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Beginner’s Guide to H-1B Success

Table of Contents

The H-1B is a non-immigrant visa that allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as science, engineering and information technology, and fields such as teaching and accounting.

1. What is the H-1B lottery? a.k.a quota a.k.a H-1B Cap?

The H-1B visa has an annual limit or “cap” of 85,000 visas each fiscal year. Particularly, 20,000 of the visas are reserved for beneficiaries with a U.S. master’s degree or higher. The other 65,000 are for those with a bachelor’s degree or equivalent. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap. The start date of employment for H-1B cap cases is October 1st.

An individual with H-1B status must be employed by their employer in order to stay in the United States. If for any reason, the person employment ends, then the individual must leave the country immediately. Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position.

2. What is the maximum duration of stay on H-1B?

An H-1B nonimmigrant may be admitted for a period of up to three years. This period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21) – when a beneficiary has an approved I-140 or a PERM filed with DOL for a period of over 12 months.

3. What is the H-1B process?

To begin the process, the petitioner must file a Labor Condition Application (LCA), form ETA-9035E, electronically through the Department of Labor’s (DOL) FLAG portal system. The LCA must be certified by FLAG and filed with the H-1B petition. The Form I-129 must be filed by a U.S employer. The file must be filed at a USCIS service center that has jurisdiction. The petition may request a change for the beneficiary’s status to H, if the beneficiary is legally in the United Status with another nonimmigrant status. The petition also may notify USCIS to notify a U.S consular post of approval for the petition if the foreign national is or will be in the United States.  In both cases, the USCIS will approve the petition by issuing a Form I-797, Notice of Action. If the Beneficiary is in the United States and a change or extension of status is granted, USCIS will issue a Form1-797A with a tear off I-94 card that indicates the new status. If the Beneficiary is outside the United States, USCIS will issue a Form I-797B for consular processing.

It is important to understand the difference between a visa and status. A visa is a stamp in one’s passport which gives the foreign national the right to appear at a port of entry to apply for admission to the united states.  The visa is issued at a U.S consulate abroad. Most foreign nationals require a visa.  On the other hand, status is indicated by the I-94, set the terms for a foreigner’s presence in the United States

4. Can I utilize premium processing?

Generally YES! Read more about premium processing here.

5. H-1B Consular Processing

If the beneficiary is outside the United Sates at the time of approval, the individual will apply for the H visa at a U.S Consulate. The consulate will access the details of the petition through the Petition Information Management Service (PIMS) However, many consulates require the presentation of the original form I-797 approval notice with any required documents showing eligibility for a visa. The beneficiary will also be required to submit the electronic Form DS-160 and Nonimmigrant Visa Application. The consulate may then issue a visa that is valid for the duration of the petition, or request additional information from the beneficiary or further investigate the case by issuing form 221(g). The beneficiary can only enter the U.S. once the visa is issued, and only for the validity period of the visa.

6. H-1B Change of Status or Extension (Important for Students from from F-1 to H-1B)

If the beneficiary is in the U.S., the procedure is different. In this scenario, the I-94 is issued as part of the Form I-797A approval notice and is generally issued for the status and duration requested on the petition unless evidence submitted with the petition shows specialty occupation is only available for a shorter period of time. The I-94 will show that beneficiary is permitted to work in the United States. When a change in status occurs, the foreign national does not need to obtain the H stamp in passport until the individual departs the United States. If the beneficiary departs the U.S. while a change of status request is pending, then such request is considered abandoned, and the petition will be converted to a consular processing petition.

The H-1B visa is a dual intent visa. This means that beneficiaries have the right to work in the United States as a nonimmigrant but at the same time seek lawful permanent resident status.

7. What are the H-1B Requirements?

The key issues in determining eligibility for H-1B classification is whether the position is a specialty occupation and whether the beneficiary meet the requirements for the specialty occupation.

Specialty Occupation is an “occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or high degree in the specific specialty (or its equivalent as a minimum for entry into the occupation in the United States.”

For a job to qualify as specialty occupation, one or more of the following requirements must be met.

  1. A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.

  2. The degree requirement is common to the industry, or, in the alternative, the 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

  4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelors or higher degree

8. Who is eligible?

There are three types of individuals who may have petitions filed on their behalf under the H-1B category.

  1. Specialty Occupations. Typically, companies file for individuals to come to the United States to perform services in specialty occupations. These positions normally require bachelor’s degrees (or higher), or the equivalent, in a specialty field.

  2. Department of Defense Cooperative Research and Development Projects. Individuals who will be engaged in cooperative research and development projects administered by the U.S. Department of Defense are eligible.

  3. Fashion Models. Individuals who are fashion models of distinguished merit and ability are eligible.

9. How to Apply

  • The H-1B requires you to have a petitioner employer. A Petitioner is a U. S based company that will sponsor your H-1B application.

  • Employer Submits LCA  to DOL for certification. The employer must apply for and receive DOL certification of an LCA.

  • Employer Submits Completed Form I-129 to USCIS. The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center.

  • Prospective Workers inside the United States applying for Change of Status will have the H-1B effective on the start date.

  • Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.

10. Additional Resources

Ensuring complete documentation, proper filing, and payment fees can be daunting. To be approved for an H-1B visa, you must make sure that all required documents are filled out properly and filed on time. There are also new regulations that might be confusing for those not familiar with immigration law. So it’s always best to work with an immigration attorney who can assess your situation and ensure that your petition is filed properly.

Consult with an H-1B visa lawyer who has extensive knowledge of immigration laws, particularly in business and employment immigration. At Ramchand & Raval, our immgration lawyers have the expertise guide you through the H-1B process.

Get professional advice. Schedule a consultation with an H-1B visa lawyer now.

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