In general, most nonimmigrant visa classifications require that a person maintain a foreign residence abroad and show that he or she is coming to the U.S. temporarily. However, the law allows a person on an H-visa to have “dual intent,” which is arguably the most beneficial aspect of obtaining this visa.
Under the dual intent doctrine, a person may come to the U.S. temporarily and lawfully seek permanent residence in the United States at the same time. Therefore, the filing of an application for labor certification (also known as PERM) or an employment based preference petition will not result in the denial of an H-1B petition filed with the USCIS, or an application for an H-1B visa stamp at a U.S. consulate abroad pursuant to H-1B petition approval by the USCIS.
The H-1B visa allows nonimmigrants to be admitted for an initial period of up to three years. This period may be extended, but generally not beyond a total of six years. Dependent immediate family members (spouse and children under 21 years of age) may enter on an H-4 visa along with the principal beneficiary. This visa allows the holder to stay in the U.S., or go to school, but not work here.
For a specialty occupation H-1B petition, the employee must have a bachelor’s degree or the equivalent experience. The degree can be received from an institution in the USA, or in a foreign country. The degree must be from a real/accredited university or college.
The degree must be at least a four-year degree.
If the applicant does not have a degree or spends less than four years for the degree.
The general rule is that three years of experience can be substituted for one year of college. The specialized worker must have a sponsoring employer who must obtain a Labor Condition Application from the U.S. Department of Labor before filing the H-1B petition with the USCIS. The LCA establishes that the employer will pay at least the prevailing wage for the position.
1.) Hire us as your H-1B attorney: Sign a retainer agreement so that we can be your representative through the entire H-1B visa process.
2.) Ask your sponsoring employer to file the Labor Condition Application (LCA) with the U.S. Department of Labor verifying that the employer will pay the H-1B applicant the average market salary for the type of specialized work. We as your lawyers will provide written instructions to your employer.
3.) Once the LCA is approved, the Department of Labor will return a certified copy to the employer.
4.) The employer must post notices at two conspicuous places at their business of the H-1B position for 10 days or provide notice of the filing to the collective bargaining representative for their employees.
5.) On April 1st, we will file the H-1B visa petition with an USCIS service office along with the supporting documents: forms, fee receipts, document proofs, education and experience documents, license for the field of work, professional memberships, resume, etc.
6.) Wait for the petition to be processed by the USCIS. It usually takes two-to-five months time. If you pay an additional fee to USCIS, your application will be adjudicated within 15 days. This expedited service is called premium processing.
7.) USCIS mails the employer a receipt of the H-1B petition. There is a nine-digit reference number in this mail that can track processing time and general information about the petitioner and foreign worker. The employer should give notice to us upon receipt of this mail.
8.) Finally, USCIS approves the petition and mails an approval notice (Form I-797) to the petitioner.
9.) Depending on your status, you can adjust to H-1B status at the US consulate from your own country or you can adjust at a USCIS office here in the United States.
The USCIS provides an option for a 15-calendar day premium processing. There is an additional $1,225 filing fee paid to the USCIS for this method.
To request for premium processing service, the petitioner needs to complete and sign Form I-907. Attach a separate remittance of $1,225. This form may be filed together with petitioner’s I-129 with the USCIS or filed after I-129 is petitioned.
The H-1B quota is the allocation of H-1B visas that are available and that can be issued each fiscal year. (The H-1B quota is also commonly known as the H-1B cap.) The number of H-1B visas issued each year through the quota system is subject to a cap limit that is determined by the U.S. Congress. There have been discussions in the U.S. Congress regarding increasing the H-1B visa cap count.
At this moment, the cap for FY 2018 remains the same:
– Regular H-1B quota: 65,000.
– Masters H-1B quota: 20,000.
– 6,800 visas are carved out for Chilean and Singapore nationals.
Each H-1B quota applies to a particular financial year which begins on October 1 (when the U.S. government’s financial year starts).
USCIS begins to accept H-1B applications for the financial year from April 1st each year. It also starts to review these petitions and issue visas. Using past data and the data for the current year, USCIS will estimate a date when the quota will be used up. When the day comes, USCIS stops accepting applications. There are two dates set for the regular quota and the masters quota. This short filing period is what we called H-1B filing window. In recent years, the quota always runs out very quickly. Last year, USCIS received 124,000 petitions before it closed the pool. No petition was accepted after April 5th, and a lottery process was used to select the petitions to meet the H-1B cap on April 7th.
The H-1B quota is only for ‘first-time’ H-1B visa cap-subject applications and does not include or affect:
– H-1B extensions or renewals for current H-1B visa holders;
– H-1B transfers: for current H-1B holders transferring their visa to a new H-1B employer / sponsor;
– Cap-exempt positions: first-time H-1B visa applicant who obtains sponsorship employment with: nonprofit organizations, government research organizations, or institutions of higher education.
