H-1B Visas: Helping Companies Employ Specialized Employees

The H-1B program allows companies in the United States to temporarily employ foreign workers in professional occupations that require the theoretical and practical application of a body of specialized knowledge. A bachelor’s degree or higher in the specific specialty, or its equivalent through specialized work experience, is typically required. At Fok Immigration Law, our attorneys are well experienced in H-1B Visa applications and are ready to provide the guidance you need.

Common Questions And Answers About H-1B Visas

How long does an H1B visa last?

A worker with a H1B visa can remain in the US for up to six years. Originally your visa is valid for three years. Extending it another three years is possible for six years.

Do I (as the employee) file or does my employer file?

The employer files for the H1B visa and must take several steps including submitting a Labor Condition Application (LCA) to the Department of Labor (Form ETA 9035). While the employer is required to file the H-1B petition, the rules allow for someone who owns their own company to petition for themselves as long as the petition is submitted through the company. (Click here for more information about H-1B processes for start-ups.)

What is a Labor Condition Application (LCA)?

A Labor Condition Application (LCA) is a fundamental part of the H-1B visa application process, serving 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, which 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. Moreover, the LCA also declares that employing the foreign worker will not adversely affect 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 LCA must be approved before an H-1B petition can be filed with U.S. Citizenship and Immigration Services (USCIS).

Are there any potential penalties if the employer does not remain in compliance with the law governing H1B employees?

There are potential civil penalties and the possibility that the Government could revoke the company’s permission to request and sponsor future H1B workers.

Who pays the fees associated with filing an H-1B visa?

The employer pays the fees associated with an H-1B visa.

Is there a cap for H-1B visas?

There is a mandating cap of 65,000 for H-1B visas (“regular cap”).

Are there any exceptions to the H-1B cap of 65,000?

There is an exemption from the H-1B cap. For beneficiaries who have earned a U.S. Master’s degree or higher (commonly known as the “advanced degree exemption”). However, it has its own separate cap of 20,000. H-1B applicants who will be employed at nonprofit research, university, or government institutions will not be counted toward the cap.

What is H-1B premium processing?

H-1B Premium Processing is a service offered by U.S. Citizenship and Immigration Services (USCIS) which 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 is beneficial for employers who need a quicker decision on their petition, but it does not increase the likelihood of the petition being approved.

Can the beneficiary of a visa petition seek Premium Processing Service?

Technically, no, except in cases where the case is eligible for filing as a self-petition (i.e., the petitioner and the beneficiary are the same). Otherwise, only the petitioner, the attorney, or representative who has filed a notice of appearance (Form G-28) on behalf of the petitioner may request Premium Processing Service for a designated petition. The petitioner, attorney, representative, or beneficiary may pay the Premium Processing Service fee, but the beneficiary cannot sign or file the Form I-907 to request Premium Processing independently.

If my employer successfully files for an H1B visa for me and I want to quit my job – am I free to do so?

Unfortunately, if you leave your H1B 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 H1B visa transferable?

Regulations permit the H-1B employee to begin working for the new employer upon the filing of a 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 engaging in any unauthorized employment since last entering the USA.

Is it possible to extend the H-1B visa beyond the six year limit?

There are exceptions whereby the foreign worker can extend his/her stay beyond the six years under the American Competitiveness in the Twenty-First Century Act, or AC21.

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. H-1B approvals may be granted up to one year at a time based on this provision until the PERM labor certification expires or a final decision is made 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 can approve H-1B petitions for an initial period of up to three years and can grant extensions for up to an additional three years. Under certain circumstances, USCIS may extend an H-1B worker’s employment authorization beyond the six-year limit. For an H-1B worker to continue working beyond the expiration of their current H-1B status, the employer must request an extension of stay before their H-1B petition expires. If the employer timely files a Form I-129 to extend their status, the worker is authorized to continue working for up to 240 days while USCIS processes the petition, or until USCIS makes a decision on the petition, whichever comes first.

Contact Fok Immigration Law With Your Additional Questions

If you are looking to secure a visa, our California immigration lawyers are prepared to help. Call us at 408-606-8911 to schedule a free initial case evaluation. You may also choose to contact us online.