Immigration Law

 

H-1B Petition Requirements

An H-1B visa is a common employment based non-immigrant visa for professional workers pursuing a career in a “Specialty Occupation”.

An equivalent of a Bachelor’s Degree or higher is required to apply for a visa under this classification.

For most non-immigrant professionals, the H-1B visa is a stepping stone and bridge to stay and work in the U.S. until they can obtain a green card through the labor certification process.

Here are several key aspects of the H-1B Visa:

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  1. College Education (Must be equivalent to four years of undergraduate experience from an accredited college or university in the United States. For work experience evaluations: three years of progressive work experience in a related field is equivalent to one year of college) Also, the Bachelor’s degree must be related to the job/duties for the position offered, e.g. Bachelor’s Degree in Information Systems for a Systems Analyst position.
  2. Specialty Occupation – job must involve the application of practical and theoretical knowledge. Job must typically be complex i.e. engineer, scientist, software developer, doctor, teacher, etc. . Examples that are not considered a specialty occupation include: sales persons, most marketing jobs, customer service, administrative assistants, and business mangers.
  3. Job Offer from Petitioner
  4. Prevailing Wage – the minimum salary that the employer must pay the Alien. Salary is based on a credible wage survey taken from jobs of a particular occupation within a thirty mile radius.
  5. Proof of ability of Employer to pay the alien’s wage – this can be evidenced by tax returns, financial statements, and / or quarterly wage reports. Typically not required for organizations that have distinguished reputations, e.g. Ernst and Young, Intel, or PricewaterhouseCoopers.
  6. Labor Condition Application (LCA) – Employer agrees to treat alien same as U.S. workers, pay alien if benched temporarily, pay for return airfare if lay off alien prematurely. LCA filed with U.S. DOL electronically. Salary proposed in the LCA must be 95% of the prevailing wage.
  7. Good for 3 years, renewable for an additional 3 years (Alien can apply for a seventh year extension if they have a pending I-140 Petition).
  8. Spouse and children can get H-4 status. H-4 cannot work in U.S. H-4 kids can go to public school.
  9. H-1B alien can only work for Petitioner. Generally must get new petition filed and approved by CIS first before going to work for different employer.
  10. If in U.S., must be in status to do change of status (COS) to H-1B or extension of status (EOS). If overseas, must be fully admissible to the U.S. in order to get H-1B visa to come to U.S.
  11. Congress currently has H-1B cap at 65,000 per year. Used to be 195,000. EOS aliens not subject to cap as are certain other aliens as well. Exception for aliens with Masters Degrees (new quota set aside for them).
  12. H-1B visa holders are allowed dual intent (non-immigrant and immigrant intent).
  13. No shortage of U.S. workers need be proved.
  14. H-1B cap set by Congress every year. Currently Congress has allotted 65,000 H-1B visas a year. The following H-1B non-immigrants are either exempt from the H-1B cap or eligible to draw from a different quota.
    1. H-1B non-immigrants already in status and applying for extensions
    2. H-1B non-immigrants already in status seeking to “port” to another employer (H-1B transfers)
    3. H-1B non-immigrants already in status applying for concurrent H-1Bs
    4. Foreign Nationals that have obtained a U.S. Master’s Degree (CIS has allotted an additional 20,000 H-1Bs for this category)
    5. Australian Nationals (can receive E3 visas)
    6. Chilean Nationals (can receive a special Chilean H-1B visa)
    7. Singaporean Nationals (can receive a special Singaporean H-1B visa)
    8. Canadian and Mexican nationals can enter on a Trade NAFTA (TN) visa in one year increments
    9. Foreign Nationals applying for an H-1B position at an educational institution (College or University)
    10. Foreign Nationals who are working for non-profit entities related to institutions of higher education.
    11. Nonprofit research organization or a governmental research organization
    12. Is the beneficiary of this petition a J-1 nonimmigrant alien who received a waiver of the two-year foreign residency requirement described in section 214 (l)(1)(B) or (C) of the Act
    13. Has the beneficiary of this petition been previously granted status as an H-1B nonimmigrant in the past 6 years and not left the United States for more than one year after attaining such status
    14. If the petition is to request a change of employer, did the beneficiary previously work as an H-1B for an institution of higher education, an entity related to or affiliated with an institution of higher education, or a nonprofit research organization or governmental research institution
    15. Has the beneficiary of this petition earned a master's or higher degree from a U.S. institution of higher education, as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a)
    16. If an H-1B employee has used up his 6 years of H-1B time and went abroad for one year, then they are eligible to re-enter the U.S. on a brand new “6 year clock”

USEFUL LINKS AND INFORMATION


Immigration Law Terminology

Visa Bulletins

H1-B description

Immigration through Investment
 
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