H-1B Visa Lawyer For Specialty Occupations
The H-1B Visa is one of the broadest options for a work visa, because there are not many requirements that need to be met in order to qualify for eligibility. It permits an individual to work in the U.S. for up to 6 years, in increments of 3 years. After the 6 years are up, the visa holder has the option to apply for lawful permanent residency, also referred to as a green card.
What is an H-1B Visa?
The H-1B category is designated for temporary professionals to work in the U.S. in a “specialty occupation,” which is generally defined as a position that requires at least a Bachelor’s degree or the equivalent. The applicant must prove eligibility for the H-1B category with documentation of sufficient educational credentials, licensure, and/or experience.
Work authorization for H-1B foreign specialty workers is employer-specific (i.e., limited to employment with the approved employer/petitioner).
Numerical H-1B Visa Limitations
Each year, Congress limits the number of new H-1B nonimmigrants admitted to the U.S., and it is currently capped at 65,000. An additional 20,000 H-1B visas are available for individuals with a U.S. Master’s degree or higher. Each year, USCIS accepts petitions beginning April 1st for a 90 day period. Petitions are subject to random lottery selection for review and adjudication. If the application is approved, the H-1B visa will be valid for use beginning October 1st. If an individual is already in the U.S., they can request a change of status with the H-1B petition to become valid on this new date. Upon approval, if someone departs the U.S. or has not yet entered the U.S., the applicant must attend a visa appointment at a U.S. Consulate or Embassy abroad (unless Canadian) before they can enter the U.S. on H-1B status.
Berardi Immigration Law represents several individual and corporate entities that are exempt from the H-1B numerical cap. H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization are not subject to this numerical cap.
Prerequisites to Filing an H-1B Petition
There are numerous obligations of an H-1B employer that must be considered:
- The petitioner must be a viable entity that can pay the applicant the prevailing wage for someone in a similar position in the location where the work is primarily performed.
- A Labor Condition Application (LCA, or ETA Form 9035) must be certified by the Department of Labor (DOL) before the petition is submitted to USCIS.
- The employer must also document compliance with the LCA requirements in a Public Access File (PAF). The LCA and PAF contain standard attestations that the employer must make, as well as basic wage and location information about the proposed H-1B employment, including rate of pay, period of employment, and work location.
What is Dual Intent?
An individual may apply for permanent residency (green card) and hold H-1B nonimmigrant status simultaneously. Most non-immigrant visas require individuals to prove that they do not intend to stay in the U.S. permanently. The H-1B Visa is an exception because it allows individuals to work temporarily in the U.S., and also allows them to pursue a green card at the same time without violating their visa status.
There are many benefits of having dual intent. H-1B holders can apply for a green card, likely through the PERM process, while remaining in legal status. H-1B holders are also allowed to travel internationally with a pending green card, as long as they have an H-1B Visa stamp. Lastly, for some non-immigrant work visas, there is a requirement to prove ties to their home country, but an H-1B holder does not have to prove any ties to their home country.
Dependents of H-1B Visa Holders
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. There are some limitations for H-4 Visa holders. They are not automatically permitted to work, and must file an application requesting an EAD (Employment Authorization Document) once they do become eligible. The status of the H-1B holder is contingent on that of the H-4 Visa holder; if the primary holder’s employment is terminated, the H-4 becomes invalid. Lastly, if a spouse on H-4 status wants to pursue H-1B employment, they must go through the H-1B lottery process. Those on H-4 status only become eligible for work authorization once the H-1B-holding spouse has completed the preliminary steps of the green card process.
