Further Evidence (RFE). This has become a routine practice with USCIS as officials have placed increased scrutiny on immigration processes in general and employment-based visas in particular. The employer is given 84 days to respond to the RFE. Within this time frame the employer must submit all additional information and documentation requested. If this is not done in the proper time span, the petition will be rejected. If approved, the employee will be eligible to begin work on an H-1B status from October 1 or later, depending on when the petition is adjudicated. However, petitions can be pending long after the October 1.

Step 5: Change of Status/ Consular Processing
Once the H-1B visa is approved, the intended foreign worker will either go through a Change of Status process or Consular Processing as follows:

The Change of Status process applies to workers who are in the US on a different, valid non-immigrant visa and are therefore changing their status to an H-1B. USCIS will update the individual’s I-94 record to indicate their new H-1B visa status after it is approved. The foreign worker will then be able to work in his new position.

Consular Processing applies to foreign workers located outside the US. Additionally, some foreigners -- depending on their status in the US -- may also be required to return to their home country to get their visa stamped at a US Embassy/Consulate. Consular Processing is a separate process and requires its own application forms and documents.

What Occupations Qualify for an H-1B?

Various types of occupations can qualify for H-1B status. These are generally professional occupations often in such fields as physical and social sciences, business administration, mathematics, engineering, among others. The minimum requirement for such positions is a bachelor’s degree or its equivalent. So, for instance, specialized engineering positions may fall into this category, but a ride-share driver would not. Examples of qualifying applications include accountants, biologists, doctors, engineers, network administrators, economists, as well as higher education professors or educators. This is not an exhaustive list and individuals and/or companies should consult an immigration attorney to determine if an intended position may qualify for an H-1B status.

Timeframe for getting an H-1B visa.

The time frame for getting an H-1B can vary depending on the circumstances of each particular case. The length of time is also dependent on various government agencies, including the DOL and USCIS. The processing times for such agencies can vary. The overall process will often take six or more months. It is important to note that premium processing may be available for some cases, which can help to speed up the process. Average processing times are available through USCIS but an experienced immigration attorney may be able to provide a better time frame based on the specific of the individual case. Due to the aforementioned time frames, it is generally recommended that H-1B applications be submitted to USCIS six months before the H-1B start date. Employers subject to the cap should submit in April when the 65,000 H-1B visas become available. Submissions much later than that run the risk of not being approved because no more visas are available.

Do you need to speak with H-1B Lawyer?

If you would like to talk to a lawyer about H-1B Visas, contact an attorney at Shoreline Immigration. We are available to answer all of your questions about Employment Immigration.

Questions about the H-1B Visa?

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Can Spouses and Children of a H-1B Visa holder eligble to come to the United States?

Spouses and children (dependents) of H-1B status holders are eligible to come to the US by applying for H-4 status. Dependents family members include a spouse or unmarried children under the age of 21. Dependents who are already in the US on a different valid, non immigrant visa may apply for change of status through USCIS. The duration of the H-4 visa status is the same as the principle H-1B status holder’s visa duration. While H-4 status holders are generally not allowed to work in the US, they are allowed to attend school. (H-4 status spouses of certain H-1B visa holders can file for Employment Authorization. Individuals should consult an immigration attorney to see if they qualify.)

Can I change jobs after the H-1B is approved?

An H-1B approved foreign worker may not change jobs and maintain their original H-1B approved status. H-1Bs are specific to an employer/position. This means that an H-1B employee cannot change jobs and continue with their H-1B status. The only way an H-1B employee can change jobs is if the new employer sponsors the foreign worker and the entire H-1B approval process is carried out again. Similarly, if an employer wants to change the terms of the employee’s job, they must submit an amended position to USCIS. This means that an employer cannot significantly change duties or conditions of employment with proper authorization. If the employer amendment is approved, then the H-1B may be continued.

Is there a cap on the number of H-1B visas allowed?

There is a cap on the number of H-1B visas allowed per federal fiscal year. That cap is currently 65,000 H-1B visas. Because there is a cap for the entire country, it is important that employers file their applications in a timely manner. However, certain groups are exempt from this H-1B cap, including universities, related nonprofit entities, nonprofit research organizations, and government research organizations. Because these groups are exempt, they are able to file their applications at any time throughout the year. Additional exemptions may apply for certain individuals. An experienced immigration attorney should be consulted.