H-1B PROFESSIONAL VISA

Overview

The H-1B visa category is one that allows certain foreign professionals to work temporarily for a United States company in the United States. The fundamental requirements for these positions are that the candidate possess the equivalent of at least a U.S. Bachelors Degree, as well as experience relevant to the position for which approval is sought.

New H-1B visas are subject to annual limits per fiscal year. Currently the annual limit is 65,000 per year with an additional 20,000 available to H-1B applicants holding U.S. advanced degrees. After the limit is reached, a candidate must wait until at least the beginning of the USCIS’ fiscal year (October 1) to obtain H-1B status and start work. Due to the cap, employers often need to accelerate their H-1B process, to file as early as allowed (April 1) for the next fiscal year. Certain educational institutions and nonprofit or government research organizations are exempt from the cap. Special cap number allocations are also available to H-1B nonimmigrants who are nationals of Chile or Singapore pursuant to special Free Trade Agreements, although the H-1B duration is limited to only one year (renewable).

A foreign worker may qualify for the H-1B visa if:

  1. The job is a “specialty occupation”. A specialty occupation is one requiring:
    • A theoretical and practical application of a body of highly specialized knowledge; AND
    • Attainment of a bachelor’s or higher degree (OR ITS EQUIVALENT) as a minimum for entry into the occupation in the U.S.
  2. The worker is a “professional worker”. A professional worker
  3. The employer pays either the “prevailing wage” – the amount determined by either federal or state agencies or an independent authoritative source should be paid to all employees in the same occupation in the same geographic location- OR the “actual wage” the employer pays to other employees similarly employed with similar experience and qualifications.

Note: Under December 2004 legislation, employers are required to pay 100% of the prevailing wage.

In 2000, The American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”) was passed to allow foreign workers to more effectively change jobs, begin employment, and avoid interruption of work. “Portability” is an immigration concept addressed in AC21 whereby an H-1B employee is able to CHANGE H-1B employers and still maintain H-1B status.

What You Must Know about H-1B

“Specialty Occupation” Considerations

The most important factors reviewed by INS, in order of importance regarding whether or not a particular job qualifies as a specialty occupation, are that:

  • A higher degree in a specific field is the entry-level requirement.
  • The degree requirement is accepted throughout the industry in parallel positions among similar companies.
  • Absent such acceptance, the employer can show that the particular position is so complex or unique that a degree is required.
  • The employer’s normal requirement for the position is a degree (that other persons filing parallel positions hold degrees or the prior occupants of the position held degrees).
  • The complexity of the specific job duties is usually associated with attainment of the degree.
  • The level of responsibility and authority involved in the position is usually associated with professional standing- i.e., attainment of a bachelor’s degree.

“3 for 1” Rule and Bachelor’s Degree

The minimum requirement for classification as an H-1B nonimmigrant is that the alien must possess a bachelor’s degree in a field that is related to the specialty occupation. In those situations where the alien does not possess a U.S. degree, USCIS will accept either an equivalent foreign degree or will consider those aliens who possess the equivalent of a bachelor’s degree through a combination of education and/or practical experience. When considering a combination of education and experience, USCIS equates three years of experience as being equivalent to one year of education. This is the “3 for 1” rule and only applies to H-1B issues.

For example, if a prospective employee has a three year Bachelor of Science degree from the University of Madras and three years of full-time software development experience, it is likely that a credential evaluator and USCIS will determine that she has the equivalent of a U.S. bachelor’s degree in computer science from an accredited university or college based on a combination of education and experience.

In most situations where the alien does not possess a U.S. degree, an advisory educational evaluation must be submitted to USCIS with the petition which confirms that the alien has the equivalent of a U.S. degree. Please refer to the current processing times on our main screen for information on processing times.

AC21 & H-1B Portability

On October 17, 2000, the President signed the American Competitiveness in the 21st Century Act of 2000 (“AC-21”), which impacted both H-1B and permanent residency cases. One of the most important benefits AC-21 was the creation of H-1B visa “portability.” AC-21 permits certain individuals originally authorized to perform H-1B employment with one employer to commence H-1B employment with a new employer upon the filing (not approval) of new petition if:

  • they were lawfully admitted into the United States;
  • their employer filed a nonfrivolous H-1B petition for new employment before the expiration date of their authorized period of stay; and
  • subsequent to such lawful admission, were not been employed without authorization in the United States before the filing of such petition.

Extend H-1B Status Beyond 6 Years

President Bush signed into law the 21st Century Department of Justice Appropriations Authorization Act (H.R. 2215) on October 3, 2002. The new law includes a very positive immigration provision that will now permit H-1B visa holders who have long pending labor certification applications to extend their status beyond the six-year limitation.

Recognizing that lengthy processing times by the Department of Labor have precluded some H-1B visa holders from being eligible to apply for a one-year extension of H status pursuant to the American Competitiveness in the 21st Century Act of 2000, this provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the six-year limitation. As long as 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H-1B status can be extended in one-year increments. This will be true even if the alien has since changed his or her status or left the country. If an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the extended H-1B status ends at that point.

Applications of the New H-1B Extension Regulation

  • A traditional Labor Certification (LC) application filed more than a year ago and is still pending: EXTENSION OF H-1B BEYOND 6TH YEAR IS PERMISSABLE;
  • A new Labor Certification filed using RIR Conversion is approved and an immigrant petition based on the new labor certification is approved: EXTENSION OF H-1B BEYSOND 6TH YEAR IS PERMISSABLE IF THE ORIGINAL LC APPLICATION WAS FILED OVER A YEAR AGO

Limitation on Admission or Extension of Stay in H-1B Status: One Year Foreign Residency Abroad

A significant H-1B concept focuses on the fact that an H-1B visa holder may not remain employed in H-1B status if he or she has already been present in the United States continuously in EITHER THE H-1B OR L-1 visa categories for the preceding six (6) years. When the foreign national reaches the six-year limit, he/she MUST RESIDE OUTSIDE THE UNITED STATES FOR A PERIOD OF ONE (1) YEAR BEFORE HE/SHE CAN REENTER THE UNITED STATES IN EITHER THE H-1B OR L-1 VISA CATEGORY. Bear in mind, however, that if 365 days have elapsed since the filing of a NONFRIVOLOUS labor certification application (that is filed on behalf of or used by the alien) or a NONFRIVOLOUS immigrant visa petition, H-1B status can be extended in one-year increments. Consequently, if the alien is granted Permanent Residence status, then he/she would presumably need not worry about the H-1B/L-1 residency abroad requirement.

Employer Must Pay for Travel Costs Upon dismissal During H-1B Period

If an H-1B employee is dismissed before the end of the period of his/her authorized stay, the employer is liable for the reasonable costs of return transportation of the former employee back to his/her last place of foreign residence.

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