The H-1B visa category is a nonimmigrant visa classification that allows U.S. employers to hire temporary workers in a specialty occupation. This category also applies to a fashion model of distinguished merit or ability and workers with exceptional merit and ability relating to a Department of Defense research and development project. See INA § 101(a)(15)(H).
An H-1B petition is based on a professional job offer from a U.S. employer. The employers are the petitioners who submit the H-1B petition for a foreign prospective employee beneficiary. If the employee is already in the U.S., the employee may change his or her status within the U.S. However, if the employee is outside the U.S., the employee must apply for the H-1B visa at a foreign U.S. consulate.
Generally, an H-1B petition must be accompanied by a certified Labor Condition Application (LCA), and it must show that the position is in a specialty occupation. The petitioner must also show that it is a valid U.S. employer, has extended a genuine job offer to the beneficiary, has the ability to pay the offered salary to the beneficiary, and has a valid employer-employee relationship with the beneficiary.
Generally, an H-1B beneficiary may be admitted for a maximum of 6 years. An H-1B may be granted for a maximum initial period of 3 years, which may subsequently be extended for an additional 3 years. After 6 years, the beneficiary must remain outside the U.S. for one year before applying for an H-1B again. However, extensions beyond 6 years may be possible in certain situations.
H-1B is a “dual intent” visa category, which allows an H-1B holder to legally possess immigration intent. Therefore, a foreign national with a pending green card application may request an H-1B change of status or extension, unlike most other nonimmigrant visa holders.
Immediate family members of H-1B beneficiaries may apply for an H-4. H-4 dependents cannot work in the U.S., but they may attend schools in the U.S.
I. H-1B CAP, LOTTERY, AND CAP EXEMPTIONS
II. QUALIFYING SPECIALTY OCCUPATIONS
III. PREVAILING WAGE DETERMINATION & LABOR CONDITION APPLICATION (LCA)
IV. QUALIFYING PETITIONERS
V. ESTABLISHING A VALID EMPLOYER-EMPLOYEE RELATIONSHIP
VI. OPT CAP-GAP EXTENSION
VII. H-1B PORTABILITY RULE
VIII. EXTENSIONS OF STAY
IX. H-1B DOCUMENTS AND PROCEDURE
X. WHAT CAN YOU EXPECT FROM VISATOPIA?
I. H-1B CAP, LOTTERY, AND CAP EXEMPTIONS
Currently, the U.S. has an annual cap of 65,000 for the regular H-1B category. Of the 65,000 regular cap, 6,800 are reserved for Chilean and Singaporean nationals. Additionally, there is an extra 20,000 quota reserved for US advanced degree holders. An advanced degree holder must have received at least a Master’s degree from a qualified US higher education institute.
The H-1B fiscal year starts on October 1st and ends on September 30th every year. Accordingly, the earliest date that an initial H-1B cap position can start is October 1st. However, the USCIS starts accepting H-1B petitions on April 1st of the same year. If the USCIS receives more than 65,000 + 20,000 petitions during the first 5 week days, then the USCIS conducts a computer generated lottery to randomly select a sufficient number of petitions needed to meet the cap. The lottery is first conducted for the 20,000 advanced degree holders. Then, the remaining petitions are pooled together for the general lottery. If the petition is not randomly selected, the USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.
Some H-1B petitions are cap exempt, which means that the employers can file H-1B petitions during any time of the year without being subject to the annual cap. The H-1B cap does not apply to beneficiaries who are employed or have received offers of employment at institutions of higher education or related/affiliated nonprofit entities, or nonprofit or governmental research organizations. An affiliated or related nonprofit entity is defined as one that is associated with or attached to an institution of higher education through shared ownership or control by the same board or capacity as a member, branch, or subsidiary. A nonprofit research organization or governmental research organization is defined as one that is primarily engaged in general research to gain more comprehensive knowledge or applied research.
The petitioner need not be a qualifying institution itself, but in such cases, the petitioner must demonstrate that the beneficiary will conduct a majority of his or her work at a qualifying institution that is necessary to furthering the essential purposes, mission, objectives, or functions of a qualifying institution. A common example is a petitioning company that has a contract with a qualifying institution that requires the beneficiary to work on-site at the institution for more than half of the beneficiary’s time.
Additionally, if a person had been previously counted in the H-1B cap within the past 6 years, that person is not subject to the cap.
II. QUALIFYING SPECIALTY OCCUPATIONS
When petitioning for a beneficiary’s H-1B status, the petitioner must show that the prospective position is in a “specialty occupation” in the U.S. on a full-time or part-time basis, and that the beneficiary meets the requirements for the job.
