H-1B VisaMarch 23, 2013

The H-1B visa is the primary US work visa made available to people from all over the world. The US government introduced the H-1B visa program to offer and enable skilled international professionals and international students, from all over the World, the opportunity to live and work in the USA. The H-1B is the most popular and sought after US work visa and US immigration requires every foreign national to obtain a visa in order to legally work in America. One of the main advantages of the H-1B visa is that it is a ‘dual intent’ visa which means that you can apply for a Green Card (legal permanent residency). 

H-1B Filing Date and Cap Limit

The H-1B cap-subject filings for FY14 can be filed on April 1, 2013. These filings can continue until the H-1B cap (65,000) limit is met. The significance of April 1st is that it is six months in advance of the first day of FY14, which is October 1, 2013. The law allows H-1B cases to be filed up to six months before the requested start date for employment. The first allowable date of employment is October 1, 2013, the first day of FY14. H-1B’s are granted for an initial term of up to three years and can be extended to a maximum of six years.

Additionally, there is an exemption from the 65,000 annual quota that is available to the first 20,000 H-1B petitions filed each fiscal year for beneficiaries who have been granted masters or higher degrees by U.S. institutions of higher education. In order to be considered for this, petitioning employers must specifically request consideration under the advanced-degree exemption.

Eligibility

The US H-1B visa is designed to be used for staff in specialty occupations. The job must meet one of the following criteria to qualify as a specialty occupation:

• Have a minimum entry requirement of a Bachelor’s or higher degree or its equivalent.
• The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree.
• The employer normally requires a degree or its equivalent for the position.
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

• Have completed a US bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university.
• Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation.
• Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
• Have education, training, or experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Filing Process and Time Frame

1. File the Labor Certification Application (LCA)

This is a form that contains information about the H-1B Sponsoring Company.

2. LCA is approved

Department of Labor (DOL) will return a certified copy to the H-1B sponsoring company.

3. Post Notice

The sponsor company must post notices at two conspicuous places at their business of the H-1B visa filing for 10 days or provide notice of the filing to the collective bargaining representative for their employees.

4. H1B Petition assembled & filed with appropriate USCIS Service office

The filing must include the required forms, fees, documents and information; form I-129, education & experience evaluation & documents, training certificates, professional memberships, resume, employment agreement and letter of support.

5. Wait for the H1B petition to be processed

Processing times vary depending upon service center and the visa. It could be a few months wait.

6. Receipt issued by USCIS

The petitioner (sponsoring company) is sent a receipt by the USCIS Service Centre which bears a 9 digit reference number pertaining only to that particular case, H-1B processing times and general information about the petitioner and foreign worker.

7. A notice is generated by the prospective employer

Notice mailed to the applicant notifying him/her of this receipt and outlining information on processing times.

8. Petition Approval

Generally a case will be approved within or on the designated time frame outlined in the USCIS receipt. An approval notice (Form I-797) is issued to the petitioner. The Form I-797 shows dates of validity for the foreign worker to work in H-1B status for the petitioner.

Ryan A. Hintzen

Attorney

The Hintzen Law Firm, PLLC