H-1B General Overview

The H-1B nonimmigrant visa category allows a foreign national to enter the U.S. on a temporary basis for the purpose of performing services in a "specialty occupation" for a U.S. employer.The H-1B visa (H-4 for dependants) is suitable for such professions as architects, accountants, doctors, engineers, professors, researchers, software/ computer programmers, attorneys and other professionals.

The H-1B visa is valid for an initial period of 3 years and can be extended for another three year period for a maximum of 6 years (exceptions apply). Please note that time previously spend in L status is also counted towards the maximum 6 year period.

After the 6 year stay, individuals must depart from the U.S. for at least one year before they can qualify again for H-1B status for another 6-year period. In order to reapply for a new 6 year period, the foreign national must undergo the same H-1B process.

The basic process of obtaining an H-1B Visa is:

• Securing an employment offer with a U.S. Employer
• Foreign national meets all "specialty occupation requirements"
• The U.S. Employer complies with the attestation requirements
• A Petition is submitted with the USCIS
• Upon approval of the petition the foreign national applies for a visa with the U.S. Consulate abroad unless already within the U.S. than the foreign national will get his/her visa stamped at the U.S. Consulate upon foreign travel

• The foreign national must have at least the equivalent of a U.S. Bachelor's degree in a field related to that occupation
• The U.S. employer must offer bona fide employment in a specialty occupation, either on a full or part time basis.
  
  
  • One can apply for part-time H-1B status as long as the work hours are 50% of the normal full time hours in that industry and the foreign national can satisfy all other requirements
  • One can work for multiple employers
• The sponsoring company must pay the foreign national the prevailing wage
• Once the H-1B process is initiated by a company, the Employer must comply with mandatory attestation requirements
• The employer must maintain a public inspection file
• The employer must agree to pay the foreign national the reasonable cost of transportation to return to his or her home country if the employer terminates employment prior to the end of the authorized employment period.

After a job is offered and accepted by the foreign national, the process of obtaining H-1B visa can begin. One can apply for H1-B visa six months prior to the commencement of the employment, but no earlier than this. The start date for an H-1B subject to the cap is October 1 for each fiscal year.

The H-1B "Cap" refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on a "new" H-1B visa. Petitions that are counted against the cap are:

• Foreign nationals who change status from another nonimmigrant visa (such as F-1, L-1, J-1, and etc.)
• New H-1B Visa filed by petitioner (employer) who is not "cap exempt" and the foreign national was not counted against the cap in the past 6 years
  
  
  • A foreign national is not considered to file a "new" H-1B Petition
    if he or she is:
    
    
    • Changing Employers (unless going from cap exempt to non cap exempt employer)
    • Extending H-1B Status

It is important to apply for an H-1B visa as early as possible (this means as early as 6 months before your start date unless you are cap exempt) due to the fact that the H-1B quota has been used up very quickly in the past, otherwise, the H1-B processing could be substantially delayed.

The numerical cap is currently at 65,000 (minus 6,800 H-1B visas allocated for foreign nationals from Singapore and Chile) plus there are an additional 20,000 H-1B visas available for individuals with U.S. Master Degrees.

USCIS conducts a random drawing of H-1B visas based on eligibility at the beginning of April. Since the allowed starting date for H-1B visas subject to the cap is October 1 of each fiscal year. The earliest a Petition can be filed is April 1. Please be aware that the quota usually is reached during the first day(s) of eligible filings due to the large volume of petitions received each fiscal year.

The cap for U.S. Master Degree Petitions is usually not reached as quickly but the trend each year is that this category is filled quicker than in previous years due to the increase in qualified applicants. To increase your odds you should aim to file you petition as well by April 1.

USCIS will determine the date the cap had been reached and designate this date as the "final receipt date." Every Petition that was filed after the "designation date" will not be considered for the random drawing. Even petitions with a receipt date on or before the "designation date" can not be assured that their petitions will be processed because they are still subject to the random selection process in which only the selected ones will be counted against the cap.

Any petitions received after the designation date as well as petitions that were not randomly selected in the process described above will be rejected and returned along with the filing fee(s).

If an individual receives an H-1B visa during the cap selection process, they may start to work on October 1 of that fiscal year.

Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year.

Generally speaking, the average processing time for an H-1B petition is between two and four months and this can be upgraded to premium processing granting adjudication within 15 business days.

Unless otherwise authorized to work, employment may not begin until the USCIS has approved the petition. If the foreign national already holds an H-1B visa, the foreign national may begin work for a new employer as soon as the new employer files an H-1B petition on behalf of the employee with USCIS.

The H-1B visa does not automatically convert to a lawful permanent residence status. The foreign national and the company will have to initiate a permanent residency process if so desired.