What is an H-1B Visa?

Global Law Centers is an Orange County H-1B Visa attorney located specializing in H-1B Visa and other business immigration visas. Our immigration attorney regularly processes H-1B Visas which are available for jobs which are considered Specialty Occupations. It is a non-immigrant visa that is available to foreign nationals who have been offered a job by a United States company for services to be performed in the United States.

H-1B Visas are available to workers in specialty or professional occupations and industries which includes IT, Engineering, Design, Administrative, Management, and Healthcare occupations. This type of work visa allows one to stay and work in the U.S. for an initial period of three years, but not to exceed six years.

In certain healthcare occupations where one still has not obtained licensure due to not holding a social security number the USCIS will grant an initial period of one-year which must then be extended after licensure is obtained.

One of the benefits of this type of corporate immigration is that the H-1B Visa holder can travel in and out of the United States, when they hold an H-1B Visa granted by a US Consulate outside the US. If you hold a different kind of visa (such as a Student F-1 Visa, or B-2 Visitor Visa) then you will be required to apply for a new H-1B work visa if you travel internationally.

What is an H1B specialty occupation?

A specialty occupation is one that requires theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree (or its equivalent) in the specific specialty.

For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

It is important to consult with a qualified immigration lawyer if you hold a foreign degree that was obtained in three years or less as USCIS will usually only consider degrees with a 4 course of study to qualify as a Bachelor Degree. In certain circumstances U.S. Citizenship & Immigration Services will accept work experience if a degree program falls short of this four year requirement.

Are there any H-1B cap exemptions?

Not every H-1B applicant is subject to the cap. The following scenarios are not subject to the cap:

• Extensions
• Amendments: change in work location, job promotion, company mergers/acquisitions,change in number of hours, and change in job duties
• Change of Employers
• Concurrent Employment: current H-1B worker working concurrently for a new employer
• Non-Profit: workers of institutions of higher education, nonprofit research organizations, and government research organizations
• Physicians taking jobs under State 30 or federal government agency waivers based on serving underserved communities are exempt from the H-1B cap.

When is the best time to apply for an H-1B?

Due to the high number of petitions received by the USCIS every year we highly recommend filing your H-1B petition within the first week of April. In fact, in recent years U.S. Citizenship & Immigration Services has only allowed H-1B petitions to be filed between April 1,-April 7 before they close the filing period. That is just a seven day window to get a new cap subject H1-B filed! For the past 3 years the H1-B cap has been met within this 7 day window with filing numbers as follows:

• 2013 cap reached on June 11, 2013 (85,000 petitions received)
• 2014 cap reached on April 7, 2014 (172,500 petitions received)
• 2015 cap reached on April 7, 2015 (233,000 petitions received)

H-1B Petitions may only be submitted 6 months ahead of the employment start date (meaning, applications with a start date of October 1st may be filed on April 1st).

Can I stay in H-1B status past 6 years?

Yes, in some circumstances. AC21 §104(c) provides that an H-1B worker who has used up the initial six years of stay may be eligible for a three-year extension if the person would be eligible to file for adjustment of status but for the visa quota backlogs. USCIS Associate Director for Operations William Yates clarified in a memo that USCIS has taken the position that the I-140 must be approved for §104(c) to apply.

These extensions can be obtained until the alien’s application for adjustment of status has been processed and a decision is made thereon. The petition for extension must request three years and include a labor condition application covering this period.

If you are approaching your six years maximum time frame for H-1B visa status and are not sure if you qualify for an extension beyond the six year time limit it is essential that you contact a qualified immigration lawyer who can assist you in your immigrant visa options. As with most corporate immigration matters many immigrant visa sponsorships require an employer to have a permanent need for the job offered. Our business immigration professionals can assist you and your company with your immigration goals.

How do apply for an H-1B visa?

In an H-1B visa application, the U.S. employer is called the “petitioner” and the foreign worker is called the “beneficiary”. After an offer of employment has been made, the petition process begins. The first step is for the petitioner to ensure that the worker will be paid the prevailing wage for the occupation in the geographic area where the beneficiary will be employed.

The employer must also be sure that it is not paying less than the actual wage paid to its other employees with similar qualifications. The prevailing wage can be obtained from the Foreign Labor Determination Center (FLDC) or by filing a request for a prevailing wage determination agency with the U.S. Department of Labor.

It can also be determined through a private wage survey. The benefit of relying on the FLDC or a wage determination as issued by the U.S. Department of Labor is that it cannot be challenged later by the U.S. Department of Labor.

Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the U.S. Department of Labor. On this form, the employer must submit the wage to be paid, the prevailing wage, and must make certain attestations. Form ETA 9035 can be filed electronically at the U.S. Department of Labor’s ICert website located at http://icert.doleta.gov/. The LCA takes a minimum of 7 days to be processed.

The certified LCA is submitted to USCIS as part of the H-1B petition package along with documentation of the beneficiary’s qualifications, the petitioner’s type of business, and the type of work the beneficiary will be performing. Each of these will be discussed further below.

