H-1B VISA (PROFESSIONAL WORKERS)
The H nonimmigrant employment visa category reserved for a foreign professionals with a bachelor’s degree or equivalent work experience who have a job offer in the United States. The basic requirements must be met to take advantage of this visa category:
- The job must require a minimum of a bachelor’s degree (or its equivalent) in a specialized field.
- The candidate must possess this degree or the equivalent in training and experience.
Qualify as a U.S. Employer
- Must be a U.S. Company
- The employer must have a federal tax identification number. Foreign businesses not established in the United States cannot use this visa to bring employees here.
- Must make a Bona Fide Employment Offer
- Must pay transportation to return employee to home country upon termination.
The employee must prove that he or she is qualified for the specialty occupation and that the specific job offered by the employer requires at least a Bachelor’s degree.
- The employee must have a Bachelor’s degree or the equivalent in training and experience.
- Foreign degrees must be translated and evaluated by a third party educational evaluation service to ensure that they are equivalent to a U.S. degree.
- If the foreign degree is in an unrelated field, the candidate must present complete transcripts, a detailed resume describing previous employment history, and letters from previous employers confirming their work experience in the specialized field. The education and work experience will then need to be evaluated to determine if they are recognized as equivalent to a U.S. degree in the relevant field.
- Experience may qualify for a Bachelor’s degree. Generally the U.S. Citizenship and Immigration Services (USCIS) will recognize three years of full-time work experience in the field for every year of college missing from the specialized degree program. In other words, if the candidate has no college education, then he or she will need to possess a minimum of twelve years of full-time related work experience.
Workers in the United States who currently hold a valid nonimmigrant visa may apply in the United States for H-1B status. For example, if a worker is in lawful student status (an F-1 visa), he or she may seek a change from F-1 to H-1B. This change gives the person the ability to work in the United States for the sponsoring employer. However, if the worker needs to travel abroad, he or she will need to apply for an H-1B visa at a U.S. consulate. Workers not in lawful status in the United States or those residing abroad must apply for an H-1B visa at a U.S. consulate.
H-1B status is initially granted for three years with an extension for three additional years beyond the six years. Extensions may be available if an Immigrant Petition or Request for Permanent Residency (I-140 or I-485) has been filed on the employee’s behalf, and either the labor certification or I-140 has been pending for more than one year or if the individual has an approved I-140 but cannot file an adjustment of status application because his or her priority date is not current
An H-1B spouse and child are admitted as H-4, for the same length of stay and subject to the same limits as the principal H-1B.
A spouse or child of an H-1B employee is not eligible for employment in the U.S. and must qualify for an employment visa on its own. However, they may go to school and live in the U.S.
Processing of an H-1B
You may not apply for an H-1B visa until the quota opens on April 1st. of the calendar year when you wish to start working for the U.S. company. The petition involves several steps:
Step 1 Preparing and filing a Labor Condition Application (LCA) with the Department of Labor (DOL): the LCA contains four attestations by the employer regarding the H-1B employment, including that it will pay the H-1B worker the higher of (1) the prevailing wage for the H-1B position or (2) the “actual wage” paid to similar workers at the place of employment. The LCA is filed with the DOL.
Step 2 Preparing and filing the H-1B petition. The H-1B petition can be filed with USCIS once the LCA has been certified by the DOL. Processing times at USCIS for the H-1B petition vary from two to four months. Alternatively, immigration will give an answer in n 15 days with the payment of additional fee.
Step 3 Presenting yourself at the U.S. consulate abroad to obtain the visa stamp.
H-1B Visa Lottery and Selection System
The H-1B visa has a general annual cap of 65,000 for individuals for Bachelor’s degree and an additional 20,000 for individuals with a U.S. Master’s degree or beyond from an eligible institution.
For the past several years, USCIS has received more H-1B visa petitions than the annual quota (over 170,000 in 2015). Accordingly, they have established a computer-generated lottery system, which is implemented after April 7th of each years.
If an H-1B petition is selected in the lottery, USCIS will send a receipt. If the petition is not selected, USCIS will return the entire petition with the filing fee within 2-4 months from the filing of the petition.
An H-1B visa holder can only begin working in the U.S. on or after October 1st. of the year the visa is granted. You may not work prior to obtaining H status and the H-1B petition has been approved. Individuals who are outside the U.S. must apply for an H-1B visa at a U.S. consular post in order to enter the U.S. in H-1B status.
However, if you have a valid Employment Authorization Documents (EAD) issued by the USCIS due to a prior status or application, or a temporary work authorization based on student visa (F-1) optional practical training (OPT) you may start working upon the filing of the new employer’s petition. In order to qualify for this provision, the individual must have been lawfully admitted into the U.S., cannot have worked without authorization since last entry, and the petition must be filed before the expiration of the current authorized stay.
Extension of Visa H status
Extensions should be filed during the six-month period prior to expiration of current stay. Extensions are generally granted in two or three-year increments up to a maximum of six years (cumulative of all stay in H or L status for any employer).
An extension application filed prior to expiration of the current authorized stay automatically extends work authorization for up to 240 days while the application is pending. There may be restrictions on international travel, however, while the extension application is pending. If interested in filing for permanent residency, you must file at least one year prior to the expiration of your six year term. You should contact your employer’s HR department or our law firm approximately six months prior to the expiration of your current H-1B status to ensure sufficient time remains to process an extension.
Change of Employment or Job Sites
You may change employers and/or job sites. If the change in location is outside of your current geographical area (i.e., city or metropolitan statistical area), and/or you have a material change in job responsibilities, including a promotion, an amended H-1B petition may need to be filed on your behalf. Your manager should contact the HR department or our law firm to discuss potential job changes before they occur.
Visa Stamp for New Employer
You do not have to get a new visa stamp every time you change employers, and you may continue to travel with the H-1B visa stamp in your passport as long as the stamp has not expired and you show your current employer’s H-1B approval notice to demonstrate that you have authorization to work for the current employer.
Termination of Employment
If you are terminated by the company before the expiration of your visa, you must contact your HR department or our law firm about this issue. Generally, an individual in H-1B status whose employment is terminated must either leave the U.S., have a change of employer H-1B petition filed on his/her behalf, or, if qualified, file an application for change of status to another visa category. The USCIS informally recognizes a 30 day window in which to accomplish this, but the better practice is to file before the current employment ends.