H-1B Specialty Workers
We have filed hundreds of successful H-1B petitions for software developers, doctors, engineers, educators, and many other professionals for jobs located throughout the United States. Send us email if we can help you. Here is information about the H-1B category:
- H-1B workers are admitted to the United States for three years, which may be extended to a total of six years. The H-1B category is intended primarily for “professional” workers, referred to as “specialty” workers in the immigration laws. A bachelor’s degree is usually the minimum qualification. Not only must the worker hold such a degree, the job itself must require such a degree. Examples of H-1B occupations include software developers, engineers, teachers, doctors, physical therapists, and many others. Any occupation where a bachelor’s degree (or higher) is normally required will qualify.
- What if you don’t have the necessary degree? US Citizenship and Immigration Services will accept work experience in place of a degree in some cases. USCIS requires three years of experience for every year of formal education that is lacking. For instance, a computer programmer with a two year degree and six years of experience may qualify. An evaluation of the applicant’s education and experience by a university professor is usually required as well. Our firm has obtained H-1B visas for many individuals who lack a full four-year bachelor’s degree.
- You cannot get an H-1B unless you have a job offer. The employer must file the petition on behalf of the employee.
- The base filing fee for an H-1B petition in every case is $325. There is a surcharge of $1500 for most H-1B petitions. The surcharge is reduced to $750 for employers with no more than 25 employees. There are several exemptions to the surcharge, including universities and affiliated institutions such as teaching hospitals, primary and secondary schools, and second extensions filed by the same employer. There is an additional “fraud prevention fee” on top of that in the amount of $500. This applies to all first-time H-1B petitions and change of employer petitions.
- The employer must also file a form known as an “LCA” (Labor Condition Application) with the Department of Labor, and the form must be certified by the Department of Labor. The LCA is a promise by the employer to pay the prevailing wage to the H-1B employee, and to pay the H-1B employee at least as much as U.S. workers doing the same job. Notice of the LCA filing must be given to employees in the same occupational classification, either by physical posting at the jobsite for 10 days, or by electronic means. Information about the LCA must be kept by the employer in a “public access file.”
- If a person in H-1B status gets a new job, the new employer must file another petition and pay a new filing fee. Although this is sometimes called a “transfer,” it is really a new petition and must contain all the same evidence and satisfy the same requirements as the original petition. Under the H-1B “portability” rules, previous H-1B holders can begin work for a new employer as soon as the petition is filed. People who have not previously held H-1B status must wait until the petition is approved.
- There are a limited number of new H-1B visas available each year. Since October 1, 2003, the number available has been 65,000. There are also an additional 20,000 available for persons with a U.S. master’s degree. Each year’s supply is available for start dates of October 1 of that year. People can apply six months in advance, i.e., on April 1. In 2007, the quota was exhausted on the first day. The same thing happened in April 2008. There was a big change in 2009 due to the economy. The supply was not exhausted until December 21, 2009. The following year the supply lasted even longer, until January 26, 2011. However, the fiscal year 2012 cap was reached on November 22, 2011, and the 2013 cap was reached on June 11, 2012. In 2013, the supply was once again exhausted in the first week. The same thing happened in 2014 and 2015 when 233,000 petitions were filed. USCIS holds a lottery when the number of petitions received exceeds the supply available. These limits do not affect current H-1B holders who are changing to new employers and do not affect people seeking an extension of stay in H-1B status. Also, university employers and certain nonprofit research organizations are exempt from the cap, as are J-waiver doctors.
- Once the H-1B petition is approved, an employee who is outside the United States can obtain a visa and enter the United States. Canadian citizens need approved petitions, but don’t need visa stamps. The employee can only work for the employer who filed the petition, and may only work in the specific job described in the petition. Family members can enter also as “H-4’s,” but usually cannot work. Under a new regulation, H-4 spouses of H-1B workers can now apply for work authorization if the H-1B worker has an approved I-140 Immigrant Worker Petition, or has been granted a “7th year extension” based on a labor certification filed more than one year previously.
- H-1B petitions are filed by mail or courier at the Vermont Service Center or California Service Center, depending on where the job is located. They usually take several months to process. For an extra $1,225 filing fee, USCIS will process an H-1B petition in just 15 days. This is called Premium Processing.
- If you hold an H-1B, you are allowed to have the intent to remain permanently in the United States. Many H-1B employees begin the green card process while working as an H-1B. This requires the sponsorship of the employer. Since the green card process takes several years, it is important to begin before you have used up too much of your six years of time in H status. Under a law called “AC21,” H-1B workers can get additional one-year extensions after the usual six years, if a labor certification or immigrant petition was filed at least one year previously. In addition, if a worker has an approved I-140 immigrant worker petition, but cannot get a green card because of retrogression in priority dates, the person can get three-year H-1B extensions beyond the six years.