What is an H1B Visa?
The H1B visa is for nonimmigrant workers in specialty occupations who have a bachelor’s degree or its equivalent. In order to be eligible for an H1B visa, the alien must have a bachelor’s degree or higher in the specialty for which a visa is sought or experience in the specialty deemed equivalent to such degree. The H1B visa is also available for fashion models of distinguished merit and ability under distinct rules, which do not include the degree requirement. In this article, we will examine the H1B process.
H1B Petition Process
The H1B petition is filed by the employer on the Form I-129, Petition for Nonimmigrant Worker. However, in order to have a Form I-129 approved, the employer must have a labor condition application (LCA) certified by the Department of Labor (DOL). The purpose of the LCA is for the DOL to certify that the position is for a specialized knowledge professional employee and that the beneficiary of the petition would be paid the prevailing wage. Form I-129 may not be filed for an H1B beneficiary more than six months before the proposed employment start date. Furthermore, the Form I-129 must actually specify an employment start date. The USCIS recommends being aware of the current DOL LCA processing times to ensure that the position is certified before the filing of the Form I-129.There is an annual cap of 65,000 available H1B visas each fiscal year. The vast majority of H1B petitions are cap-subject. There are limited cap exemptions or modifications:
- The first 20,000 accepted petitions for beneficiaries with a U.S. master’s degree or higher are cap exempt, any excess petitions in this category are placed with the pool of cap-subject applicants;
- Beneficiaries of petitions by “an institution of higher education, or related nonprofit entity” or by “a nonprofit research organization or governmental research organization” to engage in certain kinds of employment are cap exempt;
- 6,500 H1B visas of the 65,000 H1B visa cap are reserved for nationals of Chile and Singapore (however, such applicants will be required to demonstrate nonimmigrant intent).
Each fiscal year, USCIS begins accepting cap-subject H1B petitions and applications for beneficiaries with a U.S. master’s degree or higher on April 1. This allows for an employment start date of October 1 in the same year. USCIS will continue accepting petitions until the H1B cap is reached. If the H1B cap is exceeded within the first five business days in which USCIS is accepting applications, USCIS will pick petitions from a lottery (this applies as well for the cap of 20,000 exempt petitions for beneficiaries with a U.S. master’s degree or higher). In recent years, the USCIS has received vastly more than 65,000 and 20,000 petitions, respectively, during the first week of accepting applications. This means that an employer petitioning for an H1B worker should be prepared to file his or her Form I-129 on April 1. It is important to note that filing a Form I-907, Request for Premium Processing Service, does not afford any special benefit for a cap-subject petition.
Because cap-exempt petitions are not subject to the H1B cap, they may be filed at any time provided that the requirements are met.
Amended H1B petitions or a Form I-129 filed for a beneficiary seeking to exercise H1B portability are never subject to the H1B cap.
Obtaining H1B Visa Process
If the beneficiary is not in the United States in a valid nonimmigrant status, he or she must obtain an H1B visa while abroad after the Form I-129 has been approved. If the beneficiary is in the United States maintaining lawful nonimmigrant status, he or she may apply for a change of status to H1B using the Form I-539, Application to Extend/Change Nonimmigrant Status. It is important to note though that the beneficiary may not commence employment until the change of status has been approved and until his or her H1B employment start date.
H1B Amended Petition Process
In certain cases, an employer may need to file an amended Form I-129 petition. In general, this is necessitated if there is a significant change in the nature of the beneficiary’s employment. Current USCIS rules require an amended Form I-129 to be filed if an H1B employee’s worksite location is changed such that a new LCA is required.
H1B Extension of Stay Process
H1B status may be granted for an initial period of 3 years. It may be extended, but the H1B employee may not generally stay for more than six years in the aggregate. In order to apply for an extension of stay, the petitioner must file a Form I-539, Application to Extend/Change Nonimmigrant Status on behalf of the beneficiary before his or her status expires. Certain applicants with long-pending immigrant visa petitions and/or labor certification applications are eligible for extensions beyond six years.
H1B Portability Process
H1B beneficiaries are allowed to exercise what is called “H1B portability.” Under this provision, an H1B employee may switch employers upon the new Form I-129 being properly filed on his or her behalf. However, it is important to note that the new employer must meet the requirements of an H1B employer for the portability petition to ultimately be approved. If the Form I-129 is denied, the new employment must cease.
Conclusion: H1B Process
Petitioners for H1B workers are well advised to consult with an experienced immigration attorney. This is because it takes careful planning to ensure that an H1B petition is completed and filed in a timely manner in order to be considered for the current fiscal year. Additionally, H1B employees should consult with an experienced immigration attorney for guidance on issues such as applying for a change of status, exercising H1B portability, or extensions beyond the six year limit (and applying for immigrant visas in general).