H-1B, Specialty Workers

Nonimmigrant (Temporary Status) H-1B SPECIALTY WORKERS

Professionals and Specialty Occupations Requiring at Least a Bachelor's Degree

Persons may apply for this type of visa if they have been offered a temporary position in the United States in a "specialty occupation" or a professional position. A professional position is a position which requires a Bachelor's degree as a normal entry-level requirement and the person must possess either the relevant degree or the vocational equivalent of the degree.

There is a limit to the number of new H-1B visas which can be granted each fiscal year, which runs from 1 October to 30 September. The current annual limit is 65,000. The H-1B category is overprescribed, and each year the U.S. Citizenship and Immigration Services ("USCIS") receives over 65,000 new H-1B petitions. In fact, all 65,000 are usually used up within the first couple of days of filing, and the earliest possible date for filing a new H-1B petition is 1 April.

Under certain circumstances, an H-1B petition will be exempt from the 65,000 cap. Those circumstances are outlined below.

In 2008, the USCIS accepted cap-subject H-1B petitions for the first five business days in April. After that, it ran a lottery to select the 65,000 new H-1Bs. An additional 20,000 H-1B visas are available each year to foreign workers who have a Master's degree or higher from a U.S. educational institution, and the USCIS also ran a lottery this past April to select those 20,000 petitions. The USCIS first performed the lottery for the 20,000 Master's degree cap cases. Any petitions not selected during that process were added to the pool of petitions subject to the 65,000 cap. Then the USCIS ran the lottery for that pool.

Because accepting duplicative filings undermines the fair and orderly administration of the cap, the USCIS introduced an interim final rule prohibiting the filing of more than one petition for any one alien beneficiary during any fiscal year, even if there is more than one job offer for distinct positions. This rule only applies if the petition is subject to either the 65,000 cap or the 20,000 Master's degree cap.

When there are two distinct positions being offered by the same employer, the employer must file just one H-1B petition. If that petition is selected and subsequently approved, the employer may then file a second petition on behalf of the alien. That second H-1B petition will be cap-exempt because the beneficiary will have already been counted against the cap.

The rule, however, does not preclude related employers (i.e., a parent company, subsidiary or affiliate company) from filing petitions on behalf of the same beneficiary if they have a legitimate business need to do so. An attempt to increase the chances of selection in the random selection process is not a legitimate business need, and a duplicate petition must not be filed for this purpose.

If an H-1B petition is denied, on a basis other than fraud or misrepresentation, the employer may file a subsequent H-1B petition on behalf of the same beneficiary provided that the cap has not been reached or provided that the petition is cap-exempt.

The following H-1B beneficiaries are exempt from the H-1B cap of 65,000:

1. Beneficiaries employed at, or who have received an offer of employment at, an institution of higher education (as defined in § 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity.
2. Beneficiaries employed by, or who have received an offer of employment from, a nonprofit research organization or a governmental research organization.
3. Beneficiaries who have earned a Master's degree or higher from a U.S. institution of higher education (as defined in § 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), until the numbers of foreign nationals who are exempted from the H-1B cap during such year exceeds 20,000.
4. Beneficiaries who have already been counted, within the 6 years prior to the approval of a petition, against the H-1B cap, unless they would be eligible for a full 6 years of H-1B status at the time the petition is filed. Beneficiaries are eligible for a full 6 years of H-1B status if they have lived outside the U.S. for at least one year. Where multiple petitions are approved for one beneficiary, that beneficiary will be counted only once.
5. Beneficiaries who have held J-1 nonimmigrant status and obtained a waiver of the 2-year foreign residence requirement upon a request by an interested Federal agency or an interested State agency.

There is an exception to the exemption in item 4 above. That exception applies to a beneficiary who has been employed by an institution of higher education, nonprofit research organization or governmental research organization and then changes his or her employer, and the new employer is not a cap-exempt entity. That beneficiary will be counted against the H-1B cap.

An H-1B visa can be issued initially for up to three years and may be extended for up to three additional years. Once a person has been in H-1B status for six years, he or she must leave the U.S. and remain outside for a period of one year before he or she may apply for a new H-1B visa and the six year cycle begins again.