The petitioner must demonstrate that the beneficiary will in fact be employed in a qualifying specialty occupation. The beneficiary must qualify for the specialty occupation, must not be employed in a lesser capacity, and must not intend to seek other employment immediately upon arrival. A “specialty occupation” is defined as an occupation that requires practical and theoretical application of highly specialized knowledge and requires at least a bachelor’s degree or higher in the specific specialty as a minimum for entry into the occupation. Typically, this includes occupations in fields such as architecture, mathematics, medicine, business, engineering, accounting, law, education, art, and theology.
A “specialty occupation” must meet at least one of the following criteria: (1) a baccalaureate degree, a higher degree, or its equivalent; (2) the degree requirement is typical to the industry and the position or its equivalents, or the position is so complex or unique that a degree is required; (3) the degree requirement or its equivalent is typical to the employer and the position; or (4) the specific duties and responsibilities are so specialized and complicated that performance of such duties is usually associated with having a baccalaureate or higher degree.
The beneficiary may qualify for such specialty occupations through education, experience, or a combination of both. Three years of professional experience can usually substitute one year of college-level education. The primary factor considered is whether the quality of the proposed experience rises to a professional level. Evidence of the experience and its quality can be submitted through letters from past employers.
For foreign degree holders, the petitioner must show that the degree is equivalent to a U.S. bachelor’s or higher degree in the specialty occupation through an education equivalency evaluation, and should submit transcripts, certificates, other school records, or a statement from an authoritative source that demonstrates that the beneficiary has a college-level education.
Specialized training may qualify as professional experience and may include apprenticeship programs, employer-sponsored training courses, vocational training schools, or other commercial training facilities.
Membership in a professional association is generally insufficient to show experience, unless membership requires professional credentials in the profession.
If the state where the beneficiary will work requires a professional license to conduct activities related to employment, the beneficiary must have the license by the time the petition is filed. Evidence of such a license requires a certified copy of the license or registration. Temporary licenses requiring supervision of a licensed professional may be sufficient on a case-by-case basis. In such cases, the beneficiary must demonstrate that he or she is working in a professional capacity.
If one of the requirements to receive a license is to have valid status or approval of the H-1B petition and that reason is the only reason why the beneficiary cannot obtain the license, the beneficiary may be granted a temporary one-year H-1B approval and the beneficiary must have the license by the time the subsequent extension is filed.
A beneficiary who is a physician involved in direct patient care generally cannot be admitted to the U.S. under H-1B status unless the beneficiary enters to teach at or conduct research for a public or nonprofit private educational or research institution in the U.S. In such cases, the petitioner must submit an approved Labor Condition Application, a license or its equivalent to practice medicine for the state of intended employment, a full and unrestricted license or its equivalent to practice medicine abroad or a degree from a U.S. or foreign medical school, evidence of passing the Federal Licensing Examination or its equivalent if the beneficiary received his or her medical education abroad, and evidence of passing the Education Commission of Foreign Medical Graduates English test unless the beneficiary received his or her medical education in the U.S. or Canada.
III. PREVAILING WAGE DETERMINATION & LABOR CONDITION APPLICATION (LCA)
Before petitioning for a beneficiary’s H-1B, the employer must first obtain a certification of a Labor Condition Application (LCA) from the Department of Labor (DOL). An LCA will not be approved without verification of the employer’s Federal Employer Identification Number (FEIN).
In the LCA, the employer certifies that (1) the beneficiary will be paid at least the prevailing wage for the occupation in the geographic area at the time of filing LCA or the same wage as others who are similarly employed; (2) the beneficiary will work in conditions that have no adverse effect on others who are similarly employed; (3) no strike or lockout is in progress; and (4) no U.S. worker displacement has resulted or will result from the beneficiary’s employment if the employer is an H-1B dependent employer.
The salary or wage must meet or exceed the prevailing wage in the area of employment. Wage determinations are based on many factors, including geographic location, job title, discipline, job duties, and required education.
Dates of intended employment must fall within the dates of the LCA. The petitioner may file more than one petition at different times under the same LCA until positions covered by that certification are filled. Unnamed beneficiaries may be listed on the LCA, but the petitioner must reference all previously approved petitions under the same LCA with each H-1B petition.
If the beneficiary is going to perform the same duties at different locations for the same employer and all places of employment are within the same DOL regional office’s jurisdiction, only a single LCA is required.