How to Apply For an H-1B Visa
- Find a U.S. Employer to Sponsor You
- The job must be a specialty occupation requiring a bachelor’s degree or higher in a related field
- Have your Employer register for the H-1B Lottery
- Employers must register online on behalf of the employee
- If selected, the employer can proceed with the petition
- Employer Files Labor Condition Application and Form I-129
- LCA ensures that working conditions and wages are fair
- I-129 Form includes information about the accepted job offer, and is
- Wait for Processing
- The petition will be processed by USCIS within a few months (or 15 business days with premium processing)
- If approved, you will receive a Form I-797 Approval Notice
- Apply for an H-1B Visa (if outside the U.S.)
- If you are outside the U.S., you will need to apply at a U.S. embassy/consulate for an H-1B visa stamp prior to H-1B entry to the U.S.
- This requires completing Form DS-160, scheduling an interview at the embassy, and bringing the necessary documentation needed for the interview
- If you are outside the U.S., you will need to apply at a U.S. embassy/consulate for an H-1B visa stamp prior to H-1B entry to the U.S.
- Enter the U.S. and Start Work
- If approved, you may enter the U.S. 10 days before your job start date
What is the Period of Stay For an H-1B Visa Holder?
An H-1B nonimmigrant may be admitted for an initial period of up to three years. Extensions may be granted, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21). Specifically, completion of the preliminary steps of the green card process allows an H-1B worker to extend their H-1B status beyond the 6th year.
Why Work With Berardi’s H-1B Visa Lawyers?
At Berardi Immigration Law, we pride ourselves on our robust H-1B visa practice. Our experienced team has successfully handled petitions for a diverse array of professionals across numerous industries, demonstrating our versatility and deep understanding of the H-1B process. We excel at navigating the complexities of H-1B applications, ensuring our clients receive trusted guidance throughout their journey.
Our firm stands out for its adeptness in identifying cap-exempt opportunities, a crucial skill in today’s competitive immigration landscape. We routinely file H-1B petitions year-round for institutions of higher education, research foundations, and physicians, leveraging these cap-exempt categories to our clients’ advantage. Furthermore, our expertise extends to managing dozens of H-1B change of status applications, facilitating smooth transitions for professionals moving between jobs. At Berardi Immigration Law, we’re committed to providing seamless, efficient, and effective H-1B visa services tailored to each client’s unique needs.
H-1B Specialty Occupation Visa: Frequently Asked Questions
What is an H-1B visa?
The H-1B is a nonimmigrant classification that permits U.S. employers to sponsor foreign nationals for temporary employment in specialty occupations. A specialty occupation requires the theoretical and practical application of highly specialized knowledge and normally requires at least a bachelor’s degree, or its equivalent, in a directly related specific specialty.
Who is eligible for an H-1B visa?
Eligibility generally requires a bona fide offer of employment in a specialty occupation and evidence that the beneficiary possesses the required degree or its equivalent. The beneficiary must also hold any state license, registration, or other authorization required to fully perform the occupation, where applicable. The U.S. employer files the H-1B petition on the beneficiary’s behalf.
What counts as a “specialty occupation” for H-1B purposes?
A specialty occupation is a position that requires the theoretical and practical application of highly specialized knowledge and normally requires at least a bachelor’s degree or equivalent in a directly related specific specialty. Whether a position qualifies depends on its actual duties and degree requirements, not merely its title or industry. Examples may include certain engineering, software development, accounting, architecture, scientific, and healthcare occupations.
What is the H-1B cap, and how many visas are available each year?
Congress generally limits new cap-subject H-1B classifications to 65,000 per fiscal year, with an additional exemption for up to 20,000 beneficiaries who earned a qualifying U.S. master’s degree or higher. Certain H-1B numbers are also reserved under free-trade agreements with Chile and Singapore.
How does the H-1B lottery work?
Prospective petitioners submit electronic registrations during USCIS’s designated registration period. If USCIS receives enough registrations to exceed the available cap numbers, it conducts a beneficiary-centric random selection process based on each unique beneficiary’s valid passport or travel-document information. A beneficiary selected through the process may have an H-1B cap petition filed by each eligible employer that submitted a valid registration for that beneficiary.
