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What is the H-1B Visa?

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The H-1B visa is a non-immigrant work visa that allows foreign citizens to work in the United States for up to six years. It is a dual-intent visa, which means that a foreign citizen in H-1B status has the option to apply for permanent residency (a green card). It is specifically designed for employees in “specialty occupations.” The 1990 Immigration and Nationality Act defines a “specialty occupation” as a job “that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Examples of “specialty occupations” include accountants, lawyers, engineers, architects, doctors and teachers. Fashion models can also apply for H-1B visas.

There are a limited number of H-1B visas available each fiscal year. The general cap is 65,000 H-1B visas, with an additional 20,000 for foreign citizens who have obtained a masters degree or higher at a U.S. university. It is therefore recommended to start the application process well in advance of the employee’s start date.

Our firm has successfully represented clients in H-1B Specialty Occupation Visa cases, view our H-1B Specialty Occupation Visa Success Stories.

The H-1B Petition Timing

Because of the limited number of H-1B visas available each fiscal year, all H-1B petitioners are advised to submit materials for a cap-subject petition to U.S. Citizenship and Immigration Services (USCIS) as early as possible. The earliest date a petition for an H-1B visa may be submitted is April 1 for the following federal fiscal year, which begins October 1. October 1 is also the first day that a foreign citizen in H-1B status is eligible to work.

Due to the ever-increasing number of H-1B petitions, it is highly recommended that H-1B petitions for a fiscal year (which begins in October), be received by USCIS during the 1st five days of April. If the cap is met at the beginning of April, all petitions received and filed during the filing period will be entered into a lottery. If the cap is not met at the beginning of April, H-1B petitions will be accepted on a daily basis until the cap is met.

Petitioners should be aware that if USCIS receives an H-1B petition before April 1, it will be rejected. Petitioners should therefore carefully time when they mail their H-1B petitions to ensure they do not arrive before April 1.

Petitions not subject to the cap, such as for an H-1B change of employer where a cap number was previously granted to the beneficiary or for an H-1B cap exempt employer may be filed year round.

H-1B Petition Requirements

An employer sponsors a foreign employee by filing an H-1B petition on his or her behalf.

Before filing an H-1B petition, the employer must file a Labor Condition Application (LCA) with the Department of Labor. The LCA must show that no U.S. worker will be displaced or negatively affected by the foreign citizen’s employment. The LCA must also show that the employer will pay the foreign citizen the higher of either the prevailing wage or the actual wage. The Department of Labor provides guidelines to help determine the prevailing wage in a specific geographic location (such as New York City). The actual wage is the wage paid to other employees at the same location with similar qualifications and experience. At the time the LCA is filed there cannot be any strikes or lockouts due to labor disputes with the employer where the foreign citizen will be working. LCAs can be filed online, and generally take the Department of Labor one to three weeks to approve.

In addition to an approved certified LCA, the H-1B petition itself requires a number of other documents in support of the petition. The extent of documentation required depends on the specialty occupation and the foreign citizen’s individual circumstances. Required documentation includes:

• Proof of professional qualifications, such as a bachelor’s degree (or higher), or its equivalent. If the degree was obtained outside the U.S., a professional evaluation of the degree should be submitted to prove the foreign degree’s equivalency to a U.S degree. If the foreign citizen does not have a degree, three years of progressive experience can count for every one year of study, but the petitioner should also submit letters detailing proof of experience and have the employee’s experience professionally evaluated.

• Proof of legal status if the foreign citizen is already in the U.S. when the H-1B petition is submitted, including proof that legal status will be maintained until October 1.

• Letter from the employer stating the nature of the business, the professional nature of the position, including why a degree is required, the foreign citizen’s qualifications for the position, and the terms of employment, including the location where the employee will be working. If an employment contract exists, it should be included as an attachment to the letter. If the person is being hired for specific projects, proof of the existence of those specific projects should also be included.

• If the position is not normally seen as a professional position, proof of its professional nature should also be submitted.

An employer can prove the professional nature of the job by showing the position meets one of four criteria: a bachelor’s degree or higher, or the equivalent of a degree, is the minimum requirement for the position; most organizations in the industry normally require a degree for the position; the employer usually expects a degree, or its equivalent, for the position; or the complexities of a position are so specialized that the position requires someone with a degree or knowledge equivalent to a degree.

If a job requires a degree, but the degree does not necessarily need to be in the same area of focus as the job, the job is less likely to be considered a professional position. In this case, it is recommended that the employer also require a number of years of experience as a qualification for the position.

Petitions for New York employers should be sent to the USCIS office in Vermont. Once all the forms, supplementary documents, and fees have been submitted, it takes about three months for processing and review, but applicants can pay $1,000 for a petition to be reviewed in fifteen days. If an applicant pays the extra fee and USCIS takes more than fifteen days to review the petition, they will refund the extra fee. If USCIS needs any additional documents, they generally allow twelve weeks for the applicant to send them those documents.

Duration of H-1B Status and Extensions

Once the H-1B petition is approved, it is valid for up to three years, but can be renewed for another three years, up to a maximum of six years. The six year limit is not based on calendar or fiscal years, but on the actual time spent in the U.S. If, for example, the foreign citizen takes a two week vacation outside the U.S. in each of his or her six years of being in H-1B status, those twelve weeks can be tacked onto the end of the six year period. For example, if that employee starts working in H-1B status on October 1, 2013, rather than the H-1B status expiring on September 30, 2019, the H-1B status will expire twelve weeks later.

After those six years have expired, a person’s H-1B status can only be extended under limited circumstances. An H-1B may be extended for one year if the foreign citizen’s employer files an Alien Labor Certification for the person 365 days before his or her H-1B status expires. Additionally, H-1B status may be extended for three years if an I-140 petition is filed before the H-1B status expires, and no permanent residency visas (green cards) are available for I-140 petitions when the extension is filed.

Since the H-1B visa is based on work status, if a foreign citizen in H-1B status stops working, quits or is fired or laid off, he or she will have to leave the U.S. unless he or she is able to change to a different legal status.

Exceptions to the Cap

USCIS issues 65,000 new H-1B visas per fiscal year, with an additional 20,000 to professionals who have received a masters degree or higher from a U.S. university.

A foreign citizen in H-1B status who changes employers is not subject to the cap. The H-1B can be transferred over to the new employer. Once the new employer has filed an H-1B petition, and received confirmation that the petition was received, the foreign citizen can start working for the new employer as long as the person is in the U.S. legally, never worked in the U.S. without authorization, and the new employer has filed the H-1B petition in a timely manner. In this scenario, the foreign citizen keeps the original six year limit on his or her H-1B status, rather than starting a fresh new six year term with the new employer.

If a foreign citizen worked in the U.S. on in H-1B status, but left the U.S. before working the maximum six years allowed, that foreign citizen may choose to use the remaining years on his or her original H-1B to work for his or her new employer. For instance, if a foreign citizen worked in the U.S. for two years in H-1B status, moved back to his or her home country for a year, then was offered a new job in the U.S., that person could choose to use the four years remaining on his or her original H-1B visa, rather than reenter the pool for a new H-1B.

Petitions for foreign citizens to obtain H-1B visas to work at universities, non-profits associated with universities, non-profit research organizations, and government research organizations are not subject to the cap. However, if a person in H-1B status employed at one such institution changes jobs, and the new employer is not an organization exempt from the cap, the foreign citizen will have to enter the pool and become subject to the H-1B cap requirements.