The beneficiary may work for multiple employers if each employer files its own petition with its own LCA.
IV. QUALIFYING PETITIONERS
The petitioner must be a valid U.S. employer, which is defined as a person, firm, corporation, contactor, or other association or organization in the U.S. that engages a person to work in the U.S., has an IRS tax identification number, and has a valid employer-employee relationship.
The petitioner must demonstrate that the beneficiary will in fact be employed in a qualifying specialty occupation. The beneficiary must not be employed in a lesser capacity and must not intend to seek other employment immediately upon arrival. The petitioner should clarify the beneficiary’s education and work experience, the nature of the petitioner’s business, industry practices, salary of the beneficiary, and typical salary in the industry.
Although comprehensive financial data is not necessary, such documentation should establish that the petitioner fully intends to and has the ability to pay the salary or wage purported in the petition. The petitioner’s and beneficiary’s immigration history, the nature of the business, and the relationship between the petitioner and the beneficiary may be examined to determine whether a valid job offer was made without ulterior motives. Small businesses should take particular interest in demonstrating their financial ability to pay the beneficiary the salary listed in the petition.
If the employing company changes through a merger, acquisition, or other restructuring, then the newly structured company may become a successor in interest if it operates a similar type of business and it substantially assumes and accepts all the liabilities, obligations, interests, assets, and benefits of the original employing company. If the new company becomes a successor of interest, the beneficiary’s H-1B status remains unchanged.
V. ESTABLISHING A VALID EMPLOYER-EMPLOYEE RELATIONSHIP
As mentioned, the petitioner must demonstrate that a valid employer-employee relationship exists. To establish a valid relationship, the petitioner must show that it has the right to direct and control the beneficiary’s employment—what, when, where, and how the beneficiary performs his or her duties.
Evidence of the following factors may contribute to a determination that a valid relationship exists:
The petitioner supervises the beneficiary on-site.
If the petitioner supervises the beneficiary off-site, the petitioner maintains supervision through weekly check-ins or calls, routine reports to the main office, off-site visits, or other similar activities.
The petitioner has the right to control the beneficiary’s work as required on a day-to-day basis.
The petitioner provides the tools needed for the beneficiary to perform his or her duties.
The petitioner hires, pays, and may fire the beneficiary.
The petitioner evaluates the beneficiary’s work-product through performance reviews or other similar activities.
The petitioner claims the beneficiary for tax purposes.
The petitioner provides employee benefits to the beneficiary.
The beneficiary uses the petitioner’s brand to perform his or her duties.
The beneficiary produces a final product that is directly related to the petitioner’s business.
The petitioner may control how the beneficiary conducts or accomplishes his or her work product.
When employment is through a recruiting firm or a computer consulting company that contracts with several companies to supply employees that fulfill specific needs on an as-needed basis, a valid relationship typically does not exist unless the evidence strongly demonstrates that the petitioner controls how the beneficiary will complete daily tasks, the beneficiary uses the petitioner’s brand information to complete assignments, the petitioner conducts progress reviews, and/or the beneficiary’s end product is related to the petitioner’s line of business.
Documentation of the employer-employee relationship may include:
An itinerary of services or engagements.
An employment agreement with terms and conditions.
An employment offer letter that describes the nature of the employment relationship and the beneficiary’s duties and responsibilities.
Any contracts between the petitioner and clients describing the capacity with which the petitioner’s employees conduct work.
Any statements of work, work orders, letters, or service agreements describing the capacity with which the petitioner’s employees conducted or will conduct work.
Performance reviews and descriptions of how such reviews are conducted.
An organizational chart showing the relationship and supervisory roles of the petitioner and beneficiary.
Any other documentation describing the position, the skills required for the position, or any of the other above-mentioned factors for establishing an employer-employee relationship.
VI. OPT CAP-GAP EXTENSION
H-1B petitions may be filed up to 180 days before the beginning of the fiscal year on October 1st. Typically, this means that the first available filing date for each fiscal year is April 1st.
Students under F-1 status often find themselves in a cap-gap situation when they have employment authorization under Optional Practical Training (OPT) that ends on or after April 1st, but does not last until the October 1st. To compensate for this cap-gap, the USCIS automatically extends the period of OPT-based employment authorization until September 30th for all F-1 students who properly file an H-1B petition and corresponding request for change of status. This extension lasts until a final decision is made on the H-1B petition. If the USCIS approves the H-1B petition, the student will have proper employment authorization until October 1st, the start date of the subsequent employment authorization.
