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Temporary Professional Workers (H-1B Visa)

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Mar 19, 2019)

What is H-1B visa?

H-1B is a temporary work visa, which allows U.S. employers to employ foreign professionals for “specialty occupations,” on a temporary basis. H-1B visa holders may live and work in the United States. The spouses and minor children of the H-1B visa holder may also accompany them to the United States.

H-1B1 is a variation of H-1B that is allocated to Temporary Specialty Professionals from Chile & Singapore.

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What are Cap-Subject H-1B Petitions?

Cap-Subject H-1B petitions are petitions which are subject to the annual quota of H-1B visa availability.

What are Cap-Exempt H-1B Petitions?

Cap-Subject H-1B petitions are petitions which are not subject to the annual quota of H-1B visa availability. See Cap-Exempt Employer.

What are the “specialty occupations” for H-1B visa?

H-1B visa is only available to foreign professional, who are qualified for and are going to be employed in a “specialty occupation.”

Under the Immigration and Nationality Act, a "specialty occupation" is an occupation requiring (a) "theoretical and practical application of a body of highly specialized knowledge" and (b) "attainment of a bachelor's or higher degree," or its equivalent, in the field.”

Examples of specialty fields of occupation include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

What are the educational requirements for H-1B visa?

To apply for H-1B visa for a foreign professional, the employer must show:

  • The foreign professional holds a bachelor's degree or higher, or their equivalent.
  • The degree is normally the minimum entry requirement for the “specialty occupation” position.
  • The degree requirement either (a) is common to the industry, or (b) the job is so complex or unique that it can be performed only by a professional holding the specified degree.
  • The employer commonly requires a degree or its equivalent for the proposed position.
  • The position's nature and duties are so “specialized and complex” that the required knowledge is commonly associated with the attainment of a bachelor's or higher degree.

If the position requires a license, the foreign professional must hold an unrestricted license to perform the duties of the position.

How many H-1B visas are issued each year?

Congress has limited the number of H-1B visas issued annually to 65,000. However, some positions are not subject to this limit. See Cap-Exempt Employers.  Of the 65,000 available visas, up to 6,800 visas annually are reserved for Chilean and Singaporean applicants under certain Free Trade Agreements between the United States and those countries.  These visas are denoted as H-1B1. If any of these 6,800 visas are not used in a given year, they will be added to the available H-1B visas the following year.

In addition, each year an additional 20,000 H-1B visas are allocated to the foreign-born professionals who hold a master's degree or higher from a U.S. college or university.

What is the H-1B Lottery?

H-1B visa lottery is not a lottery ticket that you buy. Do not fall prey to anybody trying to sell you a lottery ticket. Again, there is no such thing as a lottery ticket for H-1B visa.

Excluding Cap-Exempt positions, only 85,000 H-1B visas are available annually.  These are called “Cap-Subject” visas. Recently, over 200,000 alien workers have been applying for these positions every year, and the number of applicants is on the rise.

Of the 85,000 visas, 20,000 are reserved for applicants holding a master's degree or higher from U.S. colleges and universities. Of the remaining 65,000, 6,800 visas are held for Chile and Singapore applicants under certain Free Trade Agreements between the United States and those countries. This leaves approximately, 58,200 visas.

Cap-Subject visas allow for employment starting date of October 1, i.e., the start of the United States' fiscal year and the applications shall not be filed any earlier than six (6) months before the start of the fiscal date, which makes April 1st the earliest possible filing date for Cap-Subject H-1B petitions. Therefore, on April 1st of each year an avalanche of H-1B petitions start arriving at the USCIS.  A few days afterwards, the USCIS employs a computer program to randomly select applicants for further processing. There is no prescribed cut-off date for when the USCIS stops taking new petition. It would be best to file your petition on April 1st or very shortly thereafter. Note that a petition is deemed filed when received by the USCIS.

The process by which the USCIS selects a limited number of H-1B visa applicants for further processing is officially called “computer-generated random selection process.”  This process has been called a “lottery” by the employers and the beneficiaries.

