WHAT IS AN H-1B VISA?

An H-1B visa is a non-immigrant visa category for “professionals” seeking to work temporarily in the United States in a “specialty occupation.”  The Immigration and Nationality Act also provides that fashion models of “distinguished merit and ability” may apply for H-1Bs.

WHAT IS A SPECIALTY OCCUPATION?

  • A “specialty occupation” is one which requires the theoretical and practical application of a body of highly specialized knowledge.
  • The specialty occupation must require a least a bachelor’s degree or it’s equivalent.
  • Typical professions that meet this requirement are architects, engineers, lawyers, physicians, accountants, teachers, many business occupations, and many other jobs.

ANNUAL NUMERICAL LIMITS

USCIS may approve 65,000 H-1B visas each year.  An additional 20,000 visas may be issued to applicants with master’s degrees.

WHEN TO APPLY FOR AN H-1B VISA

The immigration fiscal year starts on October 1st.  Employers cannot file applications for new H-1Bs more than 180 days before the employee’s ‘start date,’ which is always October 1st.  Thus, typically, April 1st is the earliest that an employer may file a new H-1B application.  Since 2013 (FY 2014), the U.S. Citizenship and Immigration Service has received more than 85,000 H-1B petitions in the first week of April.  Due to this USCIS has implemented a ‘lottery’ system in which it randomly selects 85,000 applications out of all of the applications received during the first week of April.

HOW TO QUALIFY FOR THE H-1B VISA

  • The U.S. employer must establish a need for someone in a “specialty occupation,” and if the employer wishes to hire the foreign national, the U.S. employer must be willing to sponsor the foreign national through the H1B process.
  • The foreign national must demonstrate that s/he possesses the required degree in that particular occupation, a closely related occupation, or its equivalent.
  • The foreign national must have a bachelor’s degree or its equivalent.  If the foreign national does not possess a college/university degree, then work experience may be considered in place of a degree.  A certified agency can perform a work experience evaluation to determine if an employee’s work history is adequate.  Every three years of related work experience may qualify as one year of university under the regulations (8 CFR §214.12(h)).

HOW DO I APPLY FOR AN H1B VISA?

  • With the assistance of immigration counsel, the U.S. employer must first file form ETA 9035, Labor Condition Attestation (“LCA”) with the U.S. Department of Labor.  The LCA is filed to establish the prevailing wage for the position, but also includes a series of attestations that the employer must make.  These attestations include promising to pay the foreign national employee the prevailing wage and guaranteeing certain working conditions.
  • Once the LCA is approved, the U.S. employer must then file Form I-129 and Supplement H with the U.S. Citizenship and Immigration Service.

HOW LONG IS AN H-1B VALID?

Currently, H-1B visas are approved for a maximum of three years, after which employers can apply for a three-year extension.  This gives the employee a total of six years on an H-1B.  Once the foreign national reaches six years in H-1B status, they must reside outside of the US for a year before another H-1B can be approved on their behalf.

Any time spent outside of the United States, while in H1-B status, can be ‘recaptured’ and added onto the end of an H-1B stay.

Additionally, an H-1B may be extended beyond six years under the following circumstances:

  • Your application for a labor certification has been pending more than 365 days (meaning it was filed before the end of your 5th year in H-1B status); OR
  • You have an approved I-140 but are waiting for your priority date to become current.

CHANGE OF EMPLOYER OR CHANGE OF POSITION

An H-1B employee must work for the petitioning U.S. employer and may only perform the job duties outlined in the petition. If the employee wishes to change employers or change positions within the company, a new Form I-129 must be filed.

  • Employees may work for more than one employer, but each employer needs to have an approved Form I-129 for that employee.
  • Mergers and acquisitions do not per se necessitate the filing of a new Form I-129; however, if the job duties or location change, then an amended form should be filed.

THE H-1B EMPLOYEE-EMPLOYER RELATIONSHIP

So long as the employee/employer relationship is maintained, the employee will remain in status.  This means that H-1B employees may go on vacation, maternity leave, paternity leave, and take sick leave.  H-1 B employees may also participate in employee strikes.

TRAVELING IN H-1B STATUS

H-1B visa holders may travel abroad as much as they’d like so long as their I-129 is valid, and they have a valid visa stamp.  Visa stamps may be obtained by a U.S. consulate abroad.

WHAT ARE THE BENEFITS OF AN H1B VISA?

  • A primary benefit of an H-1B visa is that it is a dual intent visa, which means that you can have an application for a green card pending and it will not affect your ability to travel abroad or file an extension of your H-1B visa.
  • The employer may proceed with filing for US permanent residency for the H1B holder, first by following the procedures for Labor Certification through the PERM process, then through the I-140 procedures.
  • The spouse and unmarried children under 21 can accompany the H1B holder to the United States and may study in the U.S.  Additionally, certain spouses of H-1B holders, who are applying for lawful permanent residency, may apply for work authorization.
  • Once you obtain H1B visa status, you are no longer subject to the annual cap or limits on the number of H1Bs available every year, so you may switch employers and not be subject to this numerical limitation.