Our Law Firm prepares and files H-1B petitions and counsels employers an all issues related to the H-1B visa.
The H-1B visa is a nonimmigrant visa that allows an alien to work in the U.S. for up to six years (or more, in certain circumstances) in a professional position. The H-1B visa is employer specific, meaning that the alien can work only for the petitioning employer on the H-1B petition. An alien can work concurrently for two or more employers, but each employer must file a petition on behalf of a foreign worker.
General Requirements for an H-1B visa:
- Specialty occupation: generally, the position must require at least a four year bachelor’s degree in a particular field closely related to the position.
- The alien must have at least a bachelor’s degree or its equivalent in the related field.
- The employer must pay at least the prevailing wage and make certain certifications on the Labor Condition Application.
United States makes 65,000 H-1B visas available each fiscal year for highly skilled professional occupations. Additionally, 20,000 additional H-1B visas are available for foreigners that earned a U.S. Master’s or higher degree. Cap-subject visa petitions are filed on April 1, and, if approved, a worker may start working for sponsoring employer on October 1st of the same year.
Demand for H-1B visas is very high and usually exceeds the number of available visas. Annual cap is typically reached within just the first 5 days. As a result, USCIS conducts a random lottery to determine the winners. Petitions that are not selected are returned to employers along with all USCIS filing fees.
It takes several weeks to prepare an H-1B petition. U.S. Department of Labor must first certify a Labor Condition Application before a petition can be filed.
Cap Exempt H-1B.
Certain employers and individuals are not subject to the visa cap. These employers may file petitions at any time of the year and annual quotas do not apply. Other requirements are the same as for cap subject visas.
Regulations provide for the following cap exempt institutions or employees:
- Institutions of higher education or related or affiliated nonprofit entities;
- Non-profit research organizations or governmental research organizations;
- A person who has already been counted against the cap within the past six years;
- A person extending H-1B status or changing employers; and
- A J-1 physician who has obtained State Conrad 30 program waiver.
Cap-exempt status clearly has many advantages as it is not limited by the number of visas or the time of filing.
Other H visa Programs: H-1B1 visa for Chile and Singapore:
Under Free Trade Agreements, citizens of Chile and Singapore are eligible to obtain H-1B1 visas. Annual caps exist for these categories, reserving 1,400 visas for citizens of Chile and 5,400 visas for citizens of Singapore. However, demand is not very high for these visas and annual caps are not reached, meaning that these visas are practically always available.
E-3 visa for Australians:
Similarly, based on the Free Trade agreement, 10,500 visas are allocated annually for the Australian citizens. Requirements are almost identical as for an H-1B visas. Annual quotas are practically never reached, making this E-3 visa a viable option for U.S. employers seeking to employ foreign talent from Australia.