liveimmigration.com

The H-1B Visa is used by foreign professionals who are sponsored by a U.S. employer to work in a specialty occupation in the U.S. An H-1B visa is generally valid for three years and can be extended for an additional three-year period. (Extensions beyond the 6 year limit are possible if certain conditions are met.) A significant advantage of an H-1B visa is that the H-1B holder may have “Immigrant Intent.” That is, he or she may have the intention to apply for a Green Card and remain in the U.S. Thus, an employer may sponsor an H-1B employee for a Green Card, if desired.

In order to qualify for an H-1B visa, there are 3 general requirements:

1. The applicant must hold at least a Bachelor’s degree awarded in a 4 year program. Or he/she may hold the academic equivalent of such 4 year degree awarded by a foreign college. The student’s Major field of study must specifically be required by the position. Note: in certain cases employment experience can be substituted in lieu of academic study.

2. The job itself must qualify. That is, the job must be of such level of specialty that it requires any person to hold a 4 year Bachelors degree in a specific Major field of study.

3. The prospective U.S. employer must agree to pay the H-1B employee at least the prevailing wage earned by similarly employed workers in the area of employment and must make other attestations as stipulated by the Department of Labor.
Individuals seeking a U.S. work visa who do not qualify for H-1B status should explore alternate visa options, such as the L-1, or TN visa.

The employment position offered need not be a full-time job. A part-time job is acceptable to qualify for the H-1B visa. This is different from a job offered as a basis for a Green Card application, which must be a full-time job.

There is a general limit of approximately 65,000 H-1B visas which can be issued each year. (There are exceptions to that limit for certain classifications, such as students awarded a graduate degree [Masters and above] from an American college or university.) In past years, the demand for H-1B visas has exceeded supply to such an extent that all available visas have been exhausted within days. This has resulted in the U.S. Immigration Service (USCIS) holding a “lottery” system, whereby the USCIS only completes processing for randomly selected applications. Applications that are not selected in the years that the lottery stems is in place are rejected. Because so few H-1B visas are available, successful H-1B visa applicants have had to approach the H-1B visa application process with foresight and a calculated strategy. For example, if a student has graduated and is on his or her “OPT” (period of post-graduation Optional Practical Training), it is critical that the H-1B petition be timely filed. Otherwise, the student will not be eligible to change status from F-1/Student status to H-1B. It must also be taken into account that although an H-1B Petition may be filed in April of a given year, the H-1B may not take effect, and thus give lawful status, to the Beneficiary until the following October. An OPT expiring before the October start date may cause the Beneficiary to depart the U.S. until the validity period of the approved H-1B.

The H-1B application process has a number of complex, interrelated requirements. Not only must the Petitioner (U.S. Employer) take into account the appropriate timing for filing, but the various legal requirements and changes to the procedures must be considered. An example of this is that the Dept. of Labor no longer issues an automatic, immediate “LCA” (Labor Condition Application) on-line. Now each application is personally reviewed. Furthermore, the USCIS is more frequently sending out Requests for Additional Evidence (commonly called “RFE”s) than before. Given the present processing changes, a licensed attorney experienced in handling H-1B Petitions should be consulted prior to submitting documents to the Dept. of Labor or the Immigration Service.

The process of applying for an H-1B visa involves careful preparation and strategy. In years where a lottery system is in place, it is vital to submit a flawless application the first time. Mistakes and miscalculations in submission of the H-1B visa application process can result in a denial of the petition and mean that a visa applicant must wait for an entire year before he or she is eligible to submit another visa application.

Give yourself the tools you need to make the most informed decisions about applying for the H-1B visa: Find out how the process works, what timing considerations are involved, and what forms and supporting documents must be submitted.

Click here to get all the information you need to properly file for your H-1B visa.