The H-1B visa

The H-1B visa

There are two (2) main categories of immigration into the United States: family-based immigration and business-based immigration.  Business-based immigration is dependent upon business needs and relationships.  The H-1B visa is the most recognized nonimmigrant visa for employment-based immigration. 

What is the H-1B visa?  It is a visa meant for a specialty occupation, which is defined as an occupation that requires the: 1) theoretical and practical application of a body of highly specialized knowledge, and 2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.  Further regulations describe the H-1B visa as one which requires the theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.  To qualify for an H-1B visa, the job must be in a specialty occupation, and the beneficiary of the visa must possess at least a U.S. bachelor’s degree or its equivalent in the area of the specialty occupation.

The H-1B lottery

The H-1B visa is generally subject to an annual CAP.  Every year, 85,000 new H-1B visas are authorized by Congress.  20,000 visas are issued under the “Master’s CAP,” where beneficiaries must possess a masters or doctorate degree from a U.S. college or university.  The college or university must be accredited and not-for-profit. The remaining 65,000 visas are issued under the “Regular CAP,” awarded to a beneficiary who simply meets the requirements of an H-1B visa.  Historically, more H-1B CAP petitions have been filed than the available visas for that year, so the H-1B CAP is typically conducted as a lottery.  For the 5^th year, United States Citizenship and Immigration Services (USCIS) has simplified the H-1B CAP lottery.  Rather than requiring a full H-1B petition to be filed on April 1 to qualify for the lottery, USCIS has now implemented a registration system.  Names of individuals, along with some other personal information, are entered into the USCIS registration system during March (exact dates determined annually by USCIS), and USCIS conducts the lottery by the end of March.  For any registrants chosen in the lottery, the petitioning company has 90 days to file a full H-1B petition with USCIS, requesting H-1B status effective October 1 of that year.  The visa may be requested for a three (3) year duration.

H-1B duration

Once a beneficiary is granted H-1B status, s/he is allowed 6 years in the U.S. on H-1B status.  The H-1B can be transferred to another employer for another specialty occupation position by filing an H-1B transfer petition.  If a beneficiary has reached a certain point in pursuing an employment-based green card (an approved I-140 Immigrant Petition), s/he is eligible to extend her/his H-1B status beyond 6 years.  Otherwise, s/he needs to leave the U.S. for at least 1 year and then reapply under the H-1B CAP.

How to file an H-1B petition

The first step in filing an H-1B petition is filing a Labor Condition Application (“LCA”) with the Department of Labor (“DOL”).  The LCA requires information on the job title, job code (SOC code), job level, and job location.  Based upon the job duties and job location, a minimum wage level must be met, known as the Prevailing Wage (PW).  The DOL publishes the Foreign Labor Certification Data Center which is updated annually on July 1.  The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.  To file an H-1B petition, the employer must meet or exceed this prevailing wage.  The LCA gets certified by the DOL in 7 business days.  Once the LCA is certified, the full H-1B petition can be filed with USCIS.

In some instances, an already-approved H-1B petition may need to be “amended” by filing a new LCA and a new H-1B petition with USCIS.  This is required when 1) a change in the place of employment of a beneficiary requires the filing of a new LCA (i.e., a job location outside the original area of intended employment); and 2) when there is a material change in the terms and conditions of employment, such as a material change in job duties.  If an H-1B amendment is required, the amendment must be filed with USCIS before the beneficiary may work at the new job location or under the new terms and conditions of employment.

Intent of H-1B visa

An H-1B visa is a dual-intent visa.  This means that foreign nationals may be temporarily present in the United States under a nonimmigrant visa (like the H-1B) while retaining the option of possibly immigrating to the U.S. permanently by filing a green card application.

Dependents of the H-1B worker

Dependents of an H-1B worker can come to the U.S. on an H-4 visa.  The dependents may extend their H-4 visas as long as their spouse/parent remains in H-1B status.  However, an H-4 dependent spouse cannot work in the U.S. unless the H-1B spouse possesses an approved I-140 Immigrant Petition.

Conclusion

Businesses that want to bring foreign workers into the United States have several visa options.  The most common visa is the H-1B visa, though there are also some less-used, specialty visa options.  The regulations pertaining to these visas are complex and the documentation required is sizable.

This article is not to be used for legal advice.  The guidelines listed in this article are general; each beneficiary’s particular case has its own set of facts which may require a different process than what is outlined above.  Therefore, it is highly encouraged to discuss your specific needs with an attorney specializing in U.S. business-based immigration laws.