Formerly, the process was as follows: First, the USCIS grouped all applicants holding a master's degree or higher from a U.S. colleges and universities and randomly selected 20,000 applicants for further processing. After that, the remaining applicants, including those holding a master's degree that were not selected earlier, were placed in a pool and about 58,200 applicants are randomly selected for further processing.

Starting with the 2020 cap-subject applications (i.e. the cap-subject applications filed starting in April of 2019), the United States Citizenship & Immigration Service (USCIS), utilizes a new process for the application selection, in order to favor candidates holding master's degrees or higher from American universities. The USCIS estimates that the proposed procedure will increase the chances of those candidates by approximately 16%. Furthermore, the new rules would require pre-registration of employers (i.e. petitioners) and electronic submission of H-1B petitions. That requirement will be enforced starting in 2020.

If your employer's petition naming you as a beneficiary is not selected for further processing, the file and the application fees will be returned to the employer or the employer's attorney.

Considering these factors, the preparation for H-1B petitions must start well in advance of the April 1st deadline, preferably in January and no later than mid-February.

What is the cut-ff date for submission of cap-subject H-1B petitions?

There is no set deadline. On April 1st of each year an avalanche of applications start arriving at the USCIS. When the USCIS deems that it has received enough applications, it will stop accepting new ones. There are no advance announcement regarding a particular cut-off date, but in recent years, the cut-off day has been within the first few days of April.  Here are the cut-off dates for cap-subject H-1B petitions in recent years:

Fiscal
Year
Application
Cut-Off Date
Number
of Days
2014April 5, 20135
2015April 7, 20145
2016April 7, 20155
2017April 7, 20165
2018April 7, 20175
2019April 6, 20185

To be safe, do your best to have your employer file the H-1B application on the first working day in April.  H-1B applications may not be filed before April 1st, and they are deemed filed when received by the USCIS

What are my chances of getting a visa through lottery?

The chances of selecting a particular H-1B depends on the total number of applications, the number of qualified master's degree applications, and the number of applications of candidates from Chile and Singapore. For the years prior to 2019 fiscal year, only the total number of applications are available. Assuming that 6,800 available visas are actually claimed by Chile and Singapore and 20,000 by qualified applicants holding masters degrees, the "approximate" chances of selection for a regular cap-subject applicant are shown in the table below:

Fiscal
Year
Total H-1B
Applications
Filed
Apprx. Chance of
Selection for
Regular Applicants
2014 124,000 60 %
2015 172,000 40 %
2016 233,000 28 %
2017 236,000 28 %
2018 199,000 34 %
2019 190,098 36 %

For fiscal year 2019, the USCIS disclosed the receipt of 95,885 applications from qualified master's candidates and 94,213 applications from others, including candidates from Chile and Singapore. This implies a chance of selection for qualified candidates holding a master's degree at approximately 49 %, and for regular candidates at approximately 36 %.

The USCIS, estimates that its new selection rule (now in effect) would increase, by 16%, the chances of selecting candidates with masters or higher degrees from American universities. Based on the latest statistics, we estimate that, under the proposed rules, candidates holding a master's degree or higher from American universities would have a selection chance of about 65%. Conversely, the new rules would reduce the chances of selections for other candidates.

Can I improve my chances by submitting multiple requests for H-1B visa?

No. If an employer submits multiple petitions for a prospective employee, the USCIS will deny all petitions and will not refund any of the fees.

Who is a cap-exempt employer?

Generally, the following employers are cap-exempt, i.e., the H-1B visas for their prospective employees would not be subject to numerical limitation.

  • Institutions of higher learning
  • Nonprofit organizations associated with institutions of higher learning
  • Nonprofit research organizations
  • Governmental research organizations

If you are being employed through a third-party agency, such as a workforce agency, your employer may still apply under this category if the employer can show that you will spend all or most of your time in working for an employer qualified as cap-exempt.

Can I change employers after receiving an H-1B visa through another employer?

The American Competitiveness in the Twenty-First Century (AC21) allows portability of H-1B visas, thereby allowing employees holding H-1B visas to change employment if they were previously issued an H-1B visa, if

  • The H-1B visa holder is lawfully admitted to the United States;
  • The new employer has filed a Petition for a Nonimmigrant Worker (USCIS Form I-129), together with the required supporting materials and fees, before the employee's authorized stay in the United States has expired.
  • The employee has not engaged in unauthorized employment.

