H-1B Visas: Helping Companies Employ Specialized Employees
The H-1B program allows companies in the United States to hire skilled foreign workers for specialty occupations. However, securing these visas requires a great deal of paperwork and legal knowledge. You need an immigration law team like the one at Fok Immigration Law to assist you.
With more than 25 collective years of practice, the team is well-versed in securing approvals for H-1B employees and employers all across the U.S. We offer a flat-fee structure, ensuring you can reach out to us without worrying about per-minute charges.
Please contact our immigration team for a free consultation about H-1B visas.
Immigration Attorneys Whose Experience You Can Trust
In such an important matter, you want to have attorneys on whom you can rely. Our H-1B visa lawyers are well-versed in H-1B visa processes. Their knowledge is backed by years of experience. They have handled hundreds of H-1B visas. Hiring an attorney for your H-1B needs is important if you want your petition to go as quickly and smoothly as possible. When you need a team that can serve as your “in-house counsel,” we are here.
Demystifying Form I-129 For H-1B Applicants
Form I-129 is a key component of the H-1B visa application. It is the petition for a nonimmigrant worker, filed by their employer. This form is essential for obtaining approval from U.S. Citizenship and Immigration Services. Our attorneys can help ensure that this form is completed accurately and efficiently, reducing delays in your visa process.
Your H-1B Visa Questions, Answered
Find clarity and confidence as you navigate the H-1B visa process with our detailed answers to your most pressing questions.
How long does an H1-B visa last?
Most H1-B visa holders can remain in the United States for a maximum of six years. Originally, your visa is valid for three years. Extending it another three years is possible.
Do I (as the employee) file, or does my employer file?
The employer files for the H-1B visa. They also take several steps, including submitting a Labor Condition Application (LCA) to the Department of Labor (Form ETA 9035). Although the employer files the H-1B petition, someone who owns their own company can petition for themselves as long as they submit the petition through the company. We can provide even more information about the H-1B processes for startups.
What is a Labor Condition Application (LCA)?
A Labor Condition Application (LCA) is a fundamental part of the H-1B visa application process. It serves as a protective measure for both U.S. and foreign workers. The LCA, filed with the Department of Labor (DOL), outlines the wage to be paid to the foreign worker. This must be at or above the prevailing wage for the job in the area of employment. The prevailing wage refers to the wage rate that is typically paid to the majority of workers in a specific occupation and area. This ensures fair pay and conditions for U.S. and foreign workers.
The LCA also declares that employing the foreign worker will not adversely affect the working conditions of similarly employed individuals in the U.S., and that there is no current strike or lockout in the same occupational classification at the workplace. The DOL must approve the LCA before anyone can file an H-1B petition. To make sure that you comply with all regulations related to the LCA, please consult an immigration law attorney.
Are there any penalties if the employer doesn’t comply with H-1B laws?
There are potential civil penalties, and the government could also potentially revoke the company’s permission to request and sponsor future H-1B workers. The most reliable way to avoid these consequences is to work with an experienced immigration lawyer who can ensure compliance.
Who pays the fees for an H-1B visa?
The employer must pay all fees associated with filing the H-1B visa application. The optional premium processing fee may be paid by the employer or employee, depending on the need for premium processing.
Is there a cap for H-1B visas?
Yes. Each fiscal year, up to 85,000 new H‑1B numbers are available via the lottery: 65,000 in the regular cap plus 20,000 for candidates with U.S. master’s or higher degrees. However, petitions filed by institutions of higher education, related/affiliated nonprofits, and nonprofit or governmental research organizations do not count toward the cap, meaning they can apply without going through the H-1B lottery process.
What is H-1B premium processing?
H-1B premium processing is a service offered by U.S. Citizenship and Immigration Services (USCIS). It allows employers to expedite the processing of their H-1B petitions. For an additional fee, USCIS guarantees a response within 15 days of receiving the application. This service benefits employers who need a quicker decision on their petition. However, it does not increase the likelihood of the petition being approved.
Can the beneficiary of a visa petition seek premium processing service?
As a rule, beneficiaries cannot request premium processing, except in self‑petition cases where the petitioner and beneficiary are the same individual. For all other filings, only the petitioner or a duly authorized attorney/representative with a Form G‑28 on file may submit the premium processing request. While the premium processing fee may be paid by the petitioner, attorney, representative or beneficiary, the beneficiary cannot independently sign or file Form I‑907.
If my employer got an H-1B visa for me and I want to quit my job, can I still keep my visa?
Unfortunately, if you leave your H-1B visa job, you will be out of status. To maintain your H-1B status, you will need to transfer it to another employer who is willing to take over the H-1B.
Is the H-1B visa transferable?
Regulations permit the H-1B employee to begin working for the new employer upon the filing of an H-1B transfer petition with the USCIS. H-1B applicants who currently have a transfer petition pending with the USCIS can begin working for the new employer immediately, so long as he or she was in lawful status at the time of filing the H-1B petition and provided that the employee has not engaged in any unauthorized employment since last entering the USA. If you want to change your job but keep your visa, our employment immigration lawyers can help you.
Is It Possible To Extend The H-1B Visa Beyond The Six-Year Limit?
Yes, in some cases, a foreign worker can lawfully extend their stay past the six-year mark.They are as follows:
- The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) allows workers to extend their H-1B status past the six years if at least 365 days have elapsed (or will have elapsed) by the requested H-1B start date since either a PERM labor certification or an employment-based immigrant petition (typically an I-140, Immigrant Petition for Alien Workers) was filed on their behalf. The government may grant H-1B approvals up to one year at a time based on this provision until the PERM labor certification expires or the government makes a final decision to deny or revoke the PERM labor certification, deny or revoke the immigrant petition, or deny or approve the adjustment of status.
- AC21 also has another provision that allows H-1B workers who are beneficiaries of an approved I-140 petition and who are eligible to be granted permanent residence (but for application of the green card per-country limitations) to extend H-1B status beyond the six years. This provision especially benefits Indian and Chinese nationals who experience significant green card backlogs in the EB-2 and EB-3 preference categories. This provision is the primary means for them to extend their H-1B status well beyond six years while they wait for a green card. Those eligible under this provision may extend their H-1B status in increments of up to three years at a time for as long as the visa unavailability persists for their green card process.
- The 21st Century DOJ Appropriations Authorization Act permits H-1B workers who filed labor certifications prior to the end of their fifth year and who have had their labor certification pending for more than 365 days to extend H-1B status in one-year increments without regard to whether they filed an I-140 petition.
- USCIS may issue an initial H‑1B approval for up to three years, with the option to renew for another three years. In certain situations, employment can continue beyond the six‑year cap. To avoid a gap in work authorization, the employer must file an extension before the current H‑1B petition expires. When a timely Form I‑129 is filed to extend status, the employee may keep working for the same employer for up to 240 days while USCIS reviews the case, or until a decision is made, whichever comes first.
The conditions for these exceptions are immensely complicated. If you want to extend your visa or that of your employee, you will need the advice of an employment immigration attorney. Our attorneys can look at your situation and determine whether you qualify for any of the available exceptions.
Contact Fok Immigration Law With Your Additional Questions
Are you ready to get an H-1B visa? Please call us at 650-546-7020 or 408-212-7014 to schedule a free initial case evaluation with a H-1B visa lawyer in San Jose or San Mateo. You may also send us an email.