The H-1B Visa is designed for foreign nationals seeking to work temporarily in the United States in a “specialty occupation.” Thus, this visa is designed for “professionals” seeking to work in the U.S.
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.
- A “specialty occupation” is one which requires the theoretical and practical application of a body of highly specialized knowledge. Common professions that meet this requirement are architects, engineers, lawyers, physicians, accountants, teachers, many business occupations and many other professions.
- The foreign national must demonstrate that he/she posses the required degree in that particular occupation or closely related to that occupation, or its equivalent. If the foreign national does not posses a college/university degree, then work experience can be considered by certified agencies who perform work experience evaluations. Every 3 years of related work experience may qualify as 1 year of university under the regulations.
- In order to qualify for most employers the applicant must also be selected in the H-1B lottery system. Currently, there is a cap of 85,000 H-1B Cap Subject Visas per year with 20,000 of those set aside for applicants with US advanced degrees. Over the last several years well over double the number of applicants for the number of slots available have applied so USCIS has implemented a lottery system for selection of eligible petitions. For Fiscal Year 2021 (filing in 2020) the lottery system has changed substantially as noted below.
HOW DO I APPLY FOR AN H1B VISA UNDER THE NEW REGULATICONS EFFECTIVE JANUARY 9, 2020?
On January 9, 2020, USCIS fundamentally changed the lottery system that had been in place for well over a decade. Instead of an initial filing of a complete Petition during the first week of April, 2020, the new system provides for an initial registration system beginning on March 1, 2020 and lasting through March 20, 2020. During this 20-day period, an employer must submit preliminary registration for each foreign worker for whom they seek to file an H-1B cap subject petition and pay a $10.00 H-1B registration fee for each submission. The preliminary registration will require mostly basic information about the employer, the candidate as well as the specialty position. USCIS has indicated that selected applicants will be notified by March 31, 2020 so that they may proceed to file an H-1B cap-subject petition for the listed foreign national at that time. If selected in the lottery the following steps would then be completed:
- With the assistance of immigration counsel, the U.S. employer will file form ETA 9035, Labor Condition Attestation (“LCA”) with the U.S. Department of Labor
- Once the LCA is approved, the U.S. employer must then file form I-129 and H Supplement with USCIS
WHAT ARE THE BENEFITS OF AN H1B VISA?
- H1B visas are valid for an initial period of 3 years, and can be renewed for an additional 3 years, with a maximum of 6 years, unless the employer and employee have taken specific steps towards U.S. permanent residency that can allow for extensions beyond the 6 year limit
- The spouse and children under 21 can accompany the H1B holder and may study in the U.S.
- 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
- 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
CONTACT AN EXPERIENCED H-1B VISA LAWYER FOR A CONSULTATION TODAY
The H-1B season in 2020 (filing for FY 2021) will move faster than ever before with submission needed to be made in March. However, initial submission also is far more streamlined and may well allow more employers to submit more potential H-1B employees into the lottery. Accordingly, it is recommended that you move as quickly as possible to speak with H-1B counsel to determine how to best proceed. Our H-1B attorneys serve employers all over the country with their employment related needs. If you would like to speak with one of our attorneys please contact us at 407-478-1111 (Orlando), 813-444-1114 (Tampa) or 305-455-0590 (Miami).