If this is what you wish to do, you must consult an attorney to address the applicable issues.

Can I enter the United States on an H-1B visa received through a cap-exempt employer and then switch to another employer?

No. There is no such loophole. If you receive your H-1B visa through a Cap-Exempt employer and later wish to switch to a cap-subject employer, your new prospective employer must go through the procedures applicable to cap-subject employers.

How is an application for H-1B made?

A petition for H-1B visa classification must be filed by your prospective employer.  The employer should first file a Labor Condition Application (LCA) with the United States Department of Labor. The LCA seeks a certification by the Department of Labor that (a) the proposed wages to be paid to you is at or above the prevailing wages for your position, and (b) employing you will not adversely affect the working conditions of U.S. workers. The U.S. Department of Labor does not charge any application fee for adjudicating the LCA. The processing time for LCA is usually between one to two weeks.

Once your employer has an approved LCA, the employer should file a Petition for a Nonimmigrant Worker (USCIS Form I-129) with the USCIS, together with the supporting documents and the required fees. Preparation for, completion, and submission of the Labor Condition Application and the Petition for a Nonimmigrant Worker are rather complex.

To see the current USCIS fee schedule, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your petition, see USCIS Processing Times.

Premium processing is available for H-1B visa petition, meaning that you may be able to obtain a decision in 15 calendar days. However, on March 20, 2018, USCIS announced that it will suspend premium processing for H-1B cap-subject petitions.  USCIS March 20, 2018 Announcement.  The suspension was scheduled to last until September 10, 2018.

If you are already in the United States and in status, the USCIS will change your status and will send you a notice with instructions. If you need your new status to be marked on your passport, make an appointment with your local immigration office through the USCIS' Infopass Web Site

If you are overseas, the USCIS will send the approved petition to the U.S. Department of State's National Visa Center (NVC) for Consular Processing.

What is the duration of H-1B visa?

Normally, an H-1B visa is good for three (3) years. It can be renewed once for another three (3) years. Thereafter, you must be physically outside of the United States for a full year before you can reapply for another H-1B visa.  There are various exceptions to this rule.

What is Cap-Gap Extension?

Cap-Gap extension applies to international students in the United States, who have an approved H-1B visa petition and need to stay in the country after the end of their F-1 status in order to start their H-1B employment on October 1st. For details, see Cap Gap Extension.

What happens if I resign or if I am fired while on H-1B visa?

If you resign, or are fired, from your position, your H-1B is automatically terminated and you go out of status. If your employer fires you before the expiration of your visa, the employer will be responsible for relocating you to the place of your last residence outside of the United States.

What are my options if I resign or if the employer fires me while I am on H-1B visa?

You will be out of status as soon as the position for which you received H-1B visa is terminated, either by you or your employer. In that case, you may (a) seek employment with another employer (leading to either a nonimmigrant or immigrant visa), (b) apply for change of status to another nonimmigrant visa category (within 60 days), or (c) leave the country.

Can I bring my spouse and children to the United States, if I receive an H-1B visa?

Yes. Your spouse and minor children (unmarried and under 21) may be listed on the petition as derivative beneficiaries. They will receive H-4 visas to accompany, or follow-to-join, you. H-4 visa would not entitle your spouse and minor children to work in the United States. If they wish to work here, either they must come here under a visa category which would authorize their employment or, under certain circumstances, they must file an Application for Employment Authorization, using USCIS Form I-765.

Can I find another job and apply for an employment-based green card while working on H-1B visa?

Yes. Either your current employer or another employer may petition to classify you as an immigrant alien worker.

Most nonimmigrant visa categories require the alien to have “a residence in a foreign country which [the alien] has no intention of abandoning.” That requirement usually would conflict with the intention of a nonimmigrant who applies for an immigrant visa. H-1B visa holders, however, are not subject to this requirement and may hold “dual intent,” i.e., H-1B visa holder may intend to immigrate to the United States while holding their nonimmigrant visa.

 

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