H-1B Visa
Temporary Work Visa for Professionals
Overview
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H-1B visas are most commonly used temporary work visas. H-1Bs are often used to hire foreign nationals in “specialty occupations.” Certain fashion models and persons working in a cooperative
research and development project with the U.S. Department of Defense may also
qualify for H-1B visas. H-1B visas can be used for full-time or part-time employment. Concurrent employment with different employers is allowed provided that each employer files a separate H-1B visa petition.
H-1B visa is employer-specific, thus an H-1B worker may only work for the employer who filed an H-1B visa petition on his or her behalf. To employ an H-1B worker, the employer must first obtain a Labor Condition Certification (LCA) from the Department of Labor, then file an I-129 Petition for Non-immigrant Worker with the U.S. Citizenship and Immigration Services (USCIS). The process may take anywhere between 2 weeks, with a request for expedited processing, and 4 months. Upon approval of the H-1B visa petition, the foreign national may apply for an H-1B visa stamp at a U.S consulate abroad. Dependents of H-1B workers are issued H-4 visas. H-4 visa holders are not authorized to work in the United States. |
Numerical Cap and Exemptions
H-1B Cap - 85,000 per Fiscal Year
A total of 85,000 H-1B visas are available in a fiscal year (October 1 through September 30). 20,000 H-1B visas are reserved for foreign nationals with Master’s or higher degrees from U.S. universities ("Master's Cap"). Additional 65,000 for H-1B visas are available ("Regular Cap"), of which up to 6,800 may be issued to nationals of Chile and Singapore.
Employers may file H-1B petitions with the USCIS up to 6 months before the employment start date. Cap-subject H-1B petitions for the new fiscal year starting on October 1 can be filed as early as April 1. In recent years, H-1B cap was reached within weeks from April 1. This resulted in a long “blackout” period where employers cannot file new cap-subject H-1B petitions for months. Employers are thus strongly encouraged to file cap-subject H-1B petitions during the first week of April. The USCIS announced that the H-1B cap for FY 2015 was reached on April 7, 2014. The USCIS continues to accept cap-exempt H-1B petitions described below.
H-1B Cap Exemptions
Certain H-1B visa petitions are exempt from the annual numerical cap.
A total of 85,000 H-1B visas are available in a fiscal year (October 1 through September 30). 20,000 H-1B visas are reserved for foreign nationals with Master’s or higher degrees from U.S. universities ("Master's Cap"). Additional 65,000 for H-1B visas are available ("Regular Cap"), of which up to 6,800 may be issued to nationals of Chile and Singapore.
Employers may file H-1B petitions with the USCIS up to 6 months before the employment start date. Cap-subject H-1B petitions for the new fiscal year starting on October 1 can be filed as early as April 1. In recent years, H-1B cap was reached within weeks from April 1. This resulted in a long “blackout” period where employers cannot file new cap-subject H-1B petitions for months. Employers are thus strongly encouraged to file cap-subject H-1B petitions during the first week of April. The USCIS announced that the H-1B cap for FY 2015 was reached on April 7, 2014. The USCIS continues to accept cap-exempt H-1B petitions described below.
H-1B Cap Exemptions
Certain H-1B visa petitions are exempt from the annual numerical cap.
- H-1B petition to extend, amend or change employer on behalf of a worker who has been counted against the H-1B cap in the past 6 years.
- H-1B visa petition filed on behalf of a J-1 physician who obtained a waiver of 2-year home residence requirement based on the State 30 program or federal program.
- The H-1B employer is one of the following “cap-exempt organizations”: an institution of higher education; a non-profit entity related to or affiliated with an institution of higher education; or non-profit research or government research organization. (See examples below.)
- The H-1B employer does not qualify as a cap-exempt organization, but the primary work location is at a cap-exempt organization provided that there is a nexus between the work performed and the general purpose of the organization. (See examples below. )
- Concurrent H-1B employment with cap-exempt and nonexempt employers.
