H1Bs in a Nutshell
We have filed hundreds of successful H-1B petitions for software developers, physicians, engineers, educators, and many other professionals for jobs located throughout the United States. In recent years H-1B petitions have become very challenging . Our firm has a strong track record of success in dealing with difficult cases and RFEs (Requests for Evidence).
Here is information about the H-1B category:
- The H-1B category is intended for “professional” workers, referred to as “specialty” workers in the immigration laws. A “specialty” occupation is any job that requires a bachelor’s degree or better in a specific field. It is not enough that the worker holds such a degree; the job itself must require such a degree.
- USCIS, the agency responsible for processing H-1B petitions, has challenged and even denied many H-1B petitions on the grounds the job in question does not require a degree; or does not require a degree in a specific field; or that the beneficiary does not hold the correct degree. Computer systems analysts and computer programmers are just two occupations where this has occurred. To be successful, such petitions must be carefully prepared by experienced legal counsel.
- 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 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 every year since 2013 the entire quota of 85,000 was reached at the beginning of the application period. USCIS holds a lottery in March of each year to determine who is able to apply.Under this system, employers register in March on a USCIS web site, listing the employees they wish to sponsor. There is a $10 user fee per employer. USCIS will then hold a lottery among the beneficiaries listed on the web site. Employers will be notified by March 31 whether their employees have been selected. Employers will then have 90 days to file petitions for the beneficiaries who have been selected.
- 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, affiliated institutions such as teaching hospitals, and certain nonprofit research organizations are exempt from the cap, as are Conrad 30 physicians.
- Family members (spouses and children) can accompany the H-1B as “H-4’s,” but usually cannot work. Under a 2015 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 is eligible for a “7th year extension” based on a labor certification filed more than one year previously.
- The base filing fee for an H-1B petition in every case is $460. There is a surcharge of $1,500 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.
- Normal H-1B processing can take four to six months, or longer. For an extra fee of $2,500, USCIS will process the petition in 15 days. However, premium processing may be suspended from time to time for some or all H-1B categories. Beginning February 26, 2024, the premium processing fee will increase to $2,805.
- Before filing the H-1B petition, the employer must file an “LCA” (Labor Condition Application) with the Department of Labor. The LCA is a promise by the employer to pay the prevailing wage to the H-1B employee. Notice of the LCA filing must be given to employees, either by physical posting at the jobsite, or by electronic means. The LCA is intended to protect the wages and working conditions of all U.S. workers.
- If a person in H-1B status gets a new job, the new employer must file a new petition. 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 first 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.
- 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.
- Many persons begin the green card process while working as an H-1B. This requires the sponsorship of the employer. Under a law called “AC21,” H-1B workers can get additional one-year extensions after reaching the six year limit, 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 his or her priority date is not current, the person can get three-year H-1B extensions beyond the six years.
