Thursday, March 10, 2011

H-1B Visa & its Requirements

H-1B Visa & its Requirements:

The H-1B is a nonimmigrant work visa for a person who will be employed temporarily in a specialty occupation or as a distinguished fashion model.  This means that an H-1B holder does not entitle the person to remain in the U.S. permanently nor does it provide the person with a green card.  A person has to go through other means to obtain permanent residence.

The worker must be employed in a specialty occupation, which is defined as a job that requires application of specialized knowledge and at least the equivalent of a 4-year degree.  Examples of specialty occupations are:  architects, engineers, scientists, attorneys, etc.

The applicant for this H-1B visa must show 1) they possess such qualifications, as stated above, 2) the job is a specialty occupation, and 3) the employer has a need for such a position.  The applicant does not need to show that there are no qualified U.S. workers.  The “no able and qualified worker” requirement applies to labor certifications not in an H-1B application. However, there are other representations made to the Department of Labor including paying the prevailing wage.

Advantages of H-1B Visas

The H-1B visa is one of the few visas that allow dual intent.  While the applicant is here in H-1B status, which allows them to stay temporarily, the person can also apply for something that will allow them to gain permanent residence.  This means while on H-1B or applying for H-1B, the applicant can apply for a green card through a labor certification or other basis.

This visa also allows the worker to work for the specific employer, and within the restrictions of the H-1B Visa.  In other words, getting an H-1B Visa with employer A does not allow one to work for employer B or to be self-employed.

The visa also allows dependents to remain in status, on H-4 visa.  The H-4 visa does not allow the dependent to work legally.  One can remain in H-1B status for 3 year periods up to a maximum of 6 years, but can get one-year extensions beyond the 6 years if they meet certain requirements.

How long to get an approval?

Of course the time it takes to get an application approved varies depending on the place of employment and the strength of the application.  Premium Processing is available for an extra USCIS/DHS fee of $1000, which guarantees that within 15 calendar days, the applicant will receive an approval, a denial, or a request for more evidence.  Regular processing could take approximately 4-6 months.  If the applicant is currently not in H-1B status, then they cannot work under valid H-1B status until the application is approved, and may have to wait until the new fiscal year of H-1B’s arrives.

Switching Employers

If the applicant is currently in H-1B status, then most likely (depending on type of employer) the applicant does not have to wait for approval to start working for a different employer.  They can start working for the 2nd employer upon filing for the new H-1B.  Note that H-1B’s are employer-specific.  The only advantage of switching from one employer to another is that the person can start working immediately for the 2nd employer upon filing (this rule is called AC21).  However, a new application does have to be filed by the 2nd employerThere is no such thing as transferring H-1B applications from one employer to another.  All of this also assumes that the applicant has not exceeded the 6-year period (and does not qualify for one year extensions).  As always, an attorney should be consulted.

The H-1B Cap

The H-1B cap is a limit of how many new H-1B visas can be issued each fiscal year. The H-1B cap opens on April 1 each year.  The general limit is currently 65,000.  There is a separate cap, which is currently 20,000, for those who have a master’s degree or higher from a U.S. institution of higher education.

People already in H-1B status are not affected by these caps.  So, it does not apply to any of the following situations:

1.  Extending the amount of time a current H-1B worker may remain in the United States
2.  Changing the terms of employment for current H-1B workers
3.  Current H-1B workers wishing to change employers
4.  Current H-1B workers wishing to work concurrently in a second H-1B position

Further, nationals of Singapore and Chile count towards a separate cap of 6,800 (5,400 for Singapore and 1,400 for Chile). 

Also, doctors working in underserved communities as a result of receiving a J-1 home residency requirement waiver sponsored by a state or federal agency are also exempt from the annual cap.

Lastly, if the alien will be employed at an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization or a governmental research organization, these H-1B petitions are exempt from the caps.

Rehan Alimohammad is an Attorney and CPA.  Our office handles all immigration law issues and tax law. Please visit our website at, or call our offices at (281) 340-2074 or (800) 814-3920.

Disclaimer:  This article is not meant as specific advice regarding a person’s individual case.  An attorney should be consulted.  This article does not create an Attorney-Client relationship.  

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