H-1B Visas

H-1B Visas

BACKGROUND

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H1B specialty occupations may include fields such as science, engineering and information technology.


COMMON QUESTIONS AND ANSWERS

How long does an H-1B visa last?

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

What is a Labor Condition Application (LCA)?

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

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

Is there a cap for H-1B visas?

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

What is H-1B premium processing?

How does USCIS calculate the 15 calendar days?

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

Will I have an advantage with premium processing if my petition falls within a category that has an annual limit?

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

Can the visa be extended beyond six years?

Is the H1B visa transferable?

What if I have more questions on 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. It is initially for three years but can be extended for additional three 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 an H-1B, the rules do allow for someone who owns their own company to petition for themselves so long as the petition is submitted through the company. (Click here for more information about H-1B start-up)

What is a Labor Condition Application (LCA)?

The LCA demonstrates the actual wage versus the prevailing wage, with the actual wage being the company’s compensation for all employees with similar experience and skill. Typically, the prevailing wage is a figure provided by the individual state’s employment agency which it thinks is an accurate reflection of what other employers are paying for that position in a specific area (for example, in California the salary is calculated county by county). The employer must agree to pay the higher of the two wages.

The employer must also officially declare that employing the foreign national beneficiary will not adversely affect the working conditions of other similarly employed workers.

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 congressionally mandated cap of 65,000 H-1B visas (commonly known as the “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. H1B 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?

Premium Processing Service provides expedited processing for certain employment-based petitions and applications. Specifically, the USCIS guarantees 15 calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee. If the fee is refunded, the relating case will continue to receive expedited processing. During the April 2017, H-1B season, the USCIS suspended the premium processing program until October 2017. Employers should be advised that it may do so again for the 2018 H-1B season.

How does USCIS calculate the 15 calendar days?

The 15-calendar day period will begin when USCIS receives the current version of Form I-907, Request for Premium Processing Service, at the correct filing address noted on the form. USCIS will issue an approval notice, a denial notice, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation within the 15-calendar day period. If the petition or application requires the submission of additional evidence or a response to a notice of intent to deny, a new 15 calendar day period will begin upon receipt by USCIS of a complete response to the request for evidence or notice of intent to deny.

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

Technically, no except in cases where the petition is eligible to be filed as a self-petition (i.e., the petitioner and the beneficiary are the same). Otherwise, only the petitioner, or 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 or representative, or beneficiary may pay the Premium Processing Service fee, but the beneficiary cannot sign or file the Form I-907.

Will I have an advantage with premium processing if my petition falls within a category that has an annual limit?

Individuals who pay for Premium Processing Service on petitions filed for nonimmigrant classifications that are subject to annual numerical (“cap”) limitations will not have unfair access to these limited immigration programs.

If necessary, USCIS will apply a random selection process to all petitions received on the date when a sufficient number of petitions have been received to reach the applicable numerical limit (“final receipt date”) for cap-subject H-1B, H-2B and H-3 petitions regardless of whether Premium Processing Service is requested. Petitions that are accepted through this random selection process are adjudicated to completion. Cases subject to the cap which were not selected in the random process and cases that were filed after the final receipt date are rejected and fees are returned. It is highly likely that the 2018 H-1B application process will be going to a lottery system again. Based on last year’s numbers, we estimate a 30% to 40% chance of getting selected for the lottery after submission.

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.

Can the visa be extended beyond six years?

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.

H1B workers can extend their visas if they are the beneficiaries of an approved Immigrant Worker Petition (I-140) and they cannot file a green card or permanent residency application because their priority date is not current. The Department of State publishes priority dates in its monthly Visa Bulletin.

If the worker’s priority date is not current, the employer can extend the visa for another three years. There is a substantial backlog in priority for particular categories so the employer can keep extending the H1B visa numerous times until the priority date becomes current.

The sponsoring employer should file a Labor Certification Application (LCA), or I-140, before the beginning of the sixth year of the worker being in H1B status. If the application is still pending by its expiration, you can extend the H1B status for another year.

Is the H1B visa transferable?

Regulations permit the H1B employee to begin working for the new employer upon the filing of the transfer H1B petition with the USCIS. H1B applicants who currently have a transfer petition pending with the USCIS can begin working for the new employer immediately. H1B visa employees can utilize this provision so long as he or she was in lawful status at the time of filing the H1B petition and provided that the employee has not engaged in any unauthorized employment since last entering the USA.

What if I have more questions on H-1B visas?

Please feel free to contact us for a free initial consultation. We would be happy to answer any questions regarding H-1B that you may have.


The information on this website is for general information purposes only. Nothing on this site should be taken as legal in vice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.