F-1 students who wish to take advantage of this extension must have their designated school official process Form I-20 on behalf of the student. F-1 students should ensure that their H-1B petition is filed before the end date of their OPT employment authorization. Finally, F-1 students should check with their schools’ offices for international students to ensure that they do not have any additional particular requirements.
VII. H-1B PORTABILITY RULE
Under the American Competitiveness in the 21st Century Act of 2000 (AC21), H-1B beneficiaries can change employers and immediately start work for a new employer once the new employer files an H-1B transfer petition. This is referred to as the H-1B portability rule, which requires (1) the beneficiary to have been lawfully admitted into the U.S.; (2) the new employer to file a new petition before the expiration date of the current H-1B status; and (3) the beneficiary to not have been employed without lawful authorization since arriving to the U.S.
However, an H-1B cap-exempt beneficiary can only take advantage of the portability rule to a cap-subject H-1B position when an H-1B visa is available or when the beneficiary has been subjected to the cap in the past 6 years.
VIII. EXTENSIONS OF STAY
The period of authorized admission under H-1B status generally may not exceed a total of 6 years. “Admission” is defined as time spent in the U.S. for purposes of time accruing to the H-1B maximum period of stay. Accordingly, when an H-1B beneficiary applies for an extension, he or she may request that time spent outside the U.S. be “recaptured” and added back to the total number of days remaining on his or her maximum period of stay. Evidence such as copies of passport stamps, I-94s, and plane or other transportation tickets should be included.
Beneficiary who has timely filed the extension request to work for same employer may continue to work for the employer for 240 days beyond the expiration of the previous H-1B status.
Time in the U.S. as an H-4 dependent of an H-1B principal does not attach to the maximum amount of time allowable for the same H-4 dependent if he or she later successfully petitions as an H-1B principal. Time spent in the U.S. under L status counts toward the 6 year maximum for H-1Bs.
Extensions beyond the 6-year limit will be granted in one-year increments if a labor certification or employment-based petition was filed at least 365 days prior to the expiration of the 6-year limit. The extension may be filed with the current employer or a new employer.
If the beneficiary has an approved employment-based I-140 petition, but he or she cannot adjust to permanent resident status due to priority date that is not current, H-1B petitions may be extended in 3-year increments.
IX. H-1B DOCUMENTS AND PROCEDURE
Before petitioning for an H-1B, the employer/petitioner must first determine the appropriate prevailing wage for the pertinent H-1B job occupation and file an LCA with the DOL.
The petitioner’s H-1B petition package should include the following forms and documents:
Form I-129 (Petition for a Nonimmigrant Worker);
H Classification Supplement to Form I-129;
Form I-129W (H-1B Data Collection and Filing Fee Exemption Supplement);
An approved Form ETA 9035 (Labor Condition Application for H-1B Nonimmigrants);
Form I-539 (Application to Extend/Change Nonimmigrant Status);
Required if dependents of the beneficiary are already in the U.S. under another valid status and are seeking change of status to be an H-1B dependent (i.e., H-4 status).
Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative);
Only required if the petitioner is represented by an attorney.
Petition letter; and,
The petition letter acts as a comprehensive summary of the petitioner’s evidence and the reasons why the evidence demonstrates that the petitioner, beneficiary, and occupation meet the requirements for H-1B eligibility.
Supporting documentation, which may include:
School records, diplomas, degrees, and other evidence of education or training for the specialty occupation;
Copies of any contracts between the petitioner and the beneficiary;
Affidavits or declarations by current or previous employers or other recognized authorities certifying the beneficiary’s recognition and ability;
Documentation showing that the petitioner is a valid U.S. employer;
Documentation establishing a valid employer-employee relationship;
Licenses or other similar documentation of licensure, if applicable; and,
Employment offer letter.
If the beneficiary is already in the U.S. under another valid status, the petitioner should indicate that it is seeking a change of status on the Form I-129 petition. If the beneficiary is not in the U.S. or is not eligible to change status, the beneficiary must obtain his or her visa through consular processing upon approval of Form I-129.
Dependents of an H-1B beneficiary who are already in the U.S. under another valid status may submit Form I-539 (Application to Extend/Change Nonimmigrant Status) to obtain status as an H-1B dependent (i.e., H-4 status). Otherwise, dependents must obtain their H-4 visas through consular processing upon approval of Form I-129.
H-1B petitions are also eligible for Premium Processing Services, which provides guaranteed processing of the petition 15 calendar days from the day the request is correctly received. If the USCIS requests additional evidence or a response to a notice, the response clock time will stop and restart when the response is correctly received. To apply for Premium Processing Services, the petitioner must submit Form I-907 (Request for Premium Processing Service) to the correct service center with the applicable fee. Form I-907 may be filed concurrently with the Form I-129 petition.