Are any H-1B petitions exempt from the cap?
Yes. Petitions filed by institutions of higher education, nonprofit organizations affiliated with a university, and nonprofit or government research organizations are generally exempt from the annual cap, as are certain other specific categories.
What is a Labor Condition Application, and why does the H-1B require one?
A Labor Condition Application is filed with the U.S. Department of Labor. Through the LCA, the employer makes attestations regarding wages, working conditions, notice, and labor disputes. The employer must pay at least the required wage—the higher of the actual wage paid to similarly employed workers or the prevailing wage for the occupation in the area of intended employment. A certified LCA must generally accompany the H-1B petition.
How long can I stay in the U.S. on an H-1B visa?
H-1B status is typically granted in increments of up to three years, with a total maximum stay of six years. Certain individuals in the process of obtaining employment-based permanent residence may be eligible for extensions beyond the six-year limit.
Does the H-1B visa allow dual intent?
Yes. The H-1B is one of the few nonimmigrant categories that explicitly recognizes dual intent, meaning H-1B holders can pursue permanent residence (a green card) while maintaining valid H-1B status, without that pursuit being held against them.
Can my spouse and children accompany me on an H-1B visa?
Spouses and unmarried children under 21 may accompany or follow to join an H-1B worker in H-4 status. Certain H-4 spouses may apply for employment authorization, including spouses of H-1B workers who are the beneficiaries of approved Form I-140 petitions or who have received qualifying H-1B extensions. Employment may begin only after USCIS approves the Form I-765 and issues the EAD.
Can I change employers while on an H-1B visa?
Yes. Certain H-1B workers may begin employment with a new H-1B employer as soon as USCIS receives a properly filed, nonfrivolous petition, without waiting for approval. To qualify for H-1B portability, the worker must generally have been lawfully admitted, the new petition must be filed before the worker’s authorized period of stay expires, and the worker must not have engaged in unauthorized employment after admission.
What is the H-1B registration fee and application cost?
Employers pay several government filing fees as part of the H-1B process, including the electronic registration fee, base filing fees, and additional fees depending on employer size and whether premium processing is requested. Given that these fees and related litigation have shifted in recent periods, employers should confirm current fee amounts before filing.
How is the H-1B visa different from the E-3 visa?
Both classifications cover specialty-occupation workers and generally require a certified LCA. The E-3 is available only to Australian citizens and has a separate annual allocation that has historically remained available. The H-1B is open to nationals of any country, but new cap-subject H-1B cases generally require electronic registration and selection. Cap-exempt H-1B petitions do not require lottery selection.
What documents are required for an H-1B petition?
Typical requirements include a job offer letter describing the specialty occupation, evidence of the beneficiary’s qualifying degree or equivalent experience, a certified Labor Condition Application, the employer’s Form I-129 petition, and supporting evidence establishing the employer-employee relationship and the position’s specialty occupation status.
What are common reasons an H-1B petition is denied or challenged with an RFE?
Common issues include failure to establish that the offered position qualifies as a specialty occupation; failure to show that the beneficiary’s degree is directly related to the position; insufficient evidence of equivalent education or experience; discrepancies among the LCA, petition forms, support letter, and supporting evidence; questions concerning the bona fide nature of the position; insufficient evidence that specialty-occupation work will be available for the requested validity period; and issues involving third-party placements or worksite compliance.
Can an H-1B visa lead to a green card?
Yes. Because the H-1B allows dual intent, many H-1B workers are sponsored by their employer for employment-based permanent residence while continuing to work in H-1B status. The specific pathway and timeline depend on the applicant’s category and country of birth, and should be discussed with an experienced immigration attorney.
How far in advance should I apply for an H-1B visa?
Because of the annual registration period, lottery selection process, and subsequent petition filing, employers should begin planning well before the registration window opens (often six months to a year ahead for cap-subject cases) to ensure all documentation is ready if selected.
