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.
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