Examples of Cap-Exempt H-1B Visa Petitions
Organization A is a non-profit organization in Virginia. It has received a 501(c)(3) designation from the IRS. The organization’s primary objective is to gather information and disseminate its findings on women’s reproductive rights. Organization A files an H-1B visa petition for one of its research associates.
Note: Not all non-profits or governmental institutions are exempt from the H-1B cap. In order to qualify as a cap-exempt organization, the primary mission of the non-profit or government organization must be to conduct basic or applied research.
Company B, a for-profit consultant firm that would not otherwise be a cap-exempt institution, files an H-1B petition on behalf of an employee working directly for the firm. The employee will work on-site at a government research institution pursuant to a joint-agreement between two entities. He will be work on a research project and perform duties similar to those performed by actual employees of the government research organization in furtherance of its mission.
A medical fellow in oncology has been employed by a qualifying university medical center for 2 years in H-1B status. At the end of the fellowship, the doctor receives a job offer by a Company C, a private medical practice group, to do exactly the same work that he did during his fellowship at the same university medical center. Company C has primary offices within the university medical center and predominantly trains medical students and treat patients. Company C files an H-1B petition on behalf of the doctor.
Changing the Employer:H-1B Portability
A person in H-1B status who seeks to change the employer may begin working for the new employer as soon as the new employer files the H-1B visa petition with the USCIS. The H-1B worker does not need to wait for the approval of new H-1B petition before switching his/her employer.
Maximum Period of Stay – 6 Years
An H-1B visa petition may be approved for up to 3 years. It can be renewed for additional 3 years, allowing an H-1B worker to stay in the United States for the maximum period of 6 years. An H-1B worker may enter the U.S. up to 10 days before the H-1B start date and remain lawfully in the U.S. up to 10 days after completing the H-1B employment. Moreover, after an H-1B worker resides outside the United States for one year, he or she is eligible for a new 6-year period in H-1B status. Note the following when calculating the remaining H-1B period in the United States.
- Time spent in L visa status is counted towards the H-1B 6-year limit.
- Time spent in H-4 status is not counted towards the 6-year limit.
- Time spent outside the U.S. is subtracted from the 6-year limit, which can be later re-captured. For example, an H-1B worker who travels abroad for 30 days on vacation can later add back 30 days to ensure that he spends full 6 years in the United States.
- The 6-year limit does not apply to H-1Bs who spend less than 6 months per year in the United States.
H-1B Extension beyond 6 Years
Since many employers end up sponsoring their H-1B workers for legal permanent residency (“green card”), the American Competitiveness in the Twenty-First Century Act (“AC21”) allows extension of H-1B beyond the 6-year limit for those who began the green card process. Two types of H-1B extension are available under the AC 21.
- H-1B Extension in One-Year Increment — available when an application for labor certification, I-140 petition or employment-based adjustment of status (I-485) application is filed at least 365 days before the H-1B worker exhausts the 6-year maximum period of stay.
- H-1B Extension in Three-Year Increment — available where a person with an approved I-140 petition cannot apply for adjustment of status (I-485) or immigrant visa due to the per country limitation on visa numbers. For example, an Indian national with an approved I-140 petition in the EB-3 category can extend her H-1B in 3-year increment beyond 6 years until her priority date becomes current in the Department of State’s Visa Bulletin.
“Cap-Gap” Extension for F-1 Students
Certain F-1 students with a pending cap-subject H-1B visa petition are eligible for the H-1B “cap-gap” extension. The H-1B “cap-gap” extension bridges the gap between the H-1B employment start date and the end of F-1 status, allowing F-1 students to remain and work in the Untied States until October 1. In order to be eligible for this extension, the H-1B petition must contain a request for a change of status from F-1 to H-1B. Moreover, the F-1 student must be in lawful status when the H-1B visa petition is filed on his/her behalf. The type of “cap-gap” extensions available depends on when the cap-subject H-1B petition is filed.
If the timely filed H-1B visa petition is denied, withdrawn, or is not selected during the H-1B random selection process, the F-1 student may remain in the United States for 60 days from the date of the rejection notice or the OPT end date, whichever is later.
