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.
Degree Requirements
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 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, with one-year extensions available under the AC21 law for individuals in the process of obtaining a green card for permanent residence.
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.
H-1B Lottery
For the past several years, a cap and lottery system has been in place for awarding H-1B visas: 20,000 H-1B visas are available for foreign workers who have at least a master’s degree from a U.S. university, and 65,000 H-1B visas available for those without a U.S. Master’s degree. Of the 65,000 H-1B visas, 6,800 are reserved for Chileans and Singaporeans (H-1B1 visas).
As in the previous year, the U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions during the first five days of April (April 1-5) and conduct a random lottery. In fiscal year 2016, USCIS received approximately 233,000 petitions that are subject to the cap, including petitions from those with master’s degrees or higher, which means a one-in-three chance of being selected.
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.
$460: fee for Form I-129
$750/$1,500: American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee (depends on number of people employed by employer)
$500: Fraud prevention and detection fee
$2,000: Public Law 111-230 fee
$1,225: Premium processing service fee
- 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: total of 6 years
- Further extensions: 1 year at a time with AC21
“Dual”
OK to simultaneously seek permanent residence (green card)
045: Thanksgiving Appreciation
In this episode of Immigration Law for Tech Startups, I explain the American holiday of Thanksgiving, which this year falls on November 26, and discuss the things in 2020 that I’m most appreciative of. I’m appreciative of my amazing team and the work they do day in and day out. And I’m…
044: 7 of the Most Startup-Friendly Visas Explained
In this episode of Immigration Law for Tech Startups, I discuss the top seven most startup-friendly visas and green cards and what startup founders can and cannot do on each of them. Unlike Canada, Australia, the U.K., and New Zealand, the United States does not have a startup visa. Congress attempted to…
043: What a Biden Victory Means for Immigration
In this episode of Immigration Law for Tech Startups, I’m thrilled to discuss the Biden administration’s plans for reforming the U.S. immigration system. Before I dive in, I know we’ll see meaningful changes in the U.S. under President-elect Biden and Vice President-elect Kamala Harris, from the way we govern ourselves, to our relationships with other…
042: Capture Investors’ Attention With Your Authentic Story with Strategist and Storyteller Eileen Wu
In this episode of Immigration Law for Tech Startups, I’m joined by Eileen Wu, the founder of Luminarii, a creative agency that helps investors and entrepreneurs unlock the power of their authentic stories by leveraging marketing strategy, communications, and media expertise. Eileen advises many tech startup founders on how to get the attention of investors…
041: Investing in Immigrant Entrepreneurs with VC Carmen Pallafox
In this episode of Immigration Law for Tech Startups, I’m excited to welcome Carmen Palafox, a venture capitalist based in Los Angeles who is launching her own firm, 2045 Ventures. She is on the Board of Directors of the National Venture Capital Association (NVCA) and is a founding board member of Latinx VC, a group…
040: Due Diligence and Founder Immigration for VCs
In this episode of Immigration Law for Tech Startups, I discuss the immigration-related due diligence process for startups. It’s very important for international founders, international tech talent, and investors to know about devising immigration strategies for founders and top talent and ongoing compliance with immigration laws. During the due diligence process, potential investors investigate…
039: Startup Law with Attorney Lindsey Mignano
In this episode of Immigration Law for Tech Startups, I’m thrilled to be joined by my trusted colleague and longtime friend Lindsey Mignano, founding partner of Smith Shapourian Mignano, a corporate law firm based in San Francisco that focuses on startups. We often assist each other’s startup clients with corporate structuring and immigration matters. …
038: Extraordinary Ability Bootcamp Course
In this episode of Immigration Law for Tech Startups, I proudly unveil the details of Alcorn Immigration Law’s new Extraordinary Ability Bootcamp, an online course. In my previous “Extraordinary Ability Bootcamp” podcast episode, I discussed the O-1A nonimmigrant visa for extraordinary ability, the EB-1A extraordinary ability green card, and the EB-2 NIW (National Interest Waiver…
037: What is U.S. Startup Founder Immigration?
Before I jump into this episode, I want to thank all the loyal fans of this podcast. It’s nice to know my immigration expertise has found its way to you—wherever you are in the world. In this episode of Immigration Law for Tech Startups, I share some of the immigration strategies that we have used…
036: 7 Ways to Expedite Your Immigration Case
In this episode of Immigration Law for Tech Startups, I discuss seven options you can potentially use to speed up a decision on your case. Not all of the seven options I discuss in this episode may apply to your case. Many of these options only apply to individuals currently residing in the U.S.…