Experienced immigration Attorney processing H1-B Visas

What is an H-1B Visa?

H1-B Visas are for Extensions, Transfers, New Employment, Cap Exempt, and 6th year extensions. Our experienced immigration attorney has successfully filed thousands of cases over the years.

An H-1B Visa (Specialty Occupation) is a temporary work visa that is available to a foreign national who has been offered a job by a US company for services to be performed in the United States. Commonly this type of immigration visa is used by IT companies, healthcare corporations, and other service industries.

H-1B Visas are available to 65,000 workers each year, with an additional 20,000 visas reserved for foreign graduates of U.S. Master’s programs. For example, a graduating student in F-1 Status can usually apply under H-1B Cap or they can work in OPT (Optional Practical Training) and apply under the next year’s cap.

The H-1B visa allows you to stay and work in the U.S. for an initial period of three years, but not to exceed six years. In certain cases where a position requires licensure (PT, SLP, OT) and the applicant does not possess the license the USCIS will grant a maximum period of one year of H-1B status to allow the candidate to apply and obtain their license. An H-1B extension will have to be filed.

In certain cases when one has a PERM Labor Certification pending or I-140 immigrant petition approved you may be eligible to extend beyond the maximum 6 year time limit. H1-B Visa holders can travel in and out of the United States, when a H-1B Visa has been granted by a United States Consulate. Spouses and unmarried children under the age of 21 may receive H4 Dependent visas as well.

How do I Qualify for an H-1B Visa?

In order to qualify for an H-1B visa, candidates should generally meet the following criteria:

  • Candidate must hold a bachelor’s degree or higher degree or its equivalent as well as position requires this degree to perform;
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • 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.
  • There are many different kinds of industries which sponsor foreign nationals for H-1B status including:
    • Computer Systems Design and Engineering
    • Colleges, Universities, and professional Schools
    • Scientific and Management services
    • Engineering firms
    • Electrical firms
    • Software Design and Publishing
    • Hospitals and Physicians

In addition to the above we recommend that if you hold a 3 year degree you contact our experienced immigration attorney. Applicants who hold 3 year degrees must also hold at least 3 years of relevant professional experience to their course of study in order to qualify for H-1B.

How Do I apply for an H-1B Visa?

In order to apply for an H-1B visa, an employer must make a job offer and be willing to sponsor the alien by filing an immigration petition with the USCIS. Generally in business immigration petitions, individuals cannot apply for an H-1B independently.

For most Change of Employers (Transfers) and extensions an immigration lawyer can assist you with this filing at any time. However for new employment offers we recommend you speak to a qualified immigration attorney as you may be subject to the H-1B Cap. Some sponsors may be exempt from the cap.

Global Law Centers serves the Orange County and Southern California areas specializing in business immigration and H1-B visas throughout major cities like Irvine, Anaheim, Santa Ana, Tustin, and Orange. Please contact our office for a free consultation if you are interested in filing for this type of visa.

Can an H-1B visa holder bring their family members to the U.S.?

Spouses and unmarried children under the age of 21 can apply for H-4 Dependent visas. Their maintenance of status in H-4 non immigrant status is wholly upon the principal H-1B holders status.

If the conditions of employment change for principal H-1B holder after they are in the U.S. then an Application to Extend/Change non immigrant Status (I-539) may have to be filed with the USCIS. Please consult with a qualified immigration attorney if you are currently are on an H-1B business immigration visa and you have dependents in the U.S. under your status.

Is there a limit on the number of H-1B visas issued?

Yes. Under current law, there is an annual limit of 65,000 H-1B visas. Please take note that there are currently 6,800 numbers set aside for citizens of Singapore and Chile so the actual total number of visas for all other countries is actually 58,200.

In addition to the regular H-1B Cap cases for work visas, there are 20,000 extra H1-B visas specifically set aside for graduates of U.S. masters degree (or higher) programs. For example if you are an F-1 student graduating from a Bachelor’s Degree program then you will be subject to the 58,200 regular H-1B Cap, however if you are an F-1 Student graduating with a Master’s or Doctorate you can apply in the Master’s Cap.

The earliest you can apply for an H-1B Visa is April 1. Please note that the H-1B Cap is met almost immediately every year. U.S. Citizenship & Immigration Services receives well over the 65,000 and 20,000 designated numbers. As such a Lottery is run every year. Please read further below for information on the H-1B Lottery.

