Orlando H1-B Visa Attorney
Employment Based Visas (H1- B)
In order for an individual to come to the United States lawfully as a nonimmigrant to work temporarily in the United States, the prospective employer must generally file a nonimmigrant petition on their behalf with USCIS. The requirements for both employer and possible employee differ from visa classification to visa classification.
What is the H1-B