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Temporary Professional Workers (H-1B Visa)

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Mar 19, 2019)

What is H-1B visa?

H-1B is a temporary work visa, which allows U.S. employers to employ foreign professionals for “specialty occupations,” on a temporary basis. H-1B visa holders may live and work in the United States. The spouses and minor children of the H-1B visa holder may also accompany them to the United States.

H-1B1 is a variation of H-1B that is allocated to Temporary Specialty Professionals from Chile & Singapore.

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What are Cap-Subject H-1B Petitions?

Cap-Subject H-1B petitions are petitions which are subject to the annual quota of H-1B visa availability.

What are Cap-Exempt H-1B Petitions?

Cap-Subject H-1B petitions are petitions which are not subject to the annual quota of H-1B visa availability. See Cap-Exempt Employer.

What are the “specialty occupations” for H-1B visa?

H-1B visa is only available to foreign professional, who are qualified for and are going to be employed in a “specialty occupation.”

Under the Immigration and Nationality Act, a "specialty occupation" is an occupation requiring (a) "theoretical and practical application of a body of highly specialized knowledge" and (b) "attainment of a bachelor's or higher degree," or its equivalent, in the field.”

Examples of specialty fields of occupation include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

What are the educational requirements for H-1B visa?

To apply for H-1B visa for a foreign professional, the employer must show:

  • The foreign professional holds a bachelor's degree or higher, or their equivalent.
  • The degree is normally the minimum entry requirement for the “specialty occupation” position.
  • The degree requirement either (a) is common to the industry, or (b) the job is so complex or unique that it can be performed only by a professional holding the specified degree.
  • The employer commonly requires a degree or its equivalent for the proposed position.
  • The position's nature and duties are so “specialized and complex” that the required knowledge is commonly associated with the attainment of a bachelor's or higher degree.

If the position requires a license, the foreign professional must hold an unrestricted license to perform the duties of the position.

Who is a cap-exempt employer?

Generally, the following employers are cap-exempt, i.e., the H-1B visas for their prospective employees would not be subject to numerical limitation.

  • Institutions of higher learning
  • Nonprofit organizations associated with institutions of higher learning
  • Nonprofit research organizations
  • Governmental research organizations

If you are being employed through a third-party agency, such as a workforce agency, your employer may still apply under this category if the employer can show that you will spend all or most of your time in working for an employer qualified as cap-exempt.

Can I change employers after receiving an H-1B visa through another employer?

The American Competitiveness in the Twenty-First Century (AC21) allows portability of H-1B visas, thereby allowing employees holding H-1B visas to change employment if they were previously issued an H-1B visa, if

  • The H-1B visa holder is lawfully admitted to the United States;
  • The new employer has filed a Petition for a Nonimmigrant Worker (USCIS Form I-129), together with the required supporting materials and fees, before the employee's authorized stay in the United States has expired.
  • The employee has not engaged in unauthorized employment.

If this is what you wish to do, you must consult an attorney to address the applicable issues.

Can I enter the United States on an H-1B visa received through a cap-exempt employer and then switch to another employer?

No. There is no such loophole. If you receive your H-1B visa through a Cap-Exempt employer and later wish to switch to a cap-subject employer, your new prospective employer must go through the procedures applicable to cap-subject employers.

How is an application for H-1B made?

A petition for H-1B visa classification must be filed by your prospective employer.  The employer should first file a Labor Condition Application (LCA) with the United States Department of Labor. The LCA seeks a certification by the Department of Labor that (a) the proposed wages to be paid to you is at or above the prevailing wages for your position, and (b) employing you will not adversely affect the working conditions of U.S. workers. The U.S. Department of Labor does not charge any application fee for adjudicating the LCA. The processing time for LCA is usually between one to two weeks.

Once your employer has an approved LCA, the employer should file a Petition for a Nonimmigrant Worker (USCIS Form I-129) with the USCIS, together with the supporting documents and the required fees. Preparation for, completion, and submission of the Labor Condition Application and the Petition for a Nonimmigrant Worker are rather complex.

To see the current USCIS fee schedule, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your petition, see USCIS Processing Times.

If you are already in the United States and in status, the USCIS will change your status and will send you a notice with instructions. If you need your new status to be marked on your passport, make an appointment with your local immigration office through the USCIS' Infopass Web Site

If you are overseas, the USCIS will send the approved petition to the U.S. Department of State's National Visa Center (NVC) for Consular Processing.

What is the duration of H-1B visa?

Normally, an H-1B visa is good for three (3) years. It can be renewed once for another three (3) years. Thereafter, you must be physically outside of the United States for a full year before you can reapply for another H-1B visa.  There are various exceptions to this rule.

What is Cap-Gap Extension?

Cap-Gap extension applies to international students in the United States, who have an approved H-1B visa petition and need to stay in the country after the end of their F-1 status in order to start their H-1B employment on October 1st. For details, see Cap Gap Extension.

What happens if I resign or if I am fired while on H-1B visa?

If you resign, or are fired, from your position, your H-1B is automatically terminated and you go out of status. If your employer fires you before the expiration of your visa, the employer will be responsible for relocating you to the place of your last residence outside of the United States.

What are my options if I resign or if the employer fires me while I am on H-1B visa?

You will be out of status as soon as the position for which you received H-1B visa is terminated, either by you or your employer. In that case, you may (a) seek employment with another employer (leading to either a nonimmigrant or immigrant visa), (b) apply for change of status to another nonimmigrant visa category (within 60 days), or (c) leave the country.

Can I bring my spouse and children to the United States, if I receive an H-1B visa?

Yes. Your spouse and minor children (unmarried and under 21) may be listed on the petition as derivative beneficiaries. They will receive H-4 visas to accompany, or follow-to-join, you. H-4 visa would not entitle your spouse and minor children to work in the United States. If they wish to work here, either they must come here under a visa category which would authorize their employment or, under certain circumstances, they must file an Application for Employment Authorization, using USCIS Form I-765.

Can I find another job and apply for an employment-based green card while working on H-1B visa?

Yes. Either your current employer or another employer may petition to classify you as an immigrant alien worker.

Most nonimmigrant visa categories require the alien to have “a residence in a foreign country which [the alien] has no intention of abandoning.” That requirement usually would conflict with the intention of a nonimmigrant who applies for an immigrant visa. H-1B visa holders, however, are not subject to this requirement and may hold “dual intent,” i.e., H-1B visa holder may intend to immigrate to the United States while holding their nonimmigrant visa.

 

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