An employer can sponsor an employee for an H-1B visa to temporarily work in the United States in a specialty occupation. A specialty occupation is:
- An occupation which requires theoretical and practical application of a body of highly specialized knowledge . . . including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
The employee must have at least a Bachelor’s degree or the equivalent in a specific specialty. Examples of what is equivalent to a Bachelor’s degree could be that the degree requirement is common to the industry, the job is so complex or unique it can only be performed by somebody with a degree, the employer normally requires a degree, or the duties are specialized and complex. If the employee has a foreign degree, it must be evaluated by an educational credentialing organization that determines it to be at least equivalent to a U.S. Bachelor’s degree. Specialized training and progressive experience can be equivalent to a Bachelor’s degree.
Period of Stay
The initial period of stay is valid for up to three years, depending on the dates chosen in the Labor Condition Application (LCA). The total period of H-1B status is six years.
However, under the AC21 law, individuals can renew their H-1B status beyond the six years in one-year increments if their PERM labor certification or Form I-140 green card petition was filed at least 365 days prior to the completion of the six-year limit. Individuals whose I-140 has been approved, but whose priority date is not current, may apply for extensions of H-1B status in three-year increments; there are no limits to the number of extensions.
Labor Condition Application
The first step is to get a Labor Condition Application certified by the Department of Labor. In the LCA, the employer attests that there is no strike or lockout; the working conditions will not adversely affect U.S. workers; the employer will pay the greater of the prevailing or actual wages, notice of the filing of the LCA has been given to other employees or the bargaining representative; and if the employer is H-1B dependent, recruitment and non-displacement attestations may apply.
Congress caps the number of H-1Bs that can be issued annually at 85,000. Of those, 20,000 H-1B visas are available for individuals with a master’s degree or higher from a U.S. university. Of the 65,000 H-1B visas reserved for individuals with a bachelor’s degree or higher, 6,800 are reserved for Chileans and Singaporeans (H-1B1 visas).
Because demand for H-1B visas far outstrips the supply, U.S. Citizenship and Immigration Services (USCIS) uses a random, electronic lottery system to select who can apply for an H-1B. Starting in 2020, USCIS began requiring H-1B employer sponsors to pay a $10 non-refundable fee to register each H-1B candidate between March 1 – 20. By March 31, USCIS will notify those employer sponsors whose H-1B candidates have been selected to apply for an H-1B visa; H-1B petitions are due by June 30.
Some H-1Bs are not subject to the cap. If the petitioner is an institution of higher education, a nonprofit associated with an institution of higher education, a nonprofit research organization, or a government research organization, the petition is not subject to the lottery process.
Work Permits for H-4 Spouses
H-4 spouses now have the right to work in specific situations. If the H-1B spouse has an approved Form I-140, Immigrant Petition for Alien Worker (one of the steps in the green card process), or, has been granted an extension under the law AC21, the H-4 spouse can apply for an Employment Authorization Document (EAD) to have permission to work.
Form I-129 fee: $460
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee (depends on the number of people employed by the employer): $750 and $1,500
Fraud prevention and detection fee: $500
Public Law 111-230 fee: $2,000
Premium processing service fee (optional)*: $2,500
*Fee increased in Oct. 2020
- Form G-28: Notice of Entry of Appearance as Attorney or Accredited Representative
- Form I-907: Premium Processing Service
- Form I-129: Petition for a Nonimmigrant Worker
- H Classification Supplement to Form I-129
- H-1B Data Collection and Filing Fee Exemption Supplement
- Certified Labor Condition Application (LCA)
- Initial petition: up to 3 years
- Extensions and subsequent petitions: a total of 6 years
- Further extensions under AC21: 1 year or 3 years at a time depending on where you are in the green card process
H-1B Specialty Occupation Visas
It is easy to get lost in the complex legalese and terminology that is used to discuss the H-1B visa eligibility criteria and petition process. Some of the need-to-know legal definitions include:
- Employer-employee relationship: to qualify for the H-1B specialty occupation classification, a valid employee-employer relationship must exist. This relationship is indicated by the fact that an employer can hire, fire, pay, supervise, or otherwise control the work of the employee.
- Mandates: there is a Congress-mandated cap on the number of H-1B visas that can be awarded each year. This means that Congress has set forth these limits and has the power to adjust the annual cap if need be.
- Specialty occupation requirement: to be eligible for an H-1B visa, the position must be considered a specialty occupation. This means that the position requires the use of highly specialized knowledge and necessitates that the worker holds a bachelor’s or higher degree as a minimum requirement for entry into the role.
