Clarity and Strength in Immigration Law

1.     What is an H-1B visa?

The H-1B visa is a work visa for professionals who hold specialty occupations. Specialty occupation is defined as a position that requires the “theoretical and practical application of a body of highly specialized knowledge” and that requires a bachelor’s degree or equivalent as a minimum for entry into the occupation in the US. Generally speaking, the classification is for professional positions.

“Equivalent” means either a foreign four year degree, or a combination of education and relevant work experience, where three years of work experience is equivalent to one year of university education (or in some instances, just work experience).

2.     For how long is the H-1B status valid?

The petition is valid for three years initially, and can be extended for up to an additional three years. Further, if the employment-based permanent residence process is started and at a particular point in the process, the H-1B status can be extended past the sixth year.

3.     When can we file the H-1B petition?

There is a limit of 65,000 H-1B petitions each year, plus 20,000 petitions for US master’s degree holders. This is commonly called the H-1B cap. The cap “opens” each year on April 1st for an October 1st start date. That means that employers can start filing on April 1st for the employer to start working on October 1st (or later). However, the employer can file the H-1B petition at any time, as long as there are visas left in the cap. So for example, if it’s November 1st but there are still H-1B petitions left, the employer can file immediately for an immediate start date (see timeline below).

However, not all H-1B petitions are subject to the H-1B cap.  The types of petitions not subject to the cap include:

  • H-1B transfers (changing employers)
  • H-1B extensions
  • New petitions, if the beneficiary has been counted against the H-1B cap in the past six years
  • New petitions for certain H-1B cap-exempt organizations

4.     What is the petition process?

The employer must file a labor condition application (LCA) with the Department of   Labor. Typically the employer’s immigration attorney will do this for them. The LCA is the mechanism by which the employer makes certain required attestation as to the working conditions and terms of employment. The Department of Labor can take up to seven calendar days or longer to process this application.

Once the LCA is approved, the employer files the H-1B petition with USCIS (formerly called INS). Once the petition is filed, the employer and the attorney will receive a receipt notice with a tracking number (called the receipt number).

USCIS can take around two months to process a new H-1B petition, or up to several months to process an H-1B extension or transfer petition (see below).  However, USCIS does offer the premium processing service. This means that if the employer pays USCIS an extra fee (currently $1225), USCIS will make a decision or issue a request for evidence within 15 calendar days.

If the H-1B employee is outside the US, he/she must apply for the H-1B visa at the US consulate before entering the US.

5.     What about the H-1B employee’s family members?

Family members (spouses and children under age 21) can obtain H-4 status. The spouse is not permitted to work in H-4 status.

6.     When can the H-1B employee start working, once the petition is filed?

Classic lawyer answer: it depends!

If the petition is a new petition, subject to the cap, the employee can start working on October 1, or as soon as the petition is approved, whichever is later.

If the petition is a transfer petition or extension petition, the employee can keep working, assuming the extension or transfer was timely filed (before the expiration of the employee’s current status).  This is sometimes referred to as “H-1B portability,” meaning the H-1B beneficiary can start working for the new employer as soon as the petition is filed, assuming all H-1B portability requirements are met.

7.     What are the costs for the H-1B petition?

Please refer to the engagement letter for the exact legal and filing fees.

8.     Who can pay the H-1B fees?

The employer must pay the filing fee, the fraud fee, the employer fee, and the public law fee (if that is applicable). Whether the employee can pay the legal fee is less clear-cut. While some authority indicates it is permissible for the employee to pay the legal fee, the employer must ensure that deducting the legal fee from the H-1B employee’s salary would not take the salary below the prevailing wage or actual wage (see immediately below).

9.     What is the minimum amount the employer must pay the employee?

The employer must agree to pay the employee 100% of the prevailing wage or actual wage, whichever is higher. The prevailing wage is determined by the Department of Labor, and is set according to the position, skills, experience, and education required, and the geographic location of the worksite. The actual wage is the wage paid to similarly employed employees.  Your immigration attorney can explain this requirement in more detail, but please note that you cannot pay the employee just any wage you want to; you must ensure it complies with the wage requirements.

10.  Can the H-1B employee start the permanent residence (green card) process while in H-1B status?

Yes! H-1B status allows for dual intent, meaning a person can hold H-1B status and start the permanent residence process.