What is the H-1B Lottery?

Each year the USCIS receives more H-1B new employment filings than the allotted 65,000 visas permitted. As a result U.S. Citizenship & Immigration Services is required to run a random lottery selection to determine which petitions will be processed and which petitions will be rejected.

Petitions are assigned random receipt numbers and then an electronic lottery system will randomly select numbers to process. These are the cases that make it into the H-1B cap. If a number is not chosen then the petition has not been selected for processing, U.S. Citizenship & Immigration Services will return the petition as well as any filing fees submitted with the filing.

It is important to have an experienced immigration attorney assist with the H-1B process as sometimes the applicant’s only means of staying in the U.S. will be to have their petition accepted into cap. It is vital that an immigration lawyer experienced in business immigration provider alternative means of maintaining non immigrant status should the petition be rejected. Our office offers free consultations should your petition be rejected under the cap.

How long can I stay in H-1B status?

Under current law, an individual can be in H-1B status for a maximum period of six years at a time. After that time an individual must remain outside the United States for one year before another H-1B petition can be approved.

Certain individuals working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain individuals may obtain an extension of H-1B status beyond the 6-year maximum period of stay (discussed below).

Recapture of Time Spent outside U.S.

An H-1B nonimmigrant who has been outside of the United States may be eligible to recapture time for any time spent outside of the U.S. during their six-year period of stay. For example, an H-1B holder from India who has been in the U.S. for 6 years but spent every summer on holiday in India may be able to recapture all the time they spent on vacation whether it be 2 weeks to 1 year.

If they spent any time outside of the U.S. this can be recaptured. In addition, the spouse and children under 21 of a principal alien who recaptures H-1B or L-1 periods may receive periods of H-4 or L-2 stay coextensive with that of the principal alien.

AC-21 Extension of H-1B status beyond 6-year of maximum period of stay

Section 106 (a) of the American Competitiveness in the 21st Century Act of 2000 (AC21) allows an H-1B worker to seek extensions in one-year increments beyond the six-year period when a labor certification application of an EB immigrant petition (I-140 immigrant petition for and extraordinary ability, multinational manager, outstanding researcher, or national interest case) has been filed at least 365 days before the expiration of six years in H-1B status.

This benefit also is available if the worker ported to a new employer. Another Aytes memo states that USCIS does not require the labor certification or petition to be from the same employer requesting the extension.

If the labor certification or petition was filed less than 365 days at the time of filing for the extension, consider filing an extension to recapture time abroad and/or have the worker leave the United states for the required time, if possible, since the six-year period only includes the time the foreign national is physically present in the United States in H-1B status.

The Aytes memo set the procedures for calculating the maximum period of stay for H-1B and L-1 non immigrants. The time limit is to be computed from the entry date (as noted on the foreign national’s passport and I-94), not the date of the petition approval.

The foreign national is not required to be in H-1B status or physically present in the United States to be granted the one-year extension under AC21 §106 or the three-year extension under AC21 §104(c). However, the H-1B extension application must be filed while the person is physically present in the United States, since USCIS will otherwise likely deny the extension.

What are the filing fees for an H-1B visa?

There are three government filing fees that usually come up in H-1B cases. First, the base filing fee for an H-1B case is applicable in every case. As of publication of this article, that fee is $325. This is for Form I-129 Petition for Nonimmigrant Worker.

The Second, is the worker retraining fee or the ACWIA (American Competitiveness and Workforce Improvement Act). For companies with more than 25 employees a fee of $1,500 is written to the U.S. Department of Homeland Security. For Employers with less than 25 full-time equivalent employees in the U.S. (including employees of affiliates and subsidiaries) are only required to pay $750.

Third, there is a required $500 fraud prevention and detection fee. This fee is not required for an extension of H-1B status with the same employer.

For applicants seeking faster processing there is an additional form I-907 Request for Premium Processing. This requires an additional $1225 premium processing fee to be guaranteed an answer within 15 days.

Our immigration lawyer proudly provide H-1B business immigration services in Orange County, Anaheim, Irvine, Aliso Viejo, Tustin, and Orange. Please visit our H-1B More Info page for additional H-1B Facts. If you have a question you can always visit our H-1B FAQ.