Experienced H-1B Visa Attorney
What is H-1B visa?
H-1B nonimmigrant work visa is for “specialty occupations” in the United States meaning that an employer’s H-1B position in the U.S. must require the theoretical and practical application of a body of highly specialized knowledge and a minimum of a bachelor’s degree (or its equivalent) in a specific specialty. Some professions also require an H-1B beneficiary to hold an U.S. State or local license authorizing the beneficiary to fully practice the specialty occupation. H-1B visa beneficiaries must qualify for the requirements of the H-1B position.
H-1B visa has annual quota – some H-1B petitions are subject to the annual quota while others are exempt from the annual quota.
H-1B has an annual quota (cap) of 85,000, which is far less than the demand of U.S. employers. In 2020, USCIS implemented an electronic registration system for H-1B cap. Employers must first register via United States Citizenship and Immigration Services’ (USCIS) electronic registration system during an annual open registration period (typically in March) for those they wish to sponsor for a beneficiary that is subject to the H-1B cap. USCIS then conducts lotteries as needed to select from the registrations to allocate the annual cap numbers. If a registration is selected in the lotteries, the employer can then file an H-1B petition for that registrant during a designated filing period, and if the H-1B petition is approved by USCIS, the earliest the beneficiary can start employment with the H-1B sponsoring employer is October 1st of that year.
However, not all H-1B petitions are subject to the annual cap. For example, an employee who was selected in the H-1B lotteries in the past 6 years and is currently in valid H-1B status is not subject to the H-1B cap when renewing the H-1B status with the same sponsoring employer. H-1B petitions may also be portable from one job to another without being subject to the H-1B cap, and the beneficiary may begin to work under the new, cap subject petition upon USCIS receipt of a properly filed H-1B petition from the new employer, or as of the requested start date on that petition, whichever is later. In addition, institutions of higher education, certain non-profit organizations, or governmental research organizations may qualify as H-1B cap-exempt organizations and they can file H-1B petitions at any time of the year, and if the H-1B cap-exempt petition is approved by USCIS, the beneficiary may begin employment with the cap-exempt sponsoring employer on or after the starting validity date of the H-1B approval notice.
If an H-1B employee is moving from cap-exempt to cap-subject employment, the new employer’s H-1B petition will be subject to the H-1B cap. As long as the H-1B employee continues his/her cap-exempt employment, was previously counted toward the H-1B cap, or otherwise remains cap-exempt, he/she is not subject to the H-1B cap during the same H-1B validity period.
H-1B visa requires a certified Labor Condition Application from USDOL before a petitioning employer can file an H-1B petition with USCIS.
An H-1B petitioning employer must first obtain a certified Labor Condition Application (LCA) with United States Department of Labor (USDOL) and include the certified LCA in the H-1B petition with USCIS.
Change status to H-1B within the U.S. or being admitted into the U.S. under H-1B status.
If the sponsored H-1B beneficiary is within the U.S. in another non-immigrant status, the H-1B petition can request change of status to H-1B within the U.S., and if the sponsored H-1B beneficiary is outside of the U.S., after the H-1B petition is approved by USCIS, the beneficiary may apply for and obtain an H-1B visa (if a visa is required) from a U.S. embassy or consulate abroad and then come to the U.S., and apply to U.S. Customs and Border Protection (CBP) for admission to the U.S. under H-1B status.
Length of H-1B visa.
H-1B specialty occupation generally can have a maximum of 6 years (maximum of 3 years for each term). The 6 year limitation may be further extended in certain circumstances under Sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21). 8 CFR 214.2(h)(13)(iii)(D) and (E).
Family members of H-1B visa holder.
H-1B employee’s spouse and unmarried children under 21 years old may seek admission or petition for H-4 nonimmigrant visa status.
H-1B is also for DOD projects and fashion models.
In addition to H-1B specialty occupation, H-1B also applies to people who wish to perform services of exceptional merit and ability relating the United States Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.
Obtaining and maintaining H-1B visa.
Obtaining and maintaining employees’ H-1B visa and to be in compliance with all relevant laws require the guidance of a qualified and experienced H-1B visa attorney. We specialize in work visa including H-1B visa, work permit, and green card. Call or send us a message to receive the assistance of an experienced and qualified H-1B visa lawyer.