11.  What documents are required for the H-1B process?

Please see the document checklist from the attorney for the specific list. However, generally speaking, the attorney will need basic corporate information (full name of company, number of employees, etc).  Depending on the type of company, we may also need copies of the most recent tax returns, business plans, etc. Note that all information will be kept confidential.

12.  What else should the employer know about filing the H-1B petition?

If the employee is terminated before the end of the H-1B status, the employer must offer to pay return airfare to the employee’s home country. Also, as part of the LCA process, the employer must post a notice of filing in a conspicuous place to notify other employees that the H-1B petition is being filed. The immigration attorney will prepare the notice for you, but by regulation, it must require the wage that the H-1B employee will be paid (or at least a salary range that includes the wage that will be paid).

H-1B FAQs – for the Foreign National

13.  I’m in a different immigration status right now. Can I change status in to H-1B without leaving the US?

You may be able to. If you are in J-1 status, you must confirm with your attorney that you are not subject to the two –year home residence requirement. If you are in B-1/B-2 status, you should also work closely with your immigration attorney to make sure that there are no problems filing a change of status.

14.  Can I change employers while I’m in H-1B status?

Yes. Your new employer would need to file an H-1B petition for you, but in most instances you can start working as soon as the new petition is filed. This is called an H-1B transfer. If you have previously been counted against the H-1B cap, you will not be counted against the cap when you file an H-1B transfer.

15.  What if I want to extend or transfer my H-1B status, but I don’t have pay stubs?

Generally when you file an H-1B transfer or extension petition, you must include a copy of recent pay stubs to show that you have maintained valid H-1B status. If you do not have pay stubs (because you haven’t been working or for some other reason), you may still be able to file the petition.  However, USCIS may approve the petition without the I-94 card. In that case, you may need to leave the US, have the H-1B visa stamped if you do not already have a valid H-1B visa in your passport (unless you are visa-exempt), and then re-enter the US to obtain a new I-94 card. Please speak with your immigration attorney in more detail if you have this situation.

16.  Can I travel while the change of status is pending?

If you travel while the change of status is pending (remember, a change of status is when you are applying to change from some other immigration status to H-1B, in this case), your change of status request will be considered abandoned and denied. The petition itself would still be approved, assuming it is otherwise approvable. However, you would need to have the H-1B petition approved, and the H-1B visa stamped before you re-enter the US in H-1B status.  Please speak with your attorney prior to traveling!

17.  Can I travel while the extension of status is pending?

Yes.  If your current petition will expire while  you are outside the US, you must wait for the extension petition to be approved, and then have the new H-1B visa stamped before you re-enter the US.

If your current petition will still be valid when you re-enter the US, and if you still have a valid H-1B visa, you can re-enter the US (be sure to travel with a copy of the extension petition receipt notice).

If your current petition will still be valid when you re-enter the US, but you need to have your visa stamped while you are outside the US, note that your visa will be stamped with validity end date that matches your current status. 

18.  I’m graduating from university/graduate school soon. I want to work on H-1B status. What should I do?

You may want to obtain OPT (optional practical training) first. OPT is available for up to one year for F-1 students who have graduated. You can work for an employer in a position related to your field of study for up to one year, and the employer does not have to sponsor you. While you are working in OPT, you can plan your H-1B strategy. Each case is unique, so please speak with an immigration attorney.

H-1B Petition Preparation Timeline

Case Preparation Step

Approximate Time

Attorney sends employer and employee document checklists and questionnaires

N/A

Attorney receives completed questionnaires and documents from employer and employee

1 week (approximately; this depends on the employer and employee)

Attorney prepares LCA and submits to Department of Labor

1 week for DOL processing

While LCA is pending, attorney prepares required forms and support letter for H-1B petition; sends to employer for signature

1 week (while LCA pending)

Attorney receives all signed forms and filing fee checks; files petition with USCIS

N/A

Attorney and employer receive receipt notice from USCIS

2-4 weeks after filing petition

Attorney and employer receive approval (or request for evidence) from USCIS

2-5 months after filing petition

Attorney sends original approval notice and copy of petition to employer

1-3 days after receiving approval  notice from USCIS

 Questions? Ready to start your H-1B petition? Please contact Emily Sumner at esumner@sumnerimmigration.com