H-1B visas: an overview

The H-1B visa is one of the most popular nonimmigrant visas. Generally, the H-1B visa allows an alien to come to the United States and work on a temporary basis. The alien can only be employed in a specialty occupation. Additionally, the nonimmigrant alien cannot actually apply for an H-1B visa on his own. Instead, a United States business must complete the H-1B application and submit it on behalf of the alien.

To be eligible for an H-1B visa, an alien must meet the following requirements:

Requirements for an H-1B visa:

• A United States employer must file an H-1B application for the nonimmigrant alien
• The employment must be in a "specialty occupation."
• A specialty occupation is a job that requires theoretical and practical application of specialized knowledge, along with at least a bachelor's degree or the equivalent.
• For example, jobs in engineering, information technology, accounting, and healthcare can all be specialty occupations.
• The nonimmigrant alien must hold at least a bachelor's degree from a U.S. college or an equivalent foreign degree.
• In some cases, several years of work experience may substitute for a degree
• The yearly "cap" for H-1B visas must not have been reached yet.
• Each year, there are approximately 65,000 H-1B visas available and 20,000 additional visas for US Masters degree graduates.

How an H-1B visa is filed:

First, the employer must first determine if an alien qualifies for H-1B status. If the foreign national does, the employer will file a Labor Conditions Application (LCA). Second, the H-1B petition is filed with USCIS. The H1B petition must show that the alien is entering the United States for the purpose of temporary employment with the employer. The petition must include supporting documents such as degrees or academic grades, or other documents that demonstrate the alien's qualifications. USCIS will then either grant deny or issue a Request for Evidence.

Keep in mind that USCIS can take over six months to process an H-1B petition. Currently, an applicant may pay for premium processing, an extra $1,000.00 fee, and have a decision made on the petition within fifteen days.

There are many terms that are important to understand in the context of an H-1B visa:

H-1B Cap:

The word "H1-B Cap" used to refer to the annual numerical limitations set by Congress on certain H1b nonimmigrant visa classifications. H-1B Cap or referred to sometimes as "H-1B quota" limits the total number of workers that can be issued a H1b visa in a given fiscal year to enter the United States pursuant to a the H-1B nonimmigrant classification. The H-1B Cap also limits the number of aliens already in the United States on a different visa that may be authorized to change status to the H-1B cap-subject classification. Currently the H-1B cap is set at 65,000 H-1B visas available and an additional 20,000 H-1B visas set aside for US Masters Degree holders.

H-1B Transfer:

An H-1B employee may transfer to a new H-1B job provided that the new employer has filed a non-frivolous petition on behalf of the foreign national. This is referred to as H-1B transfer. Also, it requires that the alien has not accrued unlawful presence in the United States or violated her prior H-1B status.

H-1B visa transfer is not the issuance of a new H-1B visa but merely a transfer of the existing visa. In other words, an H-1B visa holder may change his/her job through H-1B visa transfer. In order to transfer the H-1B visa status, the new employer would have to file a petition with the USCIS regarding the employment of the visa holder. The H-1B visa holder must be in lawful status at the time of filing the petition for visa transfer, and they should not have engaged in any unauthorized employment since his or her last lawful admission.

H-1B Employer Exemptions:

This refers to H-1B nonimmigrant's that are employed, or will be employed in institutions of higher education or a related or affiliated nonprofit entity, as well as nonprofit research organization or a governmental research organization. These H-1B employees are exempt from the H-1B cap. In other words they are unlimited.

H-1B Advanced Degree Exemption:

The H-1B Visa Reform Act of 2004 makes 20,000 new H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. Also this refers to as "Masters H-1B" or "H-1B Masters cap." For each fiscal year, 20,000 persons who hold such credentials are statutorily exempted from the H-1B cap.

The experienced and skilled immigration attorneys at Shihab and Associates are prepared to assist you in obtaining an H-1B visa. We have assisted Fortune 500 corporations, large universities, small businesses, and individuals with all of their H-1B visa issues. No matter what your issue, Shihab and Associates is ready to guide you through the process. To set up an initial consultation please contact us at either the Columbus, Cleveland, Metro Detroit or Washington DC offices.