H-1B Visa category consist of three variations including H-1B1 (Singapore & Chilean reserved), H-1B2 (DOD co-operative research & development projects), and H-1B3 (Fashion models of distinguished merit). We only discuss, conduct research & advocacy, and any services for general H-1B specialty occupation category. As per USCIS statistics, each year at-least 75-85% of cap-subject applicants and beneficiaries of H-1B are STEM based graduates. Even though the process for application may look straight-forward, there are several nuances every petitioner need to be aware. It is in your best-interest to hire an attorney to complete the application on your behalf or risk a greater chance of Request For Evidence (RFE) which may prolong the processing of H-1B application from few months to at-least an year. If you appeal the rejection by USCIS field office to Administrative Appeals Office (AAO), it will be more than one (1) year from initial application to reach a decision. Also, as per recent guidance by USCIS, they may reject applications outright for lack of supporting documentation for initial evidence without any RFE. Below, i did not discuss about the fees to be paid by the H-1B sponsoring employer to USCIS (because it depends on employer dependency on H-1B Visa work force and total full-time employee number) along with premium processing availability. Also, below information is informational only on basis topics of H-1B. If you would discuss you case further, then please contact us by email or call for appointment.
What is H-1B Visa?
H-1B visa is available to “qualified” individuals who come to the United States or in the United States on another non-immigrant status such as F-1, H-4 visa etc to work in “specialty occupation” for whom a Labor Condition Application (LCA) has been approved by the Department of Labor prior to the application to USCIS.
LCA involves certifying that the perspective employee for H-1B visa purposes will not replace any US person currently holding the job and could not find a “qualified” US person. LCA also requires sponsor employer to pay “prevailing wage” at the geographical work location for the H-1B sponsored employee. Level I-IV wage levels are assigned depending on the amount of pay received by the sponsored employee.
What is "qualified" and "specialty occupation" meaning?
Qualified means the beneficiary has a U.S. bachelor’s degree (or equivalent foreign* degree). Another statutory meaning for Qualified means having education, specialized training, and /or progressively responsible experience equivalent to the required degree in positions directly related to the specialty.
Specialty occupation means an occupation that requires:
1. Theoretical and practical application of a body of highly specialized knowledge and 2. Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
* Foreign bachlor’s degree beneficiary employer required to have certified credential service for US education equivalency purposes.
Cap Subject & Cap Exempt meaning?
Cap Subject petitions: Every year starting April 1st, USCIS starts receiving applications from sponsoring employers. Under H-1B statutory limit, 65,000 visas are assigned to individual beneficiaries with at-least bachelor’s degree or more. 20,000 additional visas are assigned to individuals having a graduate (master’s) level degree from US universities. If the number of petitions are more than statutorily allocated limit, then a visa lottery will be conducted by USCIS. The petitions that are not picked in the lottery will be returned including the fees sent by sponsoring employers. Starting 2020, USCIS is planning to implement a pre-registration for H-1B lottery without any need to send all the documentation and fee before the lottery gets picked-up. Ideally, only H-1B petitions that got picked in the lottery will send the documentation along with the requisite fees.
Cap Exempt petitions: Institutes of Higher education such as universities, non-profit organizations or entities related to or affiliated with Universities by contract or control by shared ownership, Government research organizations, or other non-profit research organizations can file cap exempt petitions round the year without any limitation.
Other Cap Exempt: Once Cap subject petition gets picked in the lottery, the beneficiary is exempt for counting towards Cap purposes. Therefore the following petitions are exempt for counting towards cap:
1.Continuation of previously approved employment without change with the same employer. 2. Change in previously approved employment. 3. New concurrent employment. 4. Change of employer, and 5. Amended Petition.
Visa Validity & Timing Restrictions
H-1B visa is usually granted in three (3) year intervals for a total statutory maximum of six (6) years. However, these days USCIS is granting H-1B visa for a shorter period of time than three (3) years especially for third (3rd) party contract workers or for employment placement agency employers. USCIS is requiring employers to provide support letters or work order from third (3rd) party clients stating the education requirements for the job, nature of duties, and length of the project.
H-1B visa can only be granted for 6 years. Once a beneficiary completes six (6) years on H-1B, either of the two things need to happen:
1. The employer should have initiated the process for Permanent Residence (Green Card) sponsorship for the beneficiary employee. At least the labor and I-140 should be approved by the time the H-1B beneficiary reaches six (6) years. In such a case, USCIS gives additional work authorization in “intervals” until you get your Visa number (usually labor application date) “current date” based on where you were “born*.”
2. At the end of six (6) “consecutive” years of stay within the United States on H-1B visa, the beneficiary or foreign worker may return for a new eligible H-1B six (6) year term only after spending one (1) year outside the United States. Time spent on other visas such as L-1,L-2, or H-4 derivative status will not count towards six (6) year limit.
* Born: There is a per-country limit on the number of visas allocated each year for any immigrant visa category. If you happen to be born in a country that has high population, and good immigration numbers to USA, your wait time for permanent residence can be anywhere from more than half a decade (if are very lucky) and further! It is not who you are “sometimes,” determine your destiny, goals, and freedom in life, but where you were born!
Problems with "Speciality Occupation?"
As per latest USCIS Statistics, majority of the Request for Evidence (RFE) query that the proffered position is not a “specialty occupation.” Even though, the beneficiary has at-least a bachelor’s degree, for “Specialty Occupation” purposes, question is whether the position requires a person with at-least a bachelor’s degree. Job duties also play a major role in determining the specialty nature of the job. Some of the I.T. related Occupational codes, percentage (%) job education requirements are lower for some than the other. We have an attorney in-house who is also an engineer with some experience to resolve any issue you may have faced. To discuss further about your case or issue, please contact us by email or phone for personal appointment with attorney.
Employer-Employee Relationship Issues
Sponsoring H-1B employer need to maintain control over the employee at all times. Placement companies who send their employees to 3rd party sites face this issue of employer-employee relationship. As the employer do not have a say in the day-to-day activities or control on work-flow of the project they face this issue. However, you may overcome this problem by proper documentation showing control and help of an attorney. To discuss further about your case or issue, please contact us by email or phone for personal appointment with our in-house attorney.