Requirements for an H-1B Specialty Worker Visa
H-1B status may be granted for an initial period of up to three years; however, extensions can be obtained for up to a total of six years and sometimes more.
H-1B specialty worker visas are the most common temporary work permits available to professionals. They are obtained routinely by U.S. corporations and other organizations that require foreign professional workers. A U.S. employer can file an H-1B specialty worker petition with the United States Citizenship and Immigration Services (USCIS) on behalf of a foreign employee provided that the job requires at least a bachelor’s degree in a particular field. Eligible fields of endeavor include, but are not limited to, most computer science jobs, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and other positions that require a degree of a combination of education and experience in a field related to the job’s duties. The potential H-1B worker must either have a university degree, or a combination of education and experience equal to a degree in a field related to the offered job. Three years of progressive experience in an occupational specialty often is deemed equivalent to one year of university studies. H-1B status may be granted for an initial period of up to three years; however, extensions can be obtained for up to a total of six years and sometimes more. An employer can request an H-1B visa for less than three years, and H-1B employment may be part-time. An individual requesting part-time H-1B status must be able to demonstrate that employment remains his/her primary purpose for being in the U.S. An H-1B authorizes a foreign worker to be employed only by the petitioning employer under the terms of the H-1B petition, and a foreign worker maintains lawful status by employment pursuant to the terms of the H-1B petition. An H-1B worker may hold more than one H-1B visa to work for multiple employers simultaneously. Significantly, there are a limited number of H-1B visas available each fiscal year, which begins October 1, and some employers and foreign nationals are exempt from this annual quota.
Employers must offer an H-1B employee the same salary and benefits packages normally offered US workers in similar positions. An H-1B-sponsoring employer is obligated to pay H-1B employees at least the prevailing rate of pay for that position in the area of the work site. Employers are also obligated to keep records to establish they are paying the employee the required wage and are otherwise complying with the terms and conditions of the H-1B program.
The time it takes to obtain an approved H-1B varies greatly, depending upon the processing time of the various government agencies involved. The process should be initiated as early as possible, however an application may be filed with the government no more than six months in advance. If the foreign national is outside the United States or holds another non-immigrant status other than H-1B, he/she cannot begin working for the petitioning employer until the H-1B petition filed with USCIS is approved and the individual holds H-1B status. Individuals who already hold H-1B status for another employer may be able to start work for the new employer upon the filing of the petition with USCIS. Although routine H-1B processing takes months, USCIS premium processing results in a decision within 15 days for a supplemental $1000 filing fee. Other costs associated with an H-1B petition include a standard $320 filing fee, a $500 “antifraud” fee, and—for certain employers—a fee of $750 or $1500 (depending on the employer’s size) to train U.S. workers.
Limitations on the Number of New H-1B Visas Available Each Year
There is an annual limit of 65,000 new H-1B visa petitions per year. Employers currently preparing H-1B petitions for the subsequent fiscal year availability may submit these visa requests no earlier than six (6) months prior to the anticipated start date. Since every fiscal year begins on October 1st, the earliest that a new H-1B visa petition may be filed for the following fiscal year is April 1st.
Fortunately, there are several types of employers and individuals that are not subject to the annual cap. Employees of colleges and universities - and their related or affiliated nonprofit entities, nonprofit research organizations, and government research organizations are exempt from this cap. Individuals not subject to the annual cap are those presently in H-1B status, those who previously held H-1B status within the past 6 years and have not left the U.S. for more than one year after attaining such status, and physicians who held J-1 status and received a waiver of the 2-year home residence requirement pursuant to the Conrad Waiver Program. Moreover, there may be a permanent exemption from the annual cap for 20,000 individuals who have received a Master’s or higher degree from a U.S. college or university.
Maggio & Kattar represents and works closely with both the employer and the potential H-1B employee, regardless of who pays our attorney fees. We provide both parties with a written plan of work, delineating the information needed and assigning a team of experienced immigration lawyers and paralegals to work on the case. Our clients may contact any member of the team assigned to their case for assistance and information regarding their case. A more detailed discussion of the H-1B law and procedures is available in this article (PDF).