H-1B Visa: Professionals

Overview

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.

Employer Requirements

• The U.S. company must be in existence and offer a bona-fide position in a specialty occupation, and it must be able to pay the offered salary.

Employee Requirements

• The employee must have a Bachelor’s degree or the equivalent in training and experience.
• Most 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.
• 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.

H-1B status is initially granted for three years. This may be extended for an additional three years, including all time spent in either H or L status for any employer in the U.S.  Extensions past six years 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 was filed more than one year ago 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

TIMING ISSUES:  The H-1B status is initially granted for three years. This may be extended for an additional three years, including all time spent in either H or L status for any employer in the U.S.  However, the employee may also pursue permanent residence at the same time.

Extensions past six years 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 was filed more than one year ago 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.

FAMILY:  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.

START DATE.  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) practical training 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 (as set forth on the I-94 card).

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 showing your current employer's H-1B approval notice to demonstrate to the Immigration officer 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.

LIST OF DOCUMENTS

Documents from the U.S. Company

• Incorporation documents.
• FEIN number or confirmation letter (or application, if available)
• Occupational License.
• Website, magazine articles, marketing material.
• Corporate letterhead.
• Taxes for the past year.

Documents from Employee

• Full copy of passport for yourself and all non-U.S. dependents (all pages, including blanks).
• Copies of all Degrees, Diplomas, Certificates, and Transcripts (translations required for documents not in English).
• U.S. education equivalency evaluation (if any) (if you do not have evaluation, we will provide you with the information to have your evaluation completed).
• Detailed resume, including educational credentials and work history (by month and year), and detailed duties evidencing executive or managerial position (if applicable).
• Birth certificates for yourself and all non-U.S. dependents (long form, naming both parents).
• Marriage certificate.
• If you are physically present in the U.S. you must provide for yourself and all non-U.S. dependents:
  •  I-94 card.
  • Visa.
  • Social security card, U.S. driver’s license

 NOTE: All documents must be translated into English.

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