H-1B Visas

The H-1B visa is for foreign nationals who wish to perform services in a specialty occupation. It is not a general work permit that allows foreign nationals to engage in unrestricted employment. It requires sponsorship from a U.S. employer (or “petitioner”).

There are 65,000 H-1B visas available per fiscal year, which starts from October 1st through September 30th of each year.  This numerical limit, also known as the H-1B “cap,” only applies to private industry H-1B petitions. Out of the 65,000 H-1B visas, a “carve-out” of 1,400 is set aside for citizens of Chile and 5,400 is set aside for citizens of Singapore.  An additional 20,000 H-1B visas, which is separate from the general H-1B cap,  are available to those who have earned Master’s or higher degrees from U.S. universities. This is also referred to as the “Masters cap.”

Eligibility

For immigration purposes, a “specialty occupation” is defined as:

In order to qualify for an H-1B, both the job offer and the foreign national must meet certain requirements.

The job offer must meet 1 of the following 4 criteria to qualify as a specialty occupation:

1.  A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree;

The foreign national must meet 1 of the following criteria:

1. Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
2. Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
3. Hold an unrestricted State license, registration, or certification which authorizes him/her to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
4. Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Validity

An H-1B visa may be issued for up to a 3-year period.  It may generally be extended in 3-year increments up to a maximum of 6 years. In some cases, it may be extended beyond the 6-year maximum limit if certain conditions are met.

Obtaining an H-1B Visa

The U.S. employer of an H-1B applicant must submit a Labor Condition Application (LCA), which includes some employer labor condition statements, to DOL for certification. Once the LCA is certified, the H-1B petition must be filed with the U.S. Citizenship and Immigration Services (USCIS).

The government filing fees associated with filing an H-1B visa petition are:

1. $460 filing fee;
2. $500 one-time Fraud Prevention and Detection fee;
3. $750 or $1,500 American Competitiveness and Workforce Improvement Act (ACWIA) fee – depending on the number of full-time employees employed in the United States by the H-1B petitioner ($750 if 25 or fewer and $1,500 if over 25);
4. $4,000 (Pub. L. 114-113) applies to cases filed on or after Dec. 18, 2015 by U.S. employers with 50 or more employees in the United States, where more than 50 percent of employees are in H-1B and/or L-1 status.

• There is an optional government filing fee of $1,440 for premium processing service (which guarantees an adjudication within 15 calendar days), and USCIS will adjudicate the case within 15 calendar days.

Once the H-1B petition is approved, the H-1B visa applicant must make an appointment at a U.S. embassy or consulate to have the H-1B visa stamped into his/her passport. Appointment wait times vary with each embassy or consulate from a few days to a few weeks. The passport is typically returned within 5-10 days.

Applicants who have an arrest or criminal record must bring any documents relating to the incident that outline the offense, penalty, probation and/or other dispositions (e.g. arrest report, incident report, final court disposition, etc.). Some U.S. embassies or consulates will require applicants to obtain police certificate. Therefore, applicants should always check the U.S. embassy website for post-specific requirements. Arrests, criminal records and prior immigration violations can significantly impact visa issuance times, and in some cases, can render applicants inadmissible to the United States.

In some situations, where the H-1B applicant is already in the United States on some other type of visa classification, the U.S. employer may file an H-1B change of status petition with USCIS. In these cases, obtaining the visa stamp at a U.S. embassy or consulate may not be necessary until a later date when the applicant travels internationally.

Changing Jobs or Employers

Unlike any other nonimmigrant visa, an H-1B professional can “port” or “transfer” his/her H-1B and can start working for a new employer as soon as a new H-1B petition is filed and received by USCIS — the new H-1B petition for the new employer does not have to be approved to start working. This is also known as “H-1B portability.” Once the new petition is filed, H-1B employment authorization continues until the new H-1B petition is adjudicated by USCIS. If the new petition is denied, such employment authorization ceases.

In order to qualify for H-1B portability:

• The foreign national must have been lawfully admitted into the United States;
• An employer must have filed, on behalf of the foreign national, a nonfrivolous H-1B petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and
• Subsequent to such lawful admission, the foreign national must not have been employed without authorization in the United States before the filing of such petition.

H-1B1 Visas for Chileans and Singaporeans

The eligibility requirements for Chilean and Singaporean H-1B1 visas are the same as regular H-1B visa. However, these are some of unique features of Chilean and Singaporean H-1B1 visas:

• Issued in 18-month increments;
• Not eligible for premium processing;
• H-1B portability provision does not apply;
• No immigrant intent (H-1B1 applicants must show ties to home country);
• Does not require payment of the $500 Fraud Prevention and Detection fee;
• Can be processed really quickly — applicants can bypass USCIS filing requirement by applying directly at a U.S. embassy or consulate (usually in their home country). Applications submitted directly to a U.S. embassy or consulate do not require payment of the $750 or $1,500 ACWIA fee; and,
• Can be extended indefinitely.

Accompanying Family Members

Immediate family members of H-1B and H-1B1 professionals, such as spouses and minor children under 21 years of age are eligible for H-4 visas. They may attend school in the United States. However, H-4 dependents are generally not eligible for employment authorization, unless they qualify under the new provisions for certain H-4 spouses with pending green card applications.