H-1B – Profession

Many foreign nationals begin their work in the United States through an H-1B.  An individual H-1B may be issued for up to three years, and foreign nationals may hold H-1B status in the U.S. for a total of six years.  Under some circumstances individuals are eligible to extend their H-1B beyond the six year maximum.  Each H-1B is granted for an individual to work for a specific employer in a specific location(s).  Individuals may hold more than one H-1B at a time, but must have an H-1B for each employer.

There is a statutory limit on the number of H-1Bs that can be issued each year. This limit is known as the “H-1B Cap”.  Currently 65,000 H-1Bs are granted each fiscal year, plus an additional 20,000 for foreign nationals with advanced degrees from U.S. universities.  Additionally, government research organizations, some non-profit research organizations, institutions of higher educations and certain employers affiliated with institutions of higher educations are exempt from the H-1B cap which allows them to file as many H-1B petitions as needed.

The H-1B is the most common status for foreign professionals working in the U.S.  Our attorneys have successfully filed thousands of H-1B petitions. We have filed petitions for doctors, post-doctorate researchers, scientists, businesswomen, marketing researchers, IT professionals, engineers, accountants, and professionals in many other fields.

Requirements for an H-1B

In order to be eligible for H-1B the position must be a specialty occupation

The regulations define a “specialty occupation” as one requiring the theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum.  This means the job must require at least a bachelor’s degree.   The individual must have the required degree or its equivalent.

The employer must pay the higher of the prevailing wage or actual wage for the position. The prevailing wage is set by the U.S. Department of Labor based on the requirements of the position and the geographical work location. If that wage is higher than the wage the employer normally pays for the position, the employer must pay the prevailing wage.  Conversely, if the employer normally pays more than the prevailing wage, it must pay the higher actual wage to the H-1B employee.

The employer must file a petition with USCIS to obtain the H-1B for the individual to work in that status in the designated position.

The employer has several other obligations when sponsoring an employee for an H-1B.  The employer is required:

• to pay the expenses related to filing an H-1B petition for an employee. These are considered business-related expenses and employers are forbidden by law to seek reimbursement of the government filing fees or other costs, including attorney’s fees in seeking an H-1B for an employee.  In the event that an employee wishes to seek premium processing (see below) for strictly personal reasons, then he or she may be allowed to pay the premium processing fee but this is the only exception for the H-1B fees;
• to post a notice informing other employees that it is hiring an H-1B employee;
• to file a labor condition application with the U.S. Department of Labor
• to maintain a file of specific documents related to the H-1B, called a public-access file;
• make certain attestations regarding treatment of similarly employed individuals;
• and to pay the H-1B employee’s return transportation home if the employer ends the employment relationship before the expiration of the H-1B.

PROCESSING TIME

It normally takes approximately 4-5 weeks to prepare and file an H-1B petition.  This is because both employer and the beneficiary must submit information and because the process to prepare the petition is stepwise, by law.  Once filed with the USCIS, the time to adjudicate the petition varies greatly.  Under the Trump administration, processing time for adjudications has slowed tremendously sometimes going well beyond 6 months.

In general, H-1B petitions are eligible for premium processing, a service through which an individual or the employer can pay an additional fee and request that the USCIS review the petition within 3 weeks.  While the USCIS does comply with that 3‑week turnaround time, it is important to understand that the USCIS can issue a request for additional evidence in response to the review.  Additionally, USCIS routinely suspends premium processing for H-1B petitions subject to the annual cap for several months beginning in April and often lasting well into the summer.

FREQUENTLY ASKED QUESTIONS ABOUT THE H-1B

How does the H-1B cap work?

Currently there are 65,000 H-1Bs available each fiscal year, which begins October 1.  There are an additional 20,000 H-1Bs available for individuals who have completed an advanced degree (master’s or higher) at a non-profit U.S. institution of higher education.  An employer can apply for an H-1B for an individual 6 months in advance of the start date.  Therefore, H-1B petitions subject to the annual cap are submitted April 1 of each year for an October 1 start date.  The USCIS has long accepted all H-1B petitions received in the first five business days in the fiscal year and then, assuming there were more petitions than the allotted number of available H-1Bs, selected those that would be considered by lottery.

In 2019, USCIS promulgated a regulation to implement a new system for employers to apply for cap-subject H-1Bs.  Under the new system, employers will first submit basic information about each position in advance of April 1.  USCIS will then select those who would be considered for the year’s allotment, notify the employer and then the employer will submit a full petition only for those individuals who were selected in the lottery.  As of this writing, the new system has not been implemented so details about the process will be forthcoming.

 When can an individual start to work on the H-1B?

An individual who is in the U.S. and is the beneficiary of an employer-sponsored H-1B in which the employer applies to change the individual’s status, may begin employment as an H-1B employee on the validity date of an approved H-1B.  Individuals who receive an H-1B subject to the annual cap will most often obtain an H-1B that starts October 1.  However, there have been times when cap-subject H-1Bs have not been adjudicated until after October 1 in which case the individual would not be able to work on the H-1B until the actual validity date.

Individuals who are in valid H-1B status working for another employer, may choose to port to a new employer once the new employer has filed for its H-1B on behalf of the individual.  It is important to note that an individual who has not been granted a cap-subject H-1B cannot port to a cap-subject H-1B employer.

Individuals who are outside the U.S. when an employer files for an H-1B on their behalf, must first obtain an H-1B visa at a consulate abroad.  Upon receiving the approval from the petition filed by the employer, the individual (future employee) uses the approval notice to apply for an H-1B visa which he or she uses to travel to the U.S.

Can the spouse of an H-1B status holder work in the U.S.?

Only in limited circumstances.  Spouses and minor children of those in H-1B status are eligible for H-4 dependent status.  H-4 spouses are eligible to apply for employment authorization only if the H-1B worker has an approved I-140 immigration petition and is waiting in the permanent residence backlog because he or she is from an oversubscribed country.

What are some advantages of H-1B status?

Individuals who have H-1B status and have been counted under the cap, will not have to be counted under the cap again.  As such, they can be sponsored for additional H-1Bs by other employers, without have to be subject to the cap again.

Individuals can have multiple H-1Bs and work for multiple employers at the same time.

If certain steps are taken in the process to apply for permanent residence by the end an individual’s fifth year in H-1B status, they will likely be able to extend their H-1B status until they are permanent residents.