H-1B Visa - Weinstock Immigration Lawyers | Expert Advice & Representation in Immigration Law

H-1B VISA

Specialty Occupation Visas for Professional Workers

The H-1B visa is the primary method for bringing professional foreign employees to temporarily work in the United States. This visa is an employer-sponsored process and intended for foreign workers in specialty occupations, i.e., occupations that normally require a bachelor’s degree. H-1B visas are granted for a maximum of six years and typically filed in three-year increments. The spouse and children of an H-1B worker may apply for H-4 visa status. The H-4 dependents may not work in the United States in H-4 status but can study in school without an additional student visa.

The H-1B Visa Cap

There are a limited number of H-1B visas available per each calendar year. The current H-1B visa cap is 85,000 employees in total, 65,000 are allotted for employees with at least a Bachelor’s degree or its equivalent and 20,000 visas are allotted for employees with at least a U.S. Master’s degree.

Congress has not increased the H-1B visa cap in many years, and as a result, the immigration service has received more H-1B petitions than it’s allowed to approve in the past several years. When USCIS receives more petitions than it can approve, petitions are put in an H-1B Visa Lottery, which is a system created to randomly choose which H-1B petitions will be considered. The petitions that were not selected are returned with the filing fees and rejection letter. This does not prevent applicants from applying in a subsequent year or applying in a cap-exempt status, but it does pose additional hardships on H-1B visa applicants and their employers as there is no guarantee their petition will even be considered. Therefore, it is best to consult with a good immigration attorney if you are considering an application for this visa.

Cap-Exempt Employment

Certain employers, such as non-profit research organizations, governmental research organizations, institutes of higher education or certain employers related to these organizations or individuals performing work at the physical locations of these organizations are exempted from the annual cap. In addition, certain physicians who have received J-1 visa waivers based on Conrad 30 are cap-exempt. Applicants who need to extend their H-1B employment or file a new H-1B due to change of employer will be cap-exempt only if their original H-1B visa was counted towards the cap.

If a worker transfers from a cap-exempt position to one that does not qualify for an exemption, the worker will no longer be protected by the cap exemption and must instead be counted against the cap at the time of the transfer. Because the H-1B cap is overly used and there are backlogs in petition processing, it’s very important to have a good immigration lawyer analyze the case carefully to determine if or which other visas might be appropriate or whether a cap-exempt employment is feasible.

The Prevailing Wage Requirement

The employer is the petitioner of the H-1B visa application. The employer has to ensure that the H-1B worker will be paid at least the prevailing wage. The prevailing wage is the wage paid to similarly employed workers in the same geographic area where the H-1B worker will be employed. This is determined by outside wage surveys that the Department of Labor (DOL) and other private companies conduct for each metropolitan area in the U.S. The employer must also ensure that the H-1B worker’s salary is not less than the actual wage. This is the wage that is paid to other employees with similar qualifications. The reason for the wage requirement is to ensure employers will not pay foreign workers less than what the employers pay U.S. workers, driving down the wage of U.S. workers.

The Labor Condition Application

The first step in the H-1B process is the submission of the Labor Condition Application (LCA) with the U.S. Department of Labor. The process takes at least 7 days, and must be filed electronically through the DOL’S iCert portal. The LCA includes a number of attestations the employer must attest to, including attestations regarding the wage it will pay, position, location of employment, where the LCA files will be kept, etc. After the LCA is certified, usually within a week, the employer must assemble and submit their application for the H-1B visa to USCIS.

Specialty Occupation

To qualify as a specialty occupation, the position that is offered to the H-1B worker must require at least a U.S. bachelor’s degree or its equivalent. This can be done in a number of ways, but also has to pass common sense. For example, if a restaurant wants to sponsor a server for an H-1B, requiring a bachelor’s degree for that position would not work. Often USCIS even questions jobs that are clearly specialty occupations, so the standard is rather high. New occupations and unconventional occupations are less likely to be approved.

In addition to proving that the position is in a specialty occupation, the application must demonstrate that the worker has the necessary educational or professional background to perform the job duties. A foreign worker’s education must be equivalent to a U.S. bachelor’s degree and this is determined by course credits. For example, most 3-year Bachelor of Commerce degrees from India are not considered equivalent to U.S. bachelor’s but only 3 years of college, whereas a 3-year undergraduate degree from the United Kingdom is generally deemed equivalent.

If the worker does not have a bachelor’s degree in a field related to the position, he or she can still fulfill this requirement through work experience or a combination of education and experience. The formula used by USCIS indicates that three years of documented related work experience are equivalent to one year of college studies. However, the work experience must be professional and progressive in order to qualify. For example, someone without a college degree will require 12 years of experience, while another with a 3-year Indian Bachelor of Commerce degree will require 3 years of related experience to meet this criterion.

H-1B Extensions beyond 6 Years

While the H-1B visa has a maximum of 6 years of stay in the U.S., a law called AC21 allows people who are on their way to permanent residency or green card to file extensions of their H-1B visa if they have started the green card process on time. To qualify for extensions of H-1B beyond the 6th year, you need to prove that you either have a pending PERM labor certification or have filed an I-140 immigrant visa petition at least 1 year prior. If you have an approved I-140 immigrant visa petition but cannot file for a green card because of backlog in processing, an H-1B extension can also be approved.

If you have any questions about yours or your employee’s eligibility for an H-1B visa, schedule a consultation with one of our legal experts. We can determine the best strategy for your case and help you avoid common issues that can lead to delays and denials.

WEINSTOCK IMMIGRATION LAWYERS

1827 Independence Square
Atlanta, GA 30338
info@visa-pros.com

770-913-0800

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