Immigration Attorney, immigration law Boston MA Immigration lawyer, Boston Massachusetts

H1B Visas: Temporary Specialty Worker

Summary

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 pursuant to H-1B petitions.

Requirements

  • Specialty occupation:  generally, the position must require at least a bachelor’s degree in a particular field related to the position.  However, there are some exceptions to this rule where the job duties are sufficiently complex. 
  • The alien must have a bachelor’s degree or equivalent in the related field
  • The employer must pay at least the prevailing wage.

H-1B cap

65,000 H-1B visas are available each fiscal year and 20,000 additional numbers are available for those with a master’s degree or higher from a U.S. institution.  These numbers become available on October 1st of each year.  Certain employers and individuals are not subject to the visa cap:

    1.  Cap exemption institutions:

      1. Institutions of higher education or related or affiliated nonprofit entities
      2. Nonproft research organizations or governmental research organizations;

    2.  A person who has already been counted against the cap within the past six years, unless the person would be eligible for a new six-year period of H-1B status(an H-1B alien could be eligible for a full 6yrs if he was out of the country for a year or if the work he was performing in the US was seasonal, intermittent or less than 6 months per year); 

    3.  A person extending H-1B status; and

    4.  A J-1 who has obtained State 30 program waiver.

Procedures

F-1 Students:  The F-1 alien should file to change status well in advance, since employment pursuant to the H-1B petition cannot commence until the petition is approved and a visa number is available.  If filing for a change of status, an F-1 student may remain in the US after the petition is approved and until a visa number.  Also under an interim rule fixing the cap-gap, an F-1's status and work authorization under her optional practical training will be extended if she is subject to the cap and applying for an October 1st start date provided that she requests a change of status and has maintained her F-1 status.

Consular processing for an H-1B visa

  • An F-1 student seeking an H-1B visa must consular process abroad and obtain a new H-1B visa abroad before working if there was a violation of status and a formal finding against the F-1 student.
  • If the F-1 alien originally changed status to H-1B in the U.S., then the alien must obtain a new visa before reentering the U.S. after a trip abroad (exceptions for the automatic revalidation rule)

Premium Processing

The H-1B petition can be filed via premium processing, whereby an additional $1,000 fee is paid and the US CIS must adjudicate the petition within 2 weeks of receipt or request additional evidence within this time frame becomes available. 

Filing Fees

  • The employer must pay for certain petition filing fees and may not request reimbursement from the H-1B employee.  Certain employers are exempt from these filing fees.
  • The employee is allowed to pay the attorneys fees only where the wage offered to the employee exceeds the prevailing wage by the amount of the fees.  Otherwise, the employer or a third party must pay.

No benching allowed

The employer must pay the beneficiary alien when nonproductive, with limited exceptions.

Postfiling Issues

Admission and extension 

An alien can obtain H-1B status for up to three years at a time and for a maximum of six years.  However, the alien may seek H-1B status indefinitely beyond the six year period under the following situations:

  1. A labor certification application or immigrant visa petition has been pending for one year; or
  2. The Form 140 is approved and a visa number is unavailable.

Portability 

In certain situations, an alien may commence employment with the H-1B petitioning employer upon the filing of an H-1B petition.  This applies to aliens who are changing H-1B employers.

 

If you wish to investigate your eligibility for legal benefits discussed on this site, please consult with Attorney Monique Kornfeld:

Phone: 617-323-5049 • Email: mkornfeld@mhkimmigration.com • Newton, MA

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