 H-1B Classification:
The H1B Visa (Professional in a Specialty Occupation) allows a U.S. employer to fill a position requiring the minimum of a baccalaureate in the particular field with a qualified worker from abroad. The foreign worker must possess that U.S. degree or an acceptable foreign alternative. In some cases, a combination of studies and relevant experience may substitute for the degree if it is determined by a credentials expert to qualify the foreign professional. H-1B Visa does not require maintenance of a foreign residence. Three years of professional progressively responsible work experience and/or specialized training can be counted towards one year of formal education in certain situations. Note that before H-1B petition can be filed before appropriate Service Center, a certified Labor Condition Application is required. As most of the readers already may know that the maximum admission under H-1B status is of six years. Note that now time spent outside the United States can be recaptured, thus the H-1B can be extended for the number of days the individual was shown to have been outside the country.
A Specialty Occupation is defined as:
Theoretical and practical application of a body of highly specialized knowledge and
Attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.
Few successful examples of H-1B filing by our attorneys before Texas, California, Nebraska and Vermont Service Centers are as follows:
Accountant, Administrative Service Manager, Architect, Civil Engineer, Computer Programmer, Computer Software Specialist, Database Administrator, Electrical Engineer, Engineering position(s), Environmental Specialists, Financial Manager, GIS Analyst, Insurance Underwriter-Agent, Law Clerk, Lawyer, Loan Officer, Management Analyst, Marketing Manager, Network Analyst, Physician, Project Manager, Property Manager, Purchasing Manager, Pharmacist, Post Graduate Researcher, Software Engineer, Software Developer, Systems Analyst, Teachers, etc.
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Cap:
Currently, there is an annual cap of 65,000 H-1B visas per year less the Free Trade Visas for Chile and Singapore, resulting in 58,200 actual H-1B Visas per year. Note that only new employment is covered under the cap. However, the following categories are exempted from the cap:
Persons employed at a university, affiliated non-profit entity, non-profit research organizations, or government research organization;
Persons who have previously been counted against the H-1B quota (a person would only be counted once against the cap unless s/he has a year outside the U.S., thereby resetting the clock on the six-year limit.);
Physicians who obtained a "Conrad 20 waiver" of the J-1 two-year home residency requirement; Extensions of stay for those already on H-1B status and H-1B amendments with the same employer which are not requesting an extension of stay;
Change of employers by a person already on H-1B status; and
Persons already engaging in H-1B employment who are applying to work concurrently/simultaneously for an additional employer while maintaining their current employment.
Portability:
Portability means provision under law, which allows the alien employee to "port" to a new employer even before his second or subsequent H-1B is approved. Under the portability provisions, the employee may port to new employment upon receipt of filing of new petition if:
She/he was lawfully admitted;
The new petition was filed before the date of expiration of the period of stay;
The new petition is non-frivolous, and
Beneficiary has never been employed without authorization in the U.S. before the filing of the H-1B petition.
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Premium Processing:
Premium Processing of H-1B is possible. Under Premium Processing provisions, the relevant Service Center guarantees to adjudicate the petition in 15 calendar days if an additional $1,000 premium processing fee is paid.
How We Can Help You:
Often filing an H-1B involved strategic planning such as determining the nature of the position and whether the beneficiary's background are appropriate for the H-1B, timing, consulate processing delays, etc. We suggest best possible filing strategy and alternatives if the initial proposal is not a viable option. We can advise both the employer and prospective employee regarding the H-1B documentation requirements and legal issues. We can also prepare paperwork and submit it to the Department of Labor and U.S. Citizenship and Immigration Services. If applicable, we can prepare and file applications for dependent family members, as well. For those who require or choose consular processing, we can assist with applying for the H-1B and H-4 (dependent) visas at the appropriate U.S. Consulate abroad if needed.
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