Extension Beyond the 6th Year:

Under the American Competitiveness in the 21st Century Act, the beneficiary of an H-1B visa is entitled to a seventh year extension if a labor certification application or an I-140 employment-based immigrant petition has been filed and pending for 365 days prior to the beneficiary's start date, which is requested on the H-1B petition.

A beneficiary may also be eligible for an extension beyond the sixth year if he or she has an approved I-140 petition and is ineligible to adjust status or apply for an immigrant visa abroad because no immigrant visa numbers are available.

How to Apply for an H-1B Visa:

The process for obtaining an H-1B visa is completed in two stages. The first stage known as the petition is completed as follows:

1. A prevailing wage survey must be completed to ensure that the foreign employee will be paid a wage that is at least 100% of the current salary received for similar employment in the geographic area where he or she is to be employed.
2. Once the prevailing wage survey has been completed, the petitioner posts two Labor Conditional Application ("LCA") posting notices for 10 business days at the worksite where the foreign national will be employed and then submits the actual LCA online, which is immediately certified by the U.S. Department of Labor. The petitioner then prints the certified LCA, posts two copies of it for 10 business days at the worksite where the foreign national will be employed. After the posting period, the petitioner must place them in the beneficiary's LCA Public Access File, which the petitioner is required to maintain.
3. In addition to obtaining an LCA, the petitioner must satisfy the U.S. Citizenship and Immigration Services ("USCIS") that: the employer has a need for a "specialty occupation worker"; the job being offered is a "specialty occupation"; and the prospective employee has the qualifications to do the job.
4. Governmental fees for an H-1B petition include $325 for Form I-129 Petition for a Nonimmigrant Worker; a Fraud Prevention and Detection Fee of $500, which must be paid by a petitioners seeking a beneficiary's initial grant of H-1B classification or those petitioners seeking to change a beneficiary's employer with the H-1B classification; and an Education and Training Fee of $1,500 for a new employer, change of employer, and first extension for an existing employer. Employers with fewer than 25 full-time employees (including U.S. affiliates and subsidiaries) pay a lower Education and Training Fee of $750. The following employers are exempt from the Education and Training Fee:
   1. Institutions of higher education and related or affiliated nonprofit organizations;
   2. Nonprofit and governmental research organizations;
   3. An employer who is filing for a second extension of stay for an H-1B nonimmigrant;
   4. Primary or secondary education institutions; and
   5. Nonprofit entities which are engaged in "established curriculum-related clinical training of students".
5. The petition is filed with either the USCIS California Service Center or the USCIS Vermont Service Center, depending on the location of the employment. As of 31 January 2011, the normal processing time for an H-1B petition was approximately two months. However, should the petitioner be willing to pay an additional fee of $1,225, processing of an H-1B petition can be completed within 15 calendar days of the receipt of that petition by USCIS.

The second stage of the process is the visa application which is commenced once the petition has been approved and involves the following:

1. A DS-160, Nonimmigrant Visa Application, which must be completed and submitted online. A passport-style photograph must also be scanned and uploaded when completing the DS-160.
2. A valid passport. There should be at least six months of unexpired validity and at least one blank page to insert the machine-readable visa.
3. Payment of the visa issuance fee, if required. Please contact Ferman Law which can advise as to which nationalities must pay a visa issuance fee and the applicable fee amount.

Applicants between ages 14 and 79 will need to attend in person a pre-scheduled H-1B visa interview at a U.S. Embassy or Consulate.

If you are in the U.S. and apply for a change of status to H-1B or an extension of your H-1B status, you only need to apply for a visa if you are going to travel outside the U.S. The H-1B visa will allow you to reenter the U.S. after a trip abroad.

How We Can Help You:

At Ferman Law, we review with you the feasibility and documentation needed for preparation of the petition. We obtain for you an evaluation of your education and work experience to show that you have the equivalent of a U.S. Bachelor's degree. In addition, we obtain for you a prevailing wage determination. We then prepare all of the necessary forms and submit a Labor Condition Application to the U.S. Department of Labor on your behalf. We file your petition with the USCIS. We can also prepare any visa applications which you and your dependents may need, including the scheduling of the visa interview at the U.S. Embassy. We will also then prepare you for that visa interview.