- Educational Component: there are requirements placed on the level of education that an H-1B visa holder must possess. To meet this educational component of the eligibility requirements for a specialty occupation, the applicant must hold either a United States bachelor’s or higher degree, the foreign equivalent of this degree, of sufficient work experience. The regulations set forth in 8 C.F.R. § 214.2(h)(4)(iii)(D)(2) dictate how equivalency is determined.
- Duration: the H-1B visa is valid for three years, with an extension of up to 3 years thereafter. This makes the maximum cumulative initial duration of the H-1B visa 6 years.
Cap Limitations and Exemptions
While there is a limit (known as a “cap”) on how many H-1B visas can be granted in a year, certain exemptions exist that may allow your company to avoid these cap limitations. The following categories are considered cap-exempt:
- Public or nonprofit institutions of higher education
- Nonprofit entities that are affiliated with institutions of higher education
- Nonprofit research organizations
- Government research organizations
Of the approximately 65,000 H-1B visas that are available, 6,800 are set aside for citizens of Singapore and Chile. There are also another twenty thousand H-1B visas available for individuals who have earned a master’s degree or doctorate in the United States. Moreover, H-1B workers who hold positions in the Commonwealth of the Northern Mariana Islands and Guam may be exempt if their employers file their petition before December 31, 2029.
Changes of Status in the United States
It is not uncommon for individuals to change their visa status while in the United States. Many times, international students on an F-1 visa hope to adjust their status to H-1B status to allow for work in the United States. To change status, the hopeful H-1B must identify an employer to sponsor their petition and then proceed through the H-1B application process. In situations where the individual’s current visa is set to expire while waiting for the H-1B petition to be approved, they may file a cap-gap extension to remain on their current visa status while waiting for H-1B approval.
Consular Processing for Visa Stamping at the United States Department Abroad
Some people assume that once the United States Citizenship and Immigration Services approves a petition, they are able to gain entry into the country. This is not the case, however, and additional steps must be taken to successfully secure an H-1B visa. After a petition is approved, the foreign professional must apply for the visa using Form DS-160 and submit the application payment. Then, they will be required to schedule appointments for biometrics as well as their visa interview. When attending this interview, it is essential to bring all key documents to the consulate for processing and visa stamping.
How to Petition
Before petitioning for an H-1B visa, the employee’s United States employer will sponsor the rest of the process. The petition can be sponsored by either a current employer or a new, prospective company. As a sponsoring employer, your company will be required to submit the Labor Condition Application and obtain a Prevailing Wage Determination to ensure that the foreign professional is not over- or under-paid compared to other workers in similar positions. Then, your company will file Form I-129, Petition for Nonimmigrant Workers, as well as all supporting documents and evidence.
H-1B Dependent Employers
An H-1B dependent employer is one that hires more H-1B workers than the normal standard. Any employer is considered H-1B dependent if one of the following is true:
- It has twenty-five or fewer full-time employees and at least 8 are H-1B visa holders, or
- It has between 26-50 full-time employees and at least 13 are H-1B visa holders, or
- It has fifty-one or greater full-time employees and 15% or more are H-1B, visa holders.
These employers are required to determine dependency when filing the Labor Condition Application, Form I-129, and/or a request for an extension of H-1B visa status.
Employers can hire foreign employees to fill seasonal jobs by petitioning for the following H visas:
A company or organization may petition for an H-3 Visa for Nonimmigrant Trainees for a foreign national to receive training or experience unavailable in the foreign national’s home country.
The spouse and dependent children of H-1A, H-1B, H-2A, H-2B, and H-3 visa holders are eligible for an H-4 Visa for Skilled Worker Dependents. Some spouses are eligible to work permits with an Employment Authorization Document.
How to Choose the Best H-1B Attorney for Your Needs
The attorney you choose to handle your immigration needs will largely determine the outcome of your case. The right attorney will work with you to fully understand your situation and develop a legal strategy to help reach your goals. The wrong attorney, on the other hand, may apply a one-size-fits-all approach and delay your employee’s ability to work in the United States. To choose the best H-1B attorney for your needs, consider the following:
- Record of success and approval rating
- Proposed strategies for mitigating risk during the process
- Ability to work quickly and efficiently
- Fee structure
- Communicativeness and responsiveness
Accomplish, Together with Alcorn Immigration Law
At Alcorn Immigration Law, our practice centers around providing high-quality immigration services to ensure that United States-based companies are able to hire and retain foreign talent. Through our strategic and tailored approach, we have been able to successfully secure H-1B visas for numerous clients. With offices in Mountain View, CA, and New York, NY, we apply industry-specific knowledge to achieve results for employers and foreign professionals around the country. To begin the process of petitioning for an H-1B visa or adjusting your visa status, consider contacting us at +1(855) 546-0015 today