Duvall Law Office P.L.L.C.

H-1B VISA

What is an H-1B Visa?: An H-1B visa is an employment based, non-immigrant visa, which means that at the end of the duration of the visa, the individual would have to return to their home (or other) country.  However, there is a process that can be conducted while the individual is in H-1B status, called PERM Labor Certification, that can lead to Legal Permanent Residence.

An H-1B is for individuals that hold a minimum of a Bachelor’s Degree, or its equivalent, in a field of study in which they seek to be employed in the United States.  For example, if you have a Bachelor’s Degree in accounting, and you have an employer  that seeks to hire and sponsor you for the H-1B, that requires an accountant (or similarly situated position), your degree fits the position.

Duration of the H-1B Visa: An H-1B can be approved for an initial period of up to 3 years.  At the end of the initial period, the individual can apply of an extension for an additional 3 years, for a total of a 6 year period of valid H-1B status. In certain circumstances, if the individual has a Petition for Immigrant Worker pending, the H-1B can be further extended in less than 3 year increments.

Types of University/College Degree that Qualify: As stated above, the minimum requirement is a Bachelor’s Degree or an equivalent to a Bachelor’s Degree.  An equivalent can be a combination of University/College courses and years of work experience in the field of study and for the position being sought to be filled.  It does not have to be a degree obtained from a United States University/College, a foreign degree can qualify.  However, the foreign degree along with the individual’s course transcripts will need to be evaluated by a Credential Evaluation Service to verify that it is (or is not) equivalent to a U.S Degree.  The attorney at Duvall Law Office, will help you with what information and documentation is necessary for a credential evaluation.  Additionally, if you are seeking to combine University/College courses and work experience, a credential evaluation must be conducted.

As stated, the minimum requirement is a Bachelor’s Degree.  Higher degree’s, such as Master’s and PHD’s also qualify for the H-1B and in most circumstances can enhance the chances of obtaining an H-1B Visa (see below on special exemptions for Higher Degrees).

Petition Period and Visa Quotas: The biggest drawback to the H-1B Visa is that currently there is a numerical limit of 65,000 visas available for a “fiscal year”.  The fiscal year begins on October 1 of each year.  With such a limit on visas in this category, there are sometimes many more individuals that apply for the H-1B and the limits do not allow for all Petition’s to be accepted.  For example, when the time period opened for Petitions last year, for the 65,000 available visas, over 100,00 Petitions were received by the USCIS.  In that event, a lottery was conducted to randomly choose 65,000 Petitions that would be processed.  The remaining Petitions were returned to the applicant.

The USCIS begins accepting Petitions for H-1B Visas for Fiscal Year 2016, on April 1, 2015. The beginning work date for any accepted and approved Visa, would be October 1, 2015.  You will have to be prepared to file your Petition on April 1, 2015, due to the volume of Petitions that will be received.  Ideally, preparation for putting together an H-1B Petition will begin in January or February, to allow ample time to put together a complete, ready to file Petition.  This period may even be started sooner if you have to have a credential evaluation conducted.  Duvall Law Office, can prepare your Petition even as late as mid March, but it is highly recommended that it be started much sooner.

Again, due to the likelihood that more that the 65,000 allotted Petitions will be filed, the USCIS will conduct a random lottery to choose which 65,000 they will process.  Although the USCIS says that they will accept Petitions for a certain period of time (usually the first week opening) and then conduct the random lottery, it is always highly recommended that the Petition be filed as soon as the acceptance period opens (April 1^st) to possibly enhance the chances that it will be chosen.

In addition to the 65,000 Visas that are allotted for individuals hold the minimum Bachelor’s Degree requirement, there are an additional 20,000 Visas that are allotted for individuals that hold a Master’s Degree or higher.   For those who hold such a degree, and where the employer requires such degree for the position being hired for, the Petition would generally be filed in this special category.  The reason is, USCIS receives substantially less of these types of Petitions than it does in the general 65,000 category, so chances of acceptance of the Petition are enhanced.   Even with this, individuals that hold these degrees are strongly encouraged to have their Petition’s prepared and filed as of the April 1^st date.

When filing the Petition, there is an optional process that can expedite the decision on the Petition.  This is known as “Premium Processing”.  Once the USCIS accepts the Petition for processing, under Premium Processing they will have 15 days to either approve, deny or request additional evidence.  Although there is an extra cost for filing under this process, it is highly recommended to do this in order to get the expedited determination.

Other Qualifications and Terms: An H-1B Visa is what is known as “employer specific”.  This means that the visa holder can only work for the petitioning employer.  If the individual seeks to change employers or is terminated from his/her employment, they will have to obtain a new H-1B for any new employer within a relatively short period of time, to be able to remain in H-1B status.  Additionally, any time used with the prior employer would be counted against the 6 year eligibility period.  You do not obtain a new 6 year maximum period by changing employers.  If you are contemplating changing employers, it is best to consult with Duvall Law Office prior to leaving your present employer so that a new Petition with the new employer can be prepared before leaving your current employment.

In addition to the above qualifications, a Prevailing Wage Determination will have to be conducted prior to the filing of the Petition.  This Determination is submitted to the U.S. Department of Labor.  The purpose is to make sure that the wage offered to the foreign individual is equal to or higher than the industry standard for the particular area of the country where the employment will take place. This ensures that the foreign individual is not being underpaid for the position.

The employer on an H-1B Petition does have some liability under this type of Visa.  If the H-1B employee is terminated from his/her position, the employer is liable to pay that individual’s “reasonable expenses” back to his/her home country. Unless, of course, the foreign individual obtains new H-1B with a new employer.

For this type of Visa, the employer does not have to conduct a search for a qualified U.S. Citizen or Lawful Permanent Resident employee.  The employer can specifically choose to hire a foreign individual for the position offered.

Spouses and minor children of initial H-1B holder will be granted H-4 status.  This allows them to remain in the U.S. with their H-1B spouse or parent and do such things as attend school.  The H-4 dependant however will not be given work authorization (there is a push to change this).  Such spouse or child would have to obtain their own, independent, employment-based Visa.

Path to Lawful Permanent Residency: During the 6 year umbrella that the H-1B Visa holder is here and maintaining status, there is an additional process that can be commenced that will eventually allow the individual to apply for Lawful Permanent Residency.  This process is known as a PERM Labor Certification.  There are several variations of this process (as opposed to the H-1B), and can take several years to complete to the point where the individual becomes a Permanent Resident.  Since this is a long and complicated process, it is best to begin it near the time the individual comes under H-1B status.  Please consult with the attorney at Duvall Law Office for more information on this process