H-1B Visa

3 classifications under H-1B

An H-1B visa is for you if you will be working in the U.S. in one of the following 3 categories:

1. Specialty Occupation (H-1B): Basic requirements are,

--- A bachelor's or higher degree or its equivalent in a certain field is normally the minimum entry requirement for the position in the U.S.; and

--- You have a bachelor's or higher degree or its equivalent in that field, and hold an unrestricted state license, registration, or certification that is required (if any) to fully practice the occupation in the state of intended employment.

2. DOD (Department of Defense) Researcher and Development Project Worker (H-1B2): Basic requirements are,

--- The project is provided for under a government-to-government agreement administered by the U.S. DOD, and a bachelor's or higher degree or its equivalent is required to perform the duties; and

3. Fashion Model of Distinguished Merit and Ability (H-1B3): Basic requirements are,

--- The position/services require a fashion model of prominence; and

--- You are a fashion model of distinguished merit and ability.

H-1B is an employer-specific visa/status

An H-1B visa/status is an employer-specific authorization for employment, and not a universal work permit in the U.S. Therefore, if certain changes are expected to take place regarding the authorized H-1B employment---including change of work location, job title, or even employer---a new I-129 petition must be filed and approved prior to such changes.

Annual Quota

For H-1B visas, there is a limited annual quota: 65,000 for bachelor's degree holders, and 20,000 for U.S. master's degree or higher holders. In the future, the U.S. Congress may decide to change this cap. This annual quota does not apply if:

--- The U.S. employer is an institution of higher education as defined by federal law;

--- The U.S. employer is a particular type of non-profit entity (not all non-profit organizations are cap-exempt); or

--- You have been given an H-1B status in the past and now you are seeking a certain extension, amendment, or change in your employment and status.

Please contact our office for details about the cap-exempt eligibility.

Why are April 1st and October 1st important?

If you are subject to the annual H-1B quota, the earliest day you can start working in your H-1B status is October 1st of the previous calendar year. For example, if you are under the annual H-1B quota for the FY (fiscal year) 2015, then you can start working as early as, but no earlier than, October 1st, 2014. And your employer may file an I-129 petition no more than 6 months in advance of the employment start date requested for you.

Dual intent permitted

When you are an applicant for an H-1B visa, having an immigrant intent (to seek permanent residence in the U.S. and apply for a green card in the future) is permitted. H-1B workers are not required to maintain foreign residence.

How to apply

1. First, your U.S. employer has to file a Form ETA-9035, Labor Condition Application (LCA), with the Department of Labor (DOL). The only exception to this requirement is H-1B2. The LCA contains some important terms of employment such as the identity of employer, specialty occupation, job title, length of employment, prevailing wage, and expected wage (salary). The LCA must be approved by DOL before the employer can file an I-129 petition with USCIS. A properly filed LCA is usually processed within 7 business days.

2. Next, your U.S. employer has to file a Form I-129, Petition for Non-immigrant Worker, along with proper Supplements, approved LCA, and supporting documents, with USCIS. The processing time can vary widely, anywhere between 2 months and 8+ months. The employer can choose to file the I-129 petition under a premium processing at an additional fee, in which case USCIS will respond---either with a decision or a request for additional evidence (RFE)---within 15 days; if an RFE is issued, the 15-day clock will start again once USCIS receives your employer's response.

3. Once the I-129 petition is approved, you can apply for an H-1B visa at a U.S. Embassy/Consulate. If you are already in the U.S. in lawful status and are seeking change of status, and if your employer had properly stated so in the I-129 petition, the approval of I-129 petition will come with a new I-94 for you and no further action is required.

4. If you obtain an initial H-1B visa at a U.S. Embassy/Consulate, the earliest date you can enter the U.S. with the H-1B visa is 10 days prior to the start date of employment as noted in the approval notice of the I-129 petition.

Cap-gap extension for certain F-1 students already in the U.S.

The period of time when an F-1 student’s status and work authorization expire through the start date of their approved H-1B employment period is known as the "cap-gap". I-129 petitions for H-1B that are timely filed and requesting a change of status of F-1 students (already in the U.S.) to H-1B on October 1st qualify for a "cap-gap extension".

Timely filed means that the I-129 petition requesting a change of status was filed during the H-1B acceptance period which begins April 1st while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the "grace period").

Once a timely filing has been made, the cap-gap extension will begin and will continue until the I-129 petition adjudication process has been completed. If the petition is approved, the student’s extension will continue through September 30th and the student can lawfully stay in the U.S. If the petition is denied, withdrawn, revoked, or is not selected during a lottery, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later. However, if the denial or revocation was due to the discovery of a status violation, misrepresentation, or fraud, there will be no cap-gap extension or a 60-day grace period, in which case the student will be required to leave the U.S. immediately.

If the I-129 petition was filed during the student's 60-day grace period (i.e., after his/her employment authorization had expired), the cap-gap extension will apply to his/her F-1 status but not to the employment authorization that had expired prior to the filing of the petition.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 visas/status. H-4 dependents may study, but cannot engage in employment in the U.S.

Period of stay

An H-1B worker may be admitted for a period of up to 3 years at one time, and up to 6 years in total. But there are some exceptions where your H-1B status may be extended beyond the 6-year limit pursuant to the American Competitiveness in the Twenty-First Century Act (AC21), if you and your employer had already started an employment-based immigration process and have reached a certain point in the process.