H-1B Basics: What You Should Know About the Popular Work Visa

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The H-1B visa is a work visa that allows foreign nationals with certain skill sets to live and work in the U.S. H-1B is considered a dual-intent status, which enables H-1B visa holders to pursue permanent residency (green card). It is one of the more popular visas in use today. But as is the case with all things immigration related, obtaining and keeping an H-1B can be complicated.

As a law firm specializing in immigration law, we understand the H-1B visa intimately. We can provide you with a qualified H-1B visa attorney more than capable of helping work through your employee’s case in a timely manner. In the meantime, here are the basics of the H-1B visa:

Limited Availability

The H-1B visa program is not open-ended in the sense that anyone can apply at any time. By law, the U.S. Citizenship and Immigration Service (USCIS) can only approve 85,000 new H-1B visas annually. For all practical purposes, employees need to be sponsored by a U.S.-based employer that will file the H-1B visa petition on his or her behalf.

The law favors foreign nationals with advanced degrees from U.S. institutions. However, employees may be eligible to apply for an H-1B visa they have a bachelor’s degree in the field of endeavor. Also note that the H-1B limit does not apply to educational institutions, government research organizations, and nonprofits affiliated with institutions of higher education. Such organizations can sponsor employees for H-1B visas at any time.

Eligibility Requirements

In order to be eligible for the visa, employees must hold at least a bachelor’s degree. They must also be offered what is considered a specialty occupation by a U.S. employer, and their degree must align with the job duties for the position being sponsored.

There are a number of criteria by which an employer can classify an open position as a specialty occupation. Applicable criteria may include things like specialized training and job requirements that dictate both formal training and real-world experience. Needless to say, there are various ways to meet the specialty occupation threshold.

Applying for the Visa

The H-1B visa program works on a lottery basis. Employees hoping to work for an employer that is not exempt from the H-1B limit, will need to be registered with USCIS’s new online lottery system. This typically happens in March every year. If selected, employers will then need to complete and submit the required paperwork.

Once the required petition is prepared and filed, it will take USCIS several months to adjudicate. USCIS may require additional information, in which case they will issue a Request for Evidence (RFE). The RFE must be addressed adequately in order to achieve an approval for the employee. The RFE will also likely indicate potential weaknesses in the case. It is helpful to have an experienced immigration attorney involved to improve the likelihood of an approval.

Employers also typically have the option to file H-1B petitions with premium processing. It requires an additional government fee of $2500, but will more the case to adjudication much faster than cases filed with normal processing. In many instances, cases filed with premium processing may be approved in about two weeks instead of several months. This can be especially helpful for F-1 students whose status is expiring soon, as well as those who are changing to H-1B from another status, such as L-1.

Complicated, But Not Impossible

After reading the basics of the H-1B visa process, one may be left thinking that it is too complicated. This happens a lot with companies that have not filed an H-1B petition previously. We encourage such companies to schedule a call with us. We can demystify the process and help companies work through a cost/benefit analysis to determine if H-1B visa sponsorship is right for their employee or job candidate. Obtaining an H-1B visa is complicated, but it is very achievable. We encourage companies to work with an experienced immigration attorney from day one of the process, not only to file a strong case but also to explain the company’s obligations and help it avoid liability.

A skilled H-1B attorney can help companies navigate all the requirements. They can answer questions while providing companies with sound advice.

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