H-1B visas

U.S. employers may file H-1B petitions with USCIS to hire foreign nationals in “specialty occupations”, which are jobs that require a U.S. bachelor’s degree, or its equivalent, in a specialized field.  H-1B status is normally granted for an initial period of three years and can be extended up to six years total—and beyond six years if an employer has timely commenced the permanent residency process.  H-1B petitions require the employer to agree to pay the foreign national beneficiary the greater of the fair prevailing wage for the job, or the actual wage that the employer is already paying U.S. workers in similar positions.

H-1B Visa Basics

The employer must provide a thorough job description which clearly requires a specialized bachelor’s degree (as opposed to general bachelor’s degree) in order to do the job. The beneficiary must also have at least the equivalent of this specialized degree in the field of study that is required for the position. H-1B petitions require the employer to agree to pay the foreign national beneficiary the greater of the fair prevailing wage for the job, or the actual wage that the employer is already paying U.S. workers in similar positions. There must be a valid employer-employee relationship in order to receive H-1B status.

Evidence Required:

  • Descriptive information about the employer’s business(Annual Report; brochure, press kit; proof of financing).
  • Employer U.S. tax ID number, annual gross and net income figures, # of employees.
  • Job description, including minimum requirements for the position ( BS+2yrs.)
  • Proposed salary.
  • Listing of all physical locations where the prospective employee will work.
  • Copy of prospective employee’s passport, including I-94 card (if in U.S.).
  • Copies of prospective employee’s educational credentials (diplomas & translations) including previously issued credentials/degree evaluation, if applicable.
  • Copy of prospective employee’s resume.
  • Copies of any visa documents pertaining to perspective employee, including, where applicable, Form I-20; Form I-797; EAD card; etc.
  • Copies of all petition materials previously filed with U.S. immigration authorities on behalf of prospective employee, if they have ever applied.
  • List of all periods of stay in the U.S. in H or L classification.
  • Copy of most recent paystub if currently employed in U.S. in H, L, or TN status.

Process

Our office will work closely with you to develop the best strategy and then prepare the petition for filing with the U.S. Citizenship and Immigration Services (USCIS).

As part of the H-1B process, we will first file a Labor Condition Attestation (LCA) with the Department of Labor to prove that the wage offered the foreign national will not undercut the wage of a United States worker. While the LCA is pending, we will prepare the H-1B petition.

Once the LCA is approved, we will file the H-1B petition with USCIS, and we will receive a receipt notice within roughly 10-14 days. If the candidate already has been approved for a different H-1B petition within the past six years, he or she can begin working for the new employer with this receipt. Normal processing time takes 2 to 3 months. If that is too long, there is an option to pay an additional filing fee to get a decision within 15 days of filing (“Premium Processing”).

Sample Case

Company 123 has recruited a new employee from another company in the United States. The prospective employee has informed 123’s recruiter that she requires H-1B sponsorship. Since she is currently in H-1B status, and in the United States with an unexpired I-94 card, she will be able to begin her new position with 123 upon the filing of  123’s H-1B petition with USCIS. This lawful work commences just three weeks after our law firm is hired.

Limited Number of H-1Bs

Each fiscal year USCIS may grant up to 65,000 H-1B petitions, and an additional 20,000 for beneficiaries who have earned at least a Masters’ Degree at a U.S. university. The fiscal year commences each October 1. There is an exemption from this annual “cap” on H-1B numbers for certain employers, such as universities, research organizations, and non-profit organizations that are “affiliated” with a university or research organization. Moreover, once the beneficiary of an H-1B petition has been counted against an annual cap, he or she is exempt from the cap for the next six years.

Dual Intent Allowed

H-1B status allows for “dual intent.” While a nonimmigrant status normally requires the intent to remain in the United States only temporarily, “dual intent” allows one to apply for lawful permanent residence concurrently. It allows one to have the intention of remaining in the United States temporarily while at the same time applying to stay in the United States as a lawful permanent resident.

Spouses of H-1B holders are not permitted to work. A spouse who wants to work in the United States will have to obtain his or her own work authorized status—he/she cannot legally work in the U.S. in H-4 status.