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Who is Eligible?
The Employer will file the H1b on behalf of the foreign national worker. It is essential that the applicant worker have an employer willing to file a petition on his/her behalf.
Generally, the Immigration Department considers Professional positions those that require at least a Bachelors or its equivalent to perform. As such, applicants must show that they have at least a Bachelors degree or a combination of work and experience to be considered equivalent to a Bachelors degree. The position itself must also require a Bachelors degree to be eligible for the H1B visa.
One of the most important parts of an H-1B case is documenting the alien’s education and/or experience. If the foreign national did not attend school in the US, their degree must be evaluated by a credentials evaluation service to ensure it is at least equal to a US bachelor’s degree. While possession of a degree is the most common way of establishing a person’s ability to work in a specialty occupation, a degree is not required to obtain an H-1B visa. The applicant can demonstrate through work experience or a combination of education and experience that they have the equivalent of a bachelor’s degree. Under USCIS rules, three years of work experience is equal to one year in college.
The H-1B nonimmigrant visa may be issued to individuals who seek temporary entry in a specialty occupation as a professional. There are a maximum of 65,000 H-1B visas issued per year for all professionals. An Additional 20,000 H1b visas area allotted to those who qualify as a specialty occupation, the position must require at least a bachelor’s degree or its equivalent, nationals of Singapore and Chile draw from a separate cap of 6,800 (5,400 for Singapore and 1,400 for Chile).
Exceptions to the H1b Quota
There are exceptions to the H1B quota such as Persons employed at a university, affiliated non-profit entity, non-profit research organizations, or government research organization; b) Persons who have previously been counted against the H1B quota (a person would only be counted once against the cap unless s/he has a year outside the U.S., thereby resetting the clock on the six-year limit.) c) Physicians who obtained a Conrad 20 waiver of the J-1 two-year home residency requirement; d) Extensions of stay for those already on H1B status; e) H1B amendments with the same employer which are not requesting an extension of stay; f) Change of employers by a person already on H1B status; and f) Persons already engaging in H1B employment who are applying to work concurrently / simultaneously for an additional employer while maintaining their current employent.
Timing on when to file the H1B is critical
At any given time during the year, the H1B quota may be reached. In the event that the quota is full, the applicant must wait for the next fiscal year to file the H1b. The Fiscal year begins October 1 of every year. However, the Immigration Department allows fling as early as April 1 of that same year. It is important to note that if filing for a change of status in the United States, the alien MUST maintain his or her status until October 1 (not April 1) to be eligible for a change of status. There may be exceptions for students.
Changing Employers
Under the AC21 “portability” provision, H-1B workers can begin working for a new employer as soon as the new employer files an H-1B petition for the worker. In the past, the worker had to wait for the petition and not on the ultimate approval.
Duration of Visa
An H-1B is approved by INS for an initial period of up to three years. The maximum term of an H-1B visa is six years, including extensions. An important exception, allows those H1b holders who have a Labor certification applications pending for over 365 days, or have approved immigrant visa petitions to extend past the 6 years limit. There may also be an opportunity to recapture unused initial period time.
Dual Intent Doctrine
One of the things that makes this visa so desirable is that, unlike many other nonimmigrant visa categories, it is a “dual intent” visa. This means that a visa will not be denied simply because an individual has intentions or has applied for permanent residency.
Status of Spouse and Minor Children
A spouse or unmarried child of an H-1B visa holder is entitled to an H-4 visa, and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States.
Premium processing or expedited processing is available for H1B applicants. |
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