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H-1B Overview

The H-1B visa category is available to U.S. employers seeking to employ foreign nationals in “a specialty occupation.” A specialty occupation is an occupation that requires the theoretical and practical application of a body of highly specialized knowledge along with at least a bachelor’s degree or its equivalent. Some examples of specialty occupations include engineers, architects, physicians, accountants, and teachers. The H-1B category is also available for fashion models of distinguished merit ability.

In order for a foreign national to obtain H-1B status, the individual must be sponsored by a U.S. employer. The H-1B sponsorship process involves the filing of a petition by the employer. The petition includes evidence to establish that the position being offered to the H-1B candidate qualifies as a specialty occupation, the candidate is qualified for the position and the job offer is bona fide.

Prior to filing an H-1B petition, the employer must submit a Labor Condition Application (LCA) for certification with the U.S. Department of Labor. The LCA contains declarations about the employer’s obligations, including its payment of the prevailing wage for the position and the working conditions offered.

For most employers, the USCIS filing fees for an initial/new H-1B petition total either $1,575 (employers with  25 full-time employees) or $2,325 (employers with  26 full-time employees). Certain employers are exempt from the Education and Training Fee, which is $750 for employers with  25 full-time employees and $1,500 for employers with 26 full-time employees. These employers include certain nonprofit or government research organizations and entities that are related to or affiliated with institutions of higher education. Under Public Law 111-230, employers are required to pay an additional $2,000 fee for each initial/new H-1B petition if: (1) the employer employs  50 individuals in the U.S.; (2) More than 50% of those employees are in H-1B or L status; and, (3) the petition is filed before October 1, 2014.

The adjudication times for H-1B petitions vary. The average processing time is around 2 to 3 months. Premium processing service is available for H-1B petitions. This requires an additional $1,225 filing fee and guarantees a 15 calendar day processing of the petition. Within 15 calendar days, USCIS will issue an approval notice, or if appropriate, a Request for Evidence. A request for premium processing service can be made either at the time of the initial filing or after the petition has been filed.

If the candidate does not hold H-1B status, he or she must wait until the petition is approved to begin working for the employer in H-1B status (unless the candidate is authorized to work pursuant to another status such as TN, L, O, F-1/OPT). If the candidate already holds valid H-1B status with another employer, he or she can typically begin working for the new employer upon the filing of the H-1B petition. This is referred to as “portability.”

The spouses and children of H-1B employees are eligible for a dependent visa, the H-4 visa. To obtain H-4 status, the dependent must either file an application with USCIS or apply for a visa at an embassy or consulate overseas. H-4 visa holders are not permitted to work, but they may attend school.

H-1B employment is tied to the petitioning employer. In order for an H-1B candidate to work for a new employer, the new employer must first file a petition with the filing fees applicable to new petitions.

An H-1B petition may be approved for a period of up to 3 years and may be extended for a total period of 6 years. Once the H-1B employee has spent 6 years in the U.S. in H-1B status, he or she must reside outside of the U.S. for one year before becoming eligible for a new 6 year period of H-1B status. An exception applies in cases involving H-1B employees who have initiated the green card process. These employees are eligible to extend their H-1B status beyond 6 years without spending a year abroad if certain conditions are met. Specifically, either an application for labor certification or an immigrant visa petition must have been filed on the H-1B employee’s behalf at least 365 days prior to reaching the 6-year period of H-1B stay.

In calculating an H-1B employee’s 6 year period of stay, only the time that the employee spent in the U.S. in H-1B status and/or L status should be counted. Time that the employee spent abroad should be deducted from the 6 year calculation.

There is a limit on the number of new H-1B visas that are available annually. Each fiscal year, 65,000 H-1B visas are available under the “General H-1B Cap” and an additional 20,000 H-1B visas are available to candidates holding at least a U.S. Master’s degree. 6,800 H-1B visas are set aside each fiscal year for H-1B candidates who are nationals of Chile and Singapore pursuant to free trade agreements. Therefore, the actual numerical limit for H-1B cases under the General H-1B Cap is actually 58,200. If the 6,800 H-1B visas set aside under the trade agreements exceeds the demand for those visas, the unused numbers are made available under the General H-1B cap.

Petitions which are subject to the cap can be filed as early as April 1st for the next fiscal year. If a petition is accepted under the cap and approved, the H-1B candidate can begin working in H-1B status on October 1st. Certain employers such as educational institutions and nonprofit or government research organizations are not subject to the H-1B cap.