* H-1B Transfers and cap-exempt positions are NOT counted towards the regular annual quota allocation. They are Unlimited in number (there is no quota) and they can be filed at any time of year, all year round.
The H-1B is a nonimmigrant visa (temporary work visa) that allows the visa holder to work in the U.S. for a particular employer in a specialty occupation.
A specialty occupation is one that requires theoretical and practical application of highly specialized knowledge. Additionally, a specialty occupation is defined as one requiring a bachelor’s or higher degree in a specific area for entry into the occupation.
To qualify as a specialty occupation, the position being offered must meet one of the following criteria:
– A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the position;
– A particular degree requirement is common in the industry in parallel positions offered by similar organizations, or the offered position is so complex or unique that a degree is required;
– The petitioning company typically requires the degree or equivalent; or
– The nature of the specific duties for the offered position is so specialized and complex that the knowledge required to perform the duties is typically associated with the attainment of the required degree.
Yes. There are two ways to file the H-1B visa: under the “Regular Cap,” and under the “Master’s Cap.” There are 65,000 H-1B visas issued under the Regular Cap with an additional 20,000 H-1B visas issued under the U.S. Master’s Cap.
The Regular Cap is available to beneficiaries with a bachelor’s degree or the foreign equivalent. The Master’s Cap is reserved only for petitions in which the beneficiary has a U.S. master’s degree or higher. If you are applying under the Master’s Cap, you must have a master’s degree from a U.S. institution.
Once the Master’s Cap has reached 20,000 petitions, the remaining petitions are selected as part of the Regular Cap.
Are all H-1B visas subject to the Regular/Master’s Cap?
While the majority of new H-1B petitions are subject to either of the caps, there are certain petitions that are not subject to either cap. These petitions include:
– H-1B extensions/renewals ;
– H-1B amendments;
– H-1B transfers;
– Petitions where the employer is a college or university;
– Petitions where the employer is a nonprofit organization or entity related to/affiliated with a college or university; or
– Petitions where the employer is a nonprofit or government research organization.
Additionally, spouses and children of H-1B beneficiaries petitioning for H-4 status are not subject to either cap.
USCIS begins accepting H-1B applications for a fiscal year, starting date for employment for October 1, on or about April 1st. It also starts to review these petitions and issue visas. Using past data and the data for the current year, USCIS will estimate a date when the quota will be used up. When the day comes, USCIS stops accepting applications. There are two dates set for the regular quota and the master’s quota. This short filing period is what we called the H-1B filing window. In recent years, the quota always runs out very quickly.
Cap-Gap is available to beneficiaries who are requesting a change of status from either an F-1 (student visa) or J-1 (exchange visitor visa) status. F-1 and J-1 visas are typically offered for the “duration of status.” This means that an F-1 or J-1 visa holder may remain in status for the period required to pursue a full course of study plus any authorized practical training following completion. Typically, F-1 and J-1 visa holders are given a grace period in which they can file for a change of status. If the H-1B petition is timely filed, the beneficiary’s status and work authorization is automatically extended to October 1
Yes. A potential H-1B visa holder may not petition for themselves. They must have a job offer from a U.S. company. That company must then petition on behalf of the foreign worker.
Since the U.S. employer is the petitioner for the H-1B visa, the U.S. employer must provide the checks for the filing and other fees associated with the H-1B visa.
Petitioning companies must pay the H-1B beneficiary the prevailing wage in the industry. The prevailing wage is typically determined by the Department of Labor in a Labor Certification (LCA) based on the nature of the job, the industry, the required education, and the geographic location of the job. The prevailing wages are typically divided into four levels – Level 1 being an entry-level wage and Level 4 being a wage paid to employees with extensive experience in a given field.
There are several filing fees associated with the H-1B visa that must be paid by the petitioning company. The fees are as follows:
– I-129 filing fee: $460
– American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee:
– $750 (if the petitioner employs 25 or fewer employees); or
– $1,500 (if the petitioner employs more than 25 employees)
– Fraud Prevention and Detection Fee: $500
If the petitioning company has 50 or more employers in the U.S. and more than half of the employees are in the U.S. on an H-1B, L-1A, or L-1B visa, there is an additional fee of $4,000.
Additionally, the H-1B visa is eligible for premium processing, so if a petitioning company wishes to request premium processing, they must pay the premium processing fee of $1,440 as well.
It is important to note that USCIS has strict requirements when it comes to submitting checks for filing fees. Specifically, such checks must be:
– made out to “U.S. Department of Homeland Security”;
– dated within the last six months; and
– include the proper fee amount and a signature.