The petitioner can expect the following general timeline for the H-1B process:
1. Petitioner and beneficiary gather and draft necessary documents.
2. Petitioner submits the petition package to the appropriate USCIS Service Center.
3. USCIS issues official Notice of Receipt.
Usually 1-2 weeks after submission.
4. USCIS processes petition.
Generally 3 to 4 months, but varies greatly depending on the case, the USCIS Service Center, and the Immigration Officer processing the case.
If under Premium Processing Services, within the guaranteed 15 calendar days.
5. USCIS issues one of four possible actions after initial review:
a. Notice of Approval,
Allows application for visa through consular processing overseas.
b. Request for Evidence (RFE),
Immigration Officer requests additional evidence to address and support specific parts of the petition.
Petitioner may have up to 84 days after the date of the decision to respond.
c. Notice of Intent to Deny (NOID), or,
Immigration Officer gives notice that case will be denied unless certain extra documentation is provided.
Petitioner may have up to 84 days after the date of the decision to respond.
d. Notice of Denial.
USCIS includes explanation of why application denied.
Petitioner has 30 days after the date of the decision to file:
An appeal, if petitioner thinks USCIS’ denial was wrong.
A motion to reconsider, if petitioner wants another Immigration Officer to review the case.
A motion to reopen, if petitioner has evidence absent in the original application or response to an RFE that existed at the time of original filing.
Once the USCIS receives the petitioner’s response to an RFE or NOID, further action will generally occur within 60 days, but may take longer. The petitioner should ask for an update if none is provided by the USCIS within 60 days. If under Premium Processing Services, further action will occur within the guaranteed 15 calendar days.
Once the USCIS receives the petitioner’s appeal or motion to a Notice of Denial, the appellate authority may render one of three possible decisions: (1) agree with the appeal and amend the original decision; (2) disagree with the appeal and affirm the original decision; or, (3) remand the case back to the original reviewing office for further action. This adjudication process may take up to 270 days depending on whether the case is reviewed by a single appellate member or is referred to a three-member panel of the Board of Immigration Appeals.
If the petition is approved, and the beneficiary is not already in the U.S. under another valid status or was not eligible for a change of status, the beneficiary and any dependents not in the U.S. must go through consular processing and obtain the H-1B visa from the U.S. Consulate Offices.
X. WHAT CAN YOU EXPECT FROM VISATOPIA?
Needless to say, filing a petition for an H-1B can be daunting and confusing. Visatopia will ensure that your petition is filed efficiently and is at its strongest when it reaches the reviewing immigration officer’s hands.
Visatopia strives to handle its clients’ immigration matters with the utmost integrity, care, and professionalism. With a 98% approval rate and nearly a decade of experience in employment-based and business-oriented immigration issues, we are deeply committed to helping our clients obtain the best possible results every step of the way on their journey to achieving the American Dream.
Four features distinguish Visatopia from other firms:
Our exceptional legal credentials, extensive knowledge, and breadth of experience enable us to outmatch our major competitors’ services;
Our contingent flat fees, free initial consultation, and encouragement of open client communication without ever getting charged are all ways in which we keep ourselves accountable to our clients and deliver the best possible results at lower costs;
Our policies of promptness and diligence allow us to provide a personal, attentive, and strategized approach in our clients’ immigration matters; and,
Our firm is by immigrants and for immigrants. We are committed to our clients’ successful immigration and, accordingly, provide all-encompassing services to our clients to ensure that we take care of our clients from start to completion.
For the H-1B process, you can expect at least the following services from Visatopia:
Advise whether an H-1B is appropriate for your matter;
Guide you in collecting and organizing the proper documentation and evidence to enhance your application;
Review, edit, and refine relevant documentation to best strengthen your application;
Draft a probative petition letter that cohesively presents the strength of your case along with its supporting evidence;
Provide frequent updates and communication;
Submit your complete application, after your review and approval, to the appropriate USCIS Service Center;
Track your case and update you on the processing status of your case;
Ensure that you respond to any additional requests for evidence or information related to your case;
Provide guidance on whether an appeal or motion is appropriate if your case is not approved; and,
Follow through with work related to appeals and motions if you choose to pursue those routes.
Please refer to the H-1B Flow Chart for a step-by-step guide to what you can expect from Visatopia throughout the representation and the H-1B process.
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