H-1B Visas-Temporary Professional Workers

 

 

H-1B visas are the most common route to work in the United States for professional foreign workers. Currently, 85,000 H1Bs are issued every year (with 20,000 of those reserved for graduates of US Graduate Schools), usually in three year increments, with a maximum duration of six years (which can be extended in several different scenarios post 6 years-see below). A new six year period commences if the person departs the US for one year.

 

The basic requirements needed to obtain an H-1B visa are a job offer from a US employer, where the position itself requires a minimum of a specific 4 year Baccalaureate degree and the applicant has the relevant education and/or work experience to fulfill these requirements. Additionally, the employer must pay the prevailing wage in that specific area for that specific position (and file a Labor Condition Application with the US Department of Labor).

 

H-1B visas usually take between 3 weeks (through premium processing-for an additional $1225 filing fee) and 16 weeks to process and receive. Among the many positions considered specialty occupations in this category are: information technology professionals such as programmers, analysts and network engineers, biomedical professionals/scientists, Physicians (who graduated from US Medical schools and passed parts 1 and 2 of the USMLE), Physicians (who graduated Foreign medical schools and passed all 3 parts of the USMLE) some senior/managerial registered nurses, journalists, accountants, teachers, researchers and scientists. Immediate family members of H-1B visa holders are entitled to H-4 visas, which are not work authorized unless the H-1B holder is the beneficiary of an approved I-140.

Key H-1B Issues:

  1. Portability: When an individual already holds H-1B status/visa, they may change employers by having the new employer file a petition on behalf of a new employee. The individual may begin employment with the new employer upon filing (and receipt of the I-797 receipt notice) the new petition. The individual does not need to wait for approval of the new petition to begin working for the new employer.

  2. Gaps in employment:   NEW 60-Day grace period. Starting January 17, 2017, E1, E2, E3, H1B, H1B1, L1, O1 TN Visa holders will be given a 60-day Grace Period once per authorized validity period. This will allow these workers to legally stay in the U.S. even if their employment is suddenly terminated.  Please note that if the authorized validity period is less than 60 days after the termination of the employment, then the grace period will be given only until the end of the authorized validity period, not for the full 60 days. Previously, when applying for a "change of employer" H-1B, CIS will request copies of the individuals most recent pay statements with the previous employer to show that the individual maintained his/her status. Officially, workers are out of status immediately upon termination or resignation. While no official grace period existed, H-1B change of employer petitions were commonly approved when filed within a reasonable period time (2-4 weeks) from the last date of employment. ILG strongly recommends filing before leaving the previous position, if possible. The oft-quoted "10 day rule" only applies to H-1B visa holders who fulfilled their entire period of sponsorship, and are given 10 days to leave the United States upon the expiration of their visas.

  3. Cap Issues: The H-1B cap is currently set at the very low number of 65,000 per year, with an additional 20,000 cap-exempt visas for graduates of U.S. master's degree programs or higher. The visas are released each year on October 1, however, one can apply for the October 1 released visas on April 1, 6 months in advance. ILG strongly recommends filing as early as possible, as the cap has been reached in the first days of filing for the last several years. Certain employers and employees are exempt from the annual H-1B cap. (see below)

  4. Cap Exemptions:

    • H-1B visa holders who seek to change employers

    • H-1B workers filing to work concurrently in a second H-1B position

    • H-1B workers filing to change the terms of their employment

    • H-1B workers who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

    • Conrad 30 J Waiver Recipients-Physicians working in medically underserved areas (MUA)

    • USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.

  5. Dual Intent: An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting his/her H-1B status. This is known as "dual intent" and has been recognized in immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.

  6. 7th Year Extensions (and beyond): An H-1B visa holder who is reaching his/her 6 year limit can extend past the 6th year if they have a labor certification or I-140 pending for more than 365 days (1 year extension), or if they are prevented from gaining their US permanent residence status due to an unavailability of immigrant visas under the per country quota system (see Visa Bulletin) and have an approved I-140 (3 year extension).

  7. Work experience evaluations in lieu of baccalaureate degree: Shanti, Inc. v. Reno, 36 F. Supp. 1151, 1161-1166(D.Minn.1999) reaffirmed the longstanding INS rule allowing for 3 years of experience to be equivocated as one year of college. Therefore, H-1B applicants can display the equivalent of a college degree by proving 12 years of relevant, progressive work experience. One should get an accredited evaluator to make such a determination before presenting to CIS.

  8. F-1 Student Visa OPT Cap-Gap issues-Please refer to our F-1 OPT page.  

At ILG, business and employment immigration is one of our primary focus areas. Our lawyers have assisted many employers and professionals in securing H-1B visas. Our H-1B visa lawyers offer experienced, comprehensive representation in the H-1B visa application process.  Please contact us to learn more about how we can assist you. 

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