H-1B Visas - FAQs
What is the H-1B Visa?
April 1st is the opening of the H-1B cap. The H-1B is a non-immigrant employment-based visa either for specialty occupations, services of exceptional merit, DOD (Department of Defense contracts), fashion models, distinguished merit or ability. For example, a lot of times we see UCF students that are on F1 visas or on OPT and then the go to get a job offer, and the employer can seek a non-immigrant H-1B visa for them.
What is “Specialty Occupation”?
“Specialty Occupation” it’s a legal term and one of the requirements of the H-1B visa. There are different ways to evaluate specialty occupation. Usually, you want to see a bachelor’s degree as a minimum requirement for this position and it requires specialized knowledge to do this kind of job. Some people have work experience but don’t have a bachelor’s degree from the US, and this doesn’t mean that they are not able to qualify for an H-1B. There are a lot of companies that perform "equivalency evaluations" and that would analyze the person’s degree from a foreign country and their work experience to produce a report “translating” the degree and work experience into its equivalence in the US. Those with a master’s degree have an advantage because is a master’s cap, which means that there is a limited number of visas approved each year.
How many H-1B visas are issued each year?
There are 65,000 H1B visas approved each year and an extra 20,000 for the cap. Typically there are over 200,000 applicants each year and those who apply go into a lottery system.
How do I get an H-1B visa?
To get the H1B visa approved you have to start with having a job offer and you must get selected randomly by USCIS through the lottery system. If you're selected USCIS will do an evaluation to determine whether or not you, and the employer, qualify for this visa. Students with OPT are allowed to work after they complete their course. Many times, they can extend their status if their H-1B is selected, depending on when their OPT actually expire. April is the month when the H1-B visa applications are submitted. In this regards employers and employees should start working on their H-1B visa applications in advance to have them ready before the deadline and make sure that one's application is received on time. There is a lottery and filing late can a lot of times prevent you from being eligible for this visa.
What is the H-1B visa process?
A profile for the employer and the position needs to be created and then the application is submitted electronically. This is like the ticket for the lottery. The applicant must also complete what's called a “Labor Condition” with the Department of Labor to demonstrate the wage, to verify the employer’s Federal ID Number and to prove that they are going to be eligible to pursue such a visa.
if the applicant is selected through the lottery system an I-129, the form used for non-immigrant employment-based petitions, must be filed with the supporting evidence. Non-immigrant basically means that is temporary, or non-intended to give a permanent position in the U.S. The H-1B is typically good for a maximum of six years. Usually granting extensions on three-year increments. In some exceptions an H-1B visa holder can get additional time if he/ she has a 485 which is a green card application that has been pending for more than a year. In this sense, the H-1B visa is similar to an E2, P and O visa.
What happens if there is an interruption in the employment or if there's a change of employers? Is the H-1B visa transferable?
We typically advice applicants or beneficiaries of the H-1B Visa not to change employers without the new employer filing the petition first. The case doesn't need to be approved but they should at least file the I-129 first. Receiving those receipts is super important to show that you have done everything properly in your transferring of employment. The new job should be one from a similar job industry as the one you have it.
If you're in the U.S., you can remain here as long as you maintain your status some way. Simply filing in April is not going to protect you until your I-129 is actually pending, so you have to maintain status somehow for at least several months. A lot of times we don't hear back from USCIS with information about whether or not your case was selected or when it's time to file until May or June. This may leave a lot of individuals in a kind of limbo.
Can an H-1B visa holder bring their spouse and children?
Spouse and unmarried children under 21 are considered immediate relatives under U.S. immigration laws. Immediate relatives are allowed to come to the U.S. with the H-1B visa holder. However, if your children become over 21, they are no longer considered your immediate relatives under the immigration law and you would need to find an alternative visa for them.
Can the spouse and children of an H-1B visa holder work?
Immediate relatives of an H-1B holders are not be eligible for work authorization. This might change in the future during the new administration.
Is there premium processing for the H-1B visa?
There is premium processing for a lot of employment-based visa applications and H-1b is one of them. So basically, you typically pay the USCIS $2,500 and you should get a response, not necessarily a final decision, within 15 business days. A lot of times what happens is that close to the 15th day USCIS will send out what's called a “request for evidence” simply to comply with the time constraint. However, “premium processing” is a great way for typically having a final decision within a month or two after filing.
How can I get a copy of I-797 for my previously filed H-1B when I have a case receipt number? I filed my H-1B in June 2008 through a company in India. It got approved in the lottery, but I never got my I-797 from them. I only have my receipt number with which I can track the status on USCIS website. Now my current employer wants to do my H1B for which they need the old I-797. Can you help me get a copy of my I-797? My H-1B was filed from VT Center.
You can make a Freedom of Information Act (FOIA) request. I would suggest filing a FOIA request with the USCIS and the DOS. It may be worthwhile to contact the previous petitioning company as well. Back to Immigration FAQs
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If you are seeking an H-1B Employment Visa, we strongly encourage you hiring an experienced H1B visa attorney. The system is very complex, the demand for these visas is very high and the annual cap is low. For these reasons it is critical for your application to be properly filed from the beginning. Don't risk it! Call us today at 407-502-3000 or fill out the online form provided at the top of this page and our Orlando H1B Visa lawyer will contact you soon. We can help you in English, Spanish, Arabic and Portuguese.