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When Is an H-1B Visa Appropriate?

When an American employer needs highly professional labor or services, that company may petition for H-1B visas for professional foreign workers, allowing them into the country temporarily to perform the job.

There is a limit, or “cap,” on how many workers are granted H-1B visas every fiscal year. The current limit is 85,000 new visas—65,000 for workers with a bachelor’s degree, and 20,000 for workers with a master’s degree or higher from a U.S. institution. Every year, H-1B petitions for the next fiscal year may be submitted on the first business day in April, which will be Monday, April 2nd, 2018. This year, high demand is expected due to potential changes in the H-1B visa system based on political and industry factors—including President Trump’s “Buy American, Hire American” executive order that intends to “crack down” on H-1B fraud, as well as the burgeoning U.S. economy.

The competition for these slots will be fierce. Though USCIS is legally required to accept all H-1B visa petitions for five business days from April 1st, it usually receives enough cases to fill the cap numbers in less time than that. We recommend that you prepare H-1B visa petitions for your intended workers as soon as possible for filing on April 2, 2018.

What Is an H-1B Visa?

H-1B visas are issued to “people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.” (USCIS)

These visas are most commonly used by technology or IT companies according to statistical data provided by USCIS. “Specialty occupation” under H-1B visa may include doctors, lawyers, accountants, architects, professors, and more.

The H-1B visas are allocated by regulation, and the U.S. Citizenship and Immigration Services conducts the lottery for random selection. The initial application must be filed by the employer, not the worker. (An agent is allowed to file an H-1B visa petition for a fashion model, but generally, all other H-1B visa petitions must be filed by the employer.) H-1B visa holders can bring their spouses and children under 21 years of age to the U.S. under the H-4 “dependents” visa.

H-1B visa holders and their dependents are allowed to stay in the United States for an initial period of three years, though they can petition to stay for a maximum of six years. While in the U.S., H-1B visa holders are also allowed to apply for Green Cards and become permanent residents.

What Are the Requirements?

Job Requirements

To qualify as a “specialty occupation,” an employer must:

  • Prove the position’s minimum entry requirement is a bachelor’s or higher degree in a specific field of study or equivalent.
  • Prove that the degree requirement for the position is common to the industry, or the job is so complex or unique it can only be performed by an individual with a degree.

Worker Requirements

To be admitted on an H-1B visa, a foreign national must:

  • Have completed a bachelor’s or higher degree in a field required by the specialty occupation from an accredited U.S. college or university, or an equivalent foreign degree as determined by a reputable credential evaluation agency.
  • Hold an unrestricted state license, registration, or certification which authorizes him or her to practice the specialty occupation in the state of intended employment.
  • Have education, training, or experience in the specialty equivalent to a degree.

Before petitioning for H-1B workers, the employer must file Form ETA-9035, Labor Condition Application for Nonimmigrant Workers, to the U.S. Department of Labor. After receiving this certification, the employer must submit it alongside Form I-129, Petition for Nonimmigrant Worker, to a USCIS Service Center. Once approved, the worker may apply for the H-1B visa stamp through the U.S. Department of State at a U.S. Embassy or Consulate abroad, or for Canadians, directly at the border through U.S. Customs and Border Protection.

There are several different fees applicable to initial H-1B filings: the standard filing fee of $460, the Fraud Prevention Fee ($500), and the ACWIA fee ($750/$1,500 depending on employer’s size). Some employers must also pay an additional fee of $4,000.

USCIS also offers a premium processing service for $1,225, which is recommended.

Need Help Filing H-1B Applications?

For over 60 years, our team of New York immigration attorneys at Pollack, Pollack, Isaac & DeCicco, LLP, has helped businesses with immigration issues throughout the United States. You can ask questions about H-1B visas by contacting us online or by calling 212-203-4795 today.

 

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