Travel During the Cap Gap Extension Period
If an F-1 student travels abroad during the “cap-gap” extension period, he or she will not be able to return to the U.S. in F-1 status. The student must first apply for an H-1B visa at a U.S. Consular post abroad. After obtaining the H-1B visa, he or she may enter the U.S. as early as September 20, 10 days prior to the H-1B employment start date.
- H-1B visa petition is filed during the F-1 Optional Practical Training (OPT) period — F-1 status and OPT work authorization are both automatically extended until the H-1B employment start date. The student will receive a new Form I-20, but the Employment Authorization Document (EAD) will not be renewed. The student may continue to work with a newly issued Form I-20 and the expired EAD during the “cap-gap” period, through September 30.
- H-1B visa petition is filed within 60 days after the completion of F-1 OPT — Only F-1 status is extended without employment authorization. The F-1 student may lawfully remain in the U.S. but may not engage in employment until October 1.
If the timely filed H-1B visa petition is denied, withdrawn, or is not selected during the H-1B random selection process, the F-1 student may remain in the United States for 60 days from the date of the rejection notice or the OPT end date, whichever is later.
Travel During the Cap Gap Extension Period
If an F-1 student travels abroad during the “cap-gap” extension period, he or she will not be able to return to the U.S. in F-1 status. The student must first apply for an H-1B visa at a U.S. Consular post abroad. After obtaining the H-1B visa, he or she may enter the U.S. as early as September 20, 10 days prior to the H-1B employment start date.
Basic Requirements for Specialty Occupation H-1B
A. Requirements for the Position Offered
The position offered to the foreign national must qualify as a “specialty occupation.” Essentially, a “specialty occupation” means a position that normally requires at least a bachelor’s or higher degree or its equivalent in a specialized field. In determining whether a particular position qualifies as a specialty occupation, the USCIS examines the following factors:
Many professional level positions qualify as H-1B specialty occupations. On the other hand, positions that are administrative or clerical in nature do not qualify because a bachelor’s degree or equivalent is not generally required for such positions. Examples of H-1B specialty occupations include: Accountant, Acupuncturist, Architect, Chiropractor, Computer Programmer, Database Administrator, Dietitian, Electronics Specialist, Engineers, Financial Analyst, Graphic Designer, Human Resource Manager, Industrial Designer, Investment Analyst, Journalist, Librarian, Market Research Analyst, Medical Technologist, Orthopedist, Personal Financial Advisor, Pharmacist, Systems Analyst, Teacher (Public and Secondary) and Technical Writer/Editor.
B. Requirements for the Foreign National
The foreign national seeking to obtain H-1B status must meet requirements for the position offered. He or she must possess the required degree or its equivalent, and where applicable, work experience and licenses necessary to perform job duties. If the foreign national does not possess the required degree, his or her education, specialized training and/or progressively responsible work experience may be used to establish the equivalence of the required degree. The H-1B regulations provide the “three-to-one” formula, in which 3 years of work experience are considered equivalent to 1 year of university level studies. For example, a person with a 2-year associate degree may qualify for H-1B if he or she has at least 6 years of progressively responsible work experience related to the job offered.
C. Requirements for the Employer
Any U.S. employer with an IRS Tax ID number (FEIN) may file an H-1B visa petition on behalf of a foreign national. However, a valid employer-employee relationship must exist between the H-1B worker and the employer, whereby the employer controls the work of the H-1B employee. The owner of a sole proprietorship cannot file an H-1B visa petition for him/herself since there is no distinction between the employer and employee. Similarly, H-1B visa petition cannot be filed for independent contractors since no particular employer controls their work. There is no requirement for the size of the employer or the nature of the employer’s business activities. However, the USCIS often looks at such factors to determine whether the employer has a legitimate need for an H-1B professional.
The basic obligations of an H-1B employer are as follows:
The employer is subject to additional attestation requirements if it is considered "H-1B dependent" or "willful violator" of the H-1B program. Moreover, if the employer has 50 or more employees in the U.S. and more than 50% of its workforce is on H-1B or L-1 status, the employer must pay additional $2,000 in the government fee for each H-1B petition filed for a new employee.
