Professionals (H-1B)

The H-1B visa program is the most well-known of all temporary work visa programs. H-1B visas are available for U.S. employers hiring skilled professionals to work in “specialty occupations” that normally require highly specialized knowledge normally acquired through attainment of a related four-year college degree.

Qualifications: The Position and The Individual

The Position

A position is considered a specialty occupation for H-1B purposes if it meets one of the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations in terms of size and operations;
  3. The employer normally requires a bachelor’s degree or its equivalent for the position;
  4. The position and job duties are so specialized and complex that to perform these duties, attainment of baccalaureate or higher degree is generally needed.

The Individual

An individual may qualify for H-1B status if he/she:

  1. Holds a U.S. baccalaureate or higher degree from an accredited college or university related to the specialty occupation;
  2. Holds a foreign degree determined to be equivalent to a U.S. baccalaureate or higher degree from an accredited college or university related to the specialty occupation;
  3. Possesses an unrestricted state license to practice in the profession;
  4. Possesses education, specialized training and experience that are equivalent to the completion of a U.S. baccalaureate or higher degree from an accredited college or university, and have recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

Individuals Not Possessing a Baccalaureate or Higher Degree

If an individual does not possess a baccalaureate or higher degree from an accredited college or university related to the specialty occupation, the person must show he/she possesses the equivalent through any combination of college-level education, experience and/or personal accomplishments.

The USCIS general rule provides that three years of progressively more specialized training and/or work experience is equivalent to one year of college-level training an individual lacks. Any combination of college-level academic studies and experience may be utilized in this calculation.

H-1B Visa Numerical Limitations (H-1B Quota)

Under current law, 65,000 new H-1B petitions may be approved each U.S. government fiscal year (October 1 to September 30). This number is reduced by 6,800 H-1B visas reserved for nationals of Singapore and Chile. There are an additional 20,000 H-1B petition numbers available for graduates from U.S. masters and doctoral programs

Only H-1B petitions for new employment are counted against these caps. Extensions of H-1B status, amended H-1B petitions and H-1B changes of employer petitions are not subject to the cap. These caps do not apply to H-1B petitions submitted by institutions of higher educations and related non-profit entities, non-profit research organization and U.S. governmental research organizations.

If an H-1B cap is reached, the USCIS will announce a lottery to select the petitions that will be reviewed and those that will be rejected.

H-1B Petition Procedures

There are two steps involved in an H-1B petition. The first step is obtaining a certified Labor Condition Application (LCA). The second step is filing an H-1B petition with the USCIS.

The Labor Condition Application (LCA)

A certified Labor Condition Application (LCA) must be obtained from the U.S. Department of Labor (DOL) prior to filing an H-1B petition with the USCIS. Employers are required to attest to the following:

  1. Employer will pay the H-1B worker wages at least equal to the actual or prevailing wage level for the occupational classification at the place of employment, whichever is greater (the “required wage”) as determined at the time of filing the application;
  2. The employer will provide working conditions for the H-1B employee that will not adversely affect the working conditions of workers similarly situated;
  3. There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment; and
  4. Notice has been given to the bargaining representative or, if there is no bargaining representative, a notice of the H-1B filing has been posted in at least two conspicuous locations at the place of employment for a period of ten business days.
  5. Employer is not “H-1B Dependent” or a Willful Violator.

An H-1B Dependent Employer is defined as an employer who employs

  • 25 or fewer full-time equivalent (FTE) employees and more than 7 H-1B employees; or
  • Between 26 and 50 FTE employees and more than 12 H-1B employees; or
  • At least 51 FTE employees and the number of H-1B employees are equal to at least 15 percent of the employer’s FTE employees.

If an employer is determined to be an “H-1B Dependent Employer” or “Willful Violator,” the employer is subject to additional obligations, record-keeping burdens and liabilities such as:

  1. Employer must attest that it has not displace any U.S. workers within its workforce;
  2. Employer must attest that it has not caused a secondary displacement of any U.S. workers at another employer’s worksite; and
  3. Employer must attest that it made good faith effort to recruit and hire U.S. workers for the job.

USCIS H-1B Petition

An H-1B petition may be filed up to 6 months prior to the commencement date of the contemplated H-1B employment. Upon approval of the change of status application, the USCIS issues a Form I-797 Approval Notice.

Validity of H-1B Visas

As a general rule, H-1B visa holders are allowed to remain in the United States in H-1B status for no more than 6 years. H-1B petitions are normally approved in 3 year increments. An H-1B visa holder who spends more than 6 months per year outside the United States is exempt from the 6 year limitation.

Following the 6 year period in H-1B status, a person must spend 365 days outside the United States before being eligible for H-1B status again. However, there are exceptions to the six year rule that allow H-1B visa holders to remain in the United States in H-1B status longer than six years.

Extending H-1B Validity Past the 6 Year Limit

Under the American Competitiveness in the Twenty-First Century Act (AC21), an H-1B visa holder main remain in the U.S. past the 6 year limit if an employer files either a PERM Labor Certification application or I-140 Immigrant Visa Petition prior to the H-1B visa holder reaching his/her 5th year anniversary in H-1B status.

These H-1B extensions are granted in 1 year increments. However, if an immigrant visa petition is approved and the H-1B visa holder is not able to file an adjustment of status application for U.S. lawful permanent residence due to quota backlog, H-1B extensions may be granted in 3 year increments.

Termination or Resignation

If an employer fires an H-1B worker before the worker’s status expires, the employer is responsible for offering to pay the cost of a one-way coach class ticket to the worker’s last country of residence. This protection does not apply to H-1B workers who resign prior to their visa’s expiration. It is important to note that employment is typically “at will,” which means that an employer can terminate an employee for any reason or no reason at all.

In the wake of an involuntary termination or voluntary resignation, H-1B workers have 3 options:

  • Apply for a change of status under a different nonimmigrant classification (in which case a transfer petition must be filed within 60 days of the last day of employment);
  • Obtain employment with another company; or
  • Depart Leave the U.S.

According USCIS regulations published in 2016, H-1B workers have a 60-day grace period to change or extend their status or to change employers after losing employment.

H-1B Dependents

The spouse and all unmarried children under age of 21-years old may receive H-4 visas. These family members may attend school in the United States. An H-4 visa holder may not work. However, an H-4 spouse may apply for employment if the H-1B principal has an approved I-140 immigrant visa petition.

Other H-1B Visa Category Points of Interest

  • H-1B employment may be either full or part-time. There are no specified hours a part-time H-1B employee must work. Generally, H-1B part-time employment is for approximately twenty hours per week. If an H-1B employee is authorized to work part-time and the H-1B employer wishes to convert the employee to full-time, an amended petition must be filed with the USCIS before the full-time employment may commence. The same rule applies when converting from full-time to part-time H-1B employment.
  • H-1B visa holders are authorized to attend classes at any educational level. However, studies can only be incidental to H-1B status. USCIS policy allows up to twenty hours per week of studies incident to H-1B status.
  • H-1B visa holders may concurrently work for more than one H-1B employer. However, each authorized H-1B employment can only be part-time. Further, each H-1B employer must file a separate H-1B petition. There are no specified hours a part-time H-1B employee must work. Generally, H-1B part-time employment is for approximately twenty hours per week.