What type of evidence is required for H1B?

The H-1B Petition must include evidence that will convince USCIS that:

1. The employer has a legitimate need for a “specialty occupation worker”
2. The position offered is in a “specialty occupation”
3. The prospective employee is qualified for the position

1. The employer’s need
As a general rule, large and well-known businesses do not have much difficulty in showing they have a need for an H-1B worker. Problems can be encountered if the employer is small, or if the business was recently started. In such cases USCIS has requested evidence relating to the stability of the business, such as tax returns and payroll records.

Court decisions have, in the past, said that USCIS is not supposed to examine the financial background of a company. However, USCIS routinely asks for such documentation even for many large employers.

They often justify these requests by stating that a review of the petitioner’s business and finances will assist them in determining if there will be sufficient specialty occupation work for the entire requested duration of H-1B status. The goal of an immigration attorney is to provide U.S. Citizenship & Immigration Services with a full and complete picture of how the Petitioner’s business functions whether large or small require the Beneficiary’s uniquely qualified skill set.

2. The nature of the position
Some jobs, such as lawyers, engineers and professors, and specialized healthcare occupations requiring licensure are clearly definable when it comes to justifying whether they are a specialty occupation.

However many managerial, administrative, and specialized positions are not so simple. Sometimes USCIS has difficulty making a clear decision in these situations, and an experience immigration lawyer will be capable of clearly defining and describing the occupation to the Service. In addition, The U.S. Department of Labor has the following sources which are helpful in this area:

1. The Occupational Outlook Handbook lists general educational requirements for entry into certain areas of employment. U.S. Citizenship & Immigration Services will often utilize this database to assist them in determining specific degree requirements for specialty occupations.
2. The O*Net database which provides comprehensive information on key attributes and characteristics of workers and occupations. The O*NET database houses this data and O*NET Online provides easy access to that information.
3. The Dictionary of Occupational Titles contains a list of job titles and lists job duties that are associated with each.

While the website and the books are helpful in documenting a case, neither is binding on USCIS.

In cases where the specialty nature of the position is not evident, the burden of proof is on the Petitioner to demonstrate that it is a specialty occupation. There are many types of evidence which may used to do so. Such evidence includes, but is not limited to, trade and association publications, affidavits from authorities in the field, and evidence of the Petitioner’s own hiring history and employment of others in the same position.

If the occupation is little known or is relatively new, extensive documentation will be required to convince USCIS of the need for an H-1B worker. In these cases appropriate evidence would include, but is not limited to, affidavits from other employers in the field and professional organizations in the field.

3. The beneficiary’s qualifications
To qualify as a specialty occupation, the position must require at least a bachelor’s degree or its equivalent in a specific field. Therefore, one of the most important parts of an H-1B case is documenting the beneficiary’s education and/or experience.

A diploma may be submitted if it indicates the beneficiary’s field of study and that field is relevant to the position sought. If this is not the case, transcripts should also be submitted. If the relevance of the subjects studied is not apparent, course descriptions from the school catalog may be included. If the beneficiary did not attend school in the U.S., the degree must be evaluated by a credentials evaluation service to ensure it is at least the equivalent of a U.S. bachelor’s degree.

Note that if the beneficiary attended college abroad, and then obtained an advanced degree in the U.S., no evaluation of the undergraduate degree is required because it is presumed that the U.S. graduate institution would not have admitted the student without at least possessing the equivalent of a bachelor’s degree.

While possession of a degree is the most common way of establishing a person’s ability to work in a specialty occupation, a degree is not required to obtain an H-1B visa. The applicant can demonstrate through work experience or a combination of education and experience that he or she has the equivalent of a bachelor’s degree.

If work experience will be used, USCIS requires affidavits from former employers outlining the beneficiary’s responsibilities and skills learned while there. Under USCIS rules, three years of work experience is equal to one year of college.

If there are any additional requirements that the beneficiary must meet to take the position offered, documentation that these requirements are met must be submitted. An example would be evidence of licensure when a license is required by the state in which the beneficiary will be working.

How do I file an H-1B petition?

The H-1B Petition is filed with the USCIS by submitting Form I-129 with H Supplement and I-
129 Data Collection and Filing Fee Exemption forms along with supporting documents and evidence and appropriate filing fees (see below).

There are many situations in which an employer can avoid paying unnecessary fees. It is important to consult with a reliable immigration attorney who can clearly explain to you what types of fees are required for your case. If a case is filed with incorrect filing fees, it can be rejected by the USCIS and have severe consequences for the beneficiary.

Are you located in the Orange County, Irvine, Anaheim, or Santa Ana areas? We encourage you to contact the immigration experts at Global Law Centers. We successfully process H-1B extensions, cap subject, cap exempt, amendments, and concurrent employment H-1B visas. If you have a questions about your H-1B please visit our H-1B FAQ’s.