All petitions submitted with incorrect filing fees will be rejected.
The H-1B visa lasts three years and may be extended for an additional three years. H-1B status can exceed the six-year period if you have a green card application pending. In that situation, the H-1B can be extended on an annual basis if certain conditions are met.
Yes. The H-1B visa is considered a “dual intent” visa. Under the dual intent doctrine, a person may come to the U.S. temporarily and lawfully seek permanent residence in the United States at the same time. Therefore, the filing of an application for labor certification (also known as PERM) or an employment-based preference petition will not result in the denial of an H-1B petition filed with the USCIS, or an application for an H-1B visa stamp at a U.S. consulate abroad pursuant to H-1B petition approval by the USCIS.
Dependent immediate family members (spouse and children under 21 years of age) may enter on an H-4 visa along with the principal beneficiary. This visa allows the holder to stay in the U.S., or go to school, but not work here.
The processing time for the H-1B visa is around 6-8 months.
Yes, as stated above, the petitioner may include a request for premium processing with an H-1B petition, which guarantees that it will be adjudicated within 15 days of receiving the request for premium processing. The petitioner must also submit a filing fee of $1,440 with the request.
The legal start date for the H-1B petition is October 1st.
If a beneficiary has been working for the petitioning company on post-completion OPT, they are subject to the cap gap and may continue to work for the petitioning company, however, the start date of the H-1B employment must be identified on the petition as October 1st.
A qualifying company must be a U.S. employer. The company must have an IRS tax ID number. The company must also intend to enter an employer-employee relationship with the intended beneficiary. The company cannot hire the beneficiary as an independent contractor.
If an employer wants to sponsor an employee for their H-1B petition, they must file a Labor Condition Application (“LCA”) with the Department of Labor. The LCA contains information on where the beneficiary will be working, what the intended wage will be, and information on the proffered position. In response, the Department of Labor will issue a certification that must be submitted with the H-1B petition.
Additionally, petitioning companies must pay for the filing fees for the petition as well as transportation costs for the beneficiary to return to their native country if their employment is terminated by the employer. If the beneficiary terminated their employment with the employer, the employer is not responsible for the cost of return transportation.
Yes! Startup companies may sponsor beneficiaries on their H-1B visa if the position and beneficiary independently meet the requirements. Startup companies are generally treated the same as other petitioning companies, however, USCIS might raise a concern about a startup company’s ability to pay designated wages and the availability of work for the beneficiary. These concerns should not deter startup companies from seeking to employ foreign workers on their H-1B, as they are easy to overcome with the proper documentation.
The petitioning company must pay the beneficiary the wage stated on the petition within 30 days of the beneficiary’s entry into the U.S. or within 60 days of the beneficiary’s change of status. They must then continue to pay the beneficiary at least the wage stated throughout the duration of the beneficiary’s H-1B status. Additionally, the beneficiary must continue to serve as an employee of the petitioning company.
Typically, USCIS starts accepting H-1B visa petitions on or around April 1 and continues to accept petitions until the caps are reached. Then, USCIS issues receipt notices for the petitions that were selected in the lottery. If the petition is not selected in the lottery, USCIS issues a rejection notice and returns the full petition, including the checks for the fees.
However, starting in 2020, petitioners will have to pay $10 to register online with USCIS in advance. Under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that requires only basic information about their company and each requested worker. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.
We emphasize on clear communication and a personal approach. Our clients work directly with an attorney from the initial consultation through the resolution of the case. We are quick to respond to client needs, available to answer your questions and intent on keeping you informed of the status of your case.
Few areas of law impact the long-term future of individuals and businesses as much as immigration law. The attorneys at C.T. Lee & Associates understand this, which is why we carefully analyze every client’s needs before developing a strategy that is designed to achieve each client’s goals as effectively and cost-efficiently as possible. See below for our list of services within immigration.
BUSINESS AND EMPLOYMENT-BASED IMMIGRATION – L-1 VISAS – O-1 VISAS – H-1B VISAS – EB-1 EXTRAORDINARY ABILITY GREEN CARDS – EB-2 EXCEPTIONAL ABILITY GREEN CARDS – EB-3 SKILLED AND UNSKILLED GREEN CARDS – EB-5 INVESTOR/EMPLOYMENT CREATION VISA – E VISAS (TRADER, INVESTOR, SPECIALITY OCCUPATIONS) – FAMILY-BASED IMMIGRATION – GREEN CARDS – VISITORS AND STUDENTS – P-1 & P-4 VISAS – U VISA – SPECIAL IMMIGRANT JUVENILE STATUS