The position offered to the foreign national must qualify as a “specialty occupation.” Essentially, a “specialty occupation” means a position that normally requires at least a bachelor’s or higher degree or its equivalent in a specialized field. In determining whether a particular position qualifies as a specialty occupation, the USCIS examines the following factors:
- The actual minimum requirement for the position offered—Does the entry into the position require a bachelor’s or higher degree or its equivalent?
- Industry standard—Is the degree requirement an industry standard for the parallel positions among similar organizations?
- Employer’s standard practices—Does the employer normally require a bachelor’s or higher degree for the position offered?
- Complexity of job duties— Are the job duties specialized or complex enough to require the level of knowledge that may be obtained through a bachelor’s or higher degree in a specialized field?
Many professional level positions qualify as H-1B specialty occupations. On the other hand, positions that are administrative or clerical in nature do not qualify because a bachelor’s degree or equivalent is not generally required for such positions. Examples of H-1B specialty occupations include: Accountant, Acupuncturist, Architect, Chiropractor, Computer Programmer, Database Administrator, Dietitian, Electronics Specialist, Engineers, Financial Analyst, Graphic Designer, Human Resource Manager, Industrial Designer, Investment Analyst, Journalist, Librarian, Market Research Analyst, Medical Technologist, Orthopedist, Personal Financial Advisor, Pharmacist, Systems Analyst, Teacher (Public and Secondary) and Technical Writer/Editor.
B. Requirements for the Foreign National
The foreign national seeking to obtain H-1B status must meet requirements for the position offered. He or she must possess the required degree or its equivalent, and where applicable, work experience and licenses necessary to perform job duties. If the foreign national does not possess the required degree, his or her education, specialized training and/or progressively responsible work experience may be used to establish the equivalence of the required degree. The H-1B regulations provide the “three-to-one” formula, in which 3 years of work experience are considered equivalent to 1 year of university level studies. For example, a person with a 2-year associate degree may qualify for H-1B if he or she has at least 6 years of progressively responsible work experience related to the job offered.
C. Requirements for the Employer
Any U.S. employer with an IRS Tax ID number (FEIN) may file an H-1B visa petition on behalf of a foreign national. However, a valid employer-employee relationship must exist between the H-1B worker and the employer, whereby the employer controls the work of the H-1B employee. The owner of a sole proprietorship cannot file an H-1B visa petition for him/herself since there is no distinction between the employer and employee. Similarly, H-1B visa petition cannot be filed for independent contractors since no particular employer controls their work. There is no requirement for the size of the employer or the nature of the employer’s business activities. However, the USCIS often looks at such factors to determine whether the employer has a legitimate need for an H-1B professional.
The basic obligations of an H-1B employer are as follows:
- Pay the higher of the prevailing wage or the actual wage paid to similarly employed workers.
- Certify that the H-1B employment does not result in the release of technology or technical data controlled by the Export Administration Act (EAR) and International Traffic in Arms Regulations (ITAR).
- Provide the reasonable cost of return transportation to the H-1B worker’s home country if the employer decides to terminate the employment of the H-1B worker. (This obligation is not applicable where the H-1B worker resigns or otherwise voluntarily leaves the employment.)
- Post a notice informing employees of its intent to hire an H-1B worker within 30 days before filing a Labor Condition Application (LCA).
- Maintain a public access file containing the following: a copy of certified LCA; documentation regarding the salary and benefits provided to the H-1B worker, including the prevailing wage information; copy of the LCA notice posted; and evidence that a copy of the LCA was given to the H-1B worker.
- File an amended petition where there is a significant change in employment conditions of the H-1B worker.
The employer is subject to additional attestation requirements if it is considered "H-1B dependent" or "willful violator" of the H-1B program. Moreover, if the employer has 50 or more employees in the U.S. and more than 50% of its workforce is on H-1B or L-1 status, the employer must pay additional $2,000 in the government fee for each H-1B petition filed for a new employee.
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