What is the H-1B Visa

H-1B Visa Process

The h1b visa is a non-immigrant visa that permits US organizations to employ professional level workers in an area of expertise that requires technical or theoretical expertise in specialized fields such as medicine, science, mathematics, engineering, architecture, accounting, finance, IT, etc.

The United States employer may petition USCIS for the H-1B visa which has a normal duration of up to six years. It can be extended in certain cases if a green card petition is pending.

H-1B Cap / Quota

There is a cap of 65,000 H-1B visas issued each fiscal year. 20,000 petitions filed for persons with a U.S. master’s degree or higher are in addition to the 65,000 cap.

Workers employed at government research organizations, institute of higher education, or a nonprofit research organization may be exempt from the cap.

It is critical to plan in advance if you will be filing for H-1B visa that is subject to the fiscal H-1B cap. The USCIS fiscal year begins each Oct. 1.

H1b visa petitions may be filled up to six months before the begin date, which is April 1 for an October 1 start date date.

H-1B Visa Application – How to Apply

  1. Make sure Position is a Specialty Occupation
  2. Make sure Salary Offered is equal to or above the Prevailing Wage
  3. File and receive Certified LCA
  4. Prepare USCIS Form I-129
  5. Collect Required Supporting Documents
  6. File H-1B Petition with USCIS
  7. Receive I-797C Receipt Notice
  8. Receive I-797A Approval Notice

 

 H-1B Visa Requirements
 Employer / Employee relationship

In order to receive an h1b approval from USCIS the petitioner (employer) must be able to prove that they have the authority to hire, fire, and supervise the foreign national worker (beneficiary).

Specialty Occupation – Must meet one of the following criteria:

The nature of the exact duties is so specialized and complex that the knowledge needed to perform the duties is generally linked with the attainment of a bachelor’s or higher degree in a field related to the offered position;

The employer requires a bachelor’s or higher degree in order to perform the work;

The degree required is a generally accepted minimum requirement for this work in the industry, or the work is so complex or need that it can only be done by someone with at least a bachelor’s degree in a field matched to the position; or

A bachelor’s degree or higher degree or its equivalent is generally the minimum required for the particular work.

The Specialty Occupation position must be in a specialty occupation matched to the worker’s field of study.

H-1B Visa Transfer

Any H1B visa holder can now successfully transfer their visa and begin working for a new employer of their choice once their H1B transfer petition is submitted to the USCIS. This is done by their new employer or company on behalf of the visa holder. The application can be done at any time, and as the beneficiary does not have to wait for the transfer approval to be issued by USCIS before starting work with the new employer. H1B transfers are also unlimited and do not count towards the regular H1B quota. Employers can thus file at any time of the year.

The transfer bill, (bill S.2045) that was approved in both the Senate and the House has opened up a whole new realm of possibilities for H1B Visa holders.  The bill has rules that allow any valid H1B holder to change jobs as soon as their new employer has filled out a new petition. There are however two main restrictions to this. The first is that the individual holding the visa is in lawful status at the point in time when the petition is being filled. The second is that the visa holder has not engaged in any form of unauthorized employment since they were last lawfully admitted.

Under the H1B portability rules stated in AC21, an H1B visa holder may transfer to a new H1B job with a different employer only if the new US employer follows the stated rules and procedures of filing an H1B visa transfer application on their behalf. If you are a qualifying worker and your petition has been filed, then you can begin working for your new employer upon receipt of the petition by USCIS. It is sometimes, however, advisable to wait for the approval from USCIS before transferring. In case your H1B visa is denied, you have to immediately stop working for the new employer.

Important points to note before filing for an H1B Transfer:

You are required to be employed in H-1B status on the date that the USCIS receives your transfer petition from the new employer.

You can only start working for the new employer after the USCIS receives the I-129 H-1B Transfer petition.

Premium processing should be considered for anyone with a gap in their employment history

A bona fide unpaid leave of absence letter or any relevant document can be submitted in the place of a paystub.

Document required for the H1B Transfer request:

From the Employer:

A detailed job description

A copy of the job offer letter signed by the employer and potential employee

Marketing material for the company or their brochure

A copy of the annual report or financial statement or business plan.

A copy of Articles of Incorporation, if available.

From the Foreign National:

Copies of your I-94’s, visas and I-797 approval notice(s)

Copy of university credentials or diplomas

University transcripts for any and all degrees

A copy of the academic evaluation of your foreign degree, if one is available

Copy of letters of experience from the previous employers

Your resume

A letter from an employer as proof of employment or 3 of your most recent paychecks or an unpaid leave of absence letter

H-1B Visa Renewal Extension

Normal circumstances allow for a foreign national to obtain an H1B visa with a 3-year validity period. You can apply for an extension on your H1B visa for up to 6 years. Employers can however only apply for a maximum of 3 years on any H1B visa petition at a time.

What are the requirements for an H1B visa extension past 6 years?

If you are an H1B visa holder that has had a PERM petition pending for over 356 days you may have the opportunity to extend your H1B visa beyond the limit of 6-years, but only in one-year increments. This can be done until the point in time when a final decision is made on the pending PERM case.

If you are an H1B visa holder that has an approved I-140 petition and your priority date is not current you are eligible for an extension of your H-1B status for up to 3 years.

The H1B Renewal Process:

1-year H1B Extension – This can occur if the PERM petition or the I-140 was filed 365 days before the 6-year expiration date.

3-year H1B Extension – occurs if the foreign national has an approved I-140 petition for the EB-1, EB-2 or EB-3 employment-based green card classifications and the immigrant visa number is unavailable.

“Recapture” Time – The foreign professional may request an H1B extension if he/she traveled outside the United States during the validity of the visa. The applicant is obligated to submit U.S. entry and return dates, I-94 copies, and related stamps.

H1B Extension Documents:

Valid U.S. passport with the original H1B visa,

The I-797 approval noticed issued by the USCIS

I-94 Arrival/Departure form with a non-expired departure date.

Your resume

Evidence of employment through a letter from the employer or 3 recent paychecks or a leave of absence letter

University transcript and relevant degree or higher qualification

Academic evaluation

Copies of most recent paychecks

The request for extension can be submitted up to 6 months before the H1B expiration date.

Timely filing of the extension legally allows the foreign national a period of 240 days beyond the due date of their H1B visa to continue working for their current employer.

H-1B Visa Premium Processing

As the name implies, premium processing offers a quicker processing time for your H1B Visa petition. The U.S. Citizenship and Immigration Service (USCIS) promises that it will process the H1B visa petition within fifteen (15) days under this service. There is a $1,225 fee that must be made payable to Department of Homeland Security for this service.

How to file a request for Premium processing service?

USCIS Form 1-907 Form must be prepared and filed with USCIS.

1-907 Form may only be filed by the petitioner (Employer, Organization, Company) or the lawyer/attorney of the petitioner.

The I-907 may be filed with the initial H-1B filing, or with the I-797 filing receipt number.

Will premium processing raise the chances of making the H-1B quota?

No. USCIS has stated that quota petitions are decided by a random lottery and a premium processing petition has the same chance of being accepted as a regular petition.

Will the USCIS waive the $1,255 fee under unique circumstances?

No, the $1,255 fee is fixed and cannot be claimed for any reason. Anyway, if the USCIS is unable to finish the processing within fifteen days, the full fee will be refunded.

15-day calendar period

Premium processing starts on the day the USCIS physically receives and accepts the I-907 and ends the day that the service issues a request or notice. If the USCIS does not issue request or notice under fifteen calendar days, the visa fee will be returned, but the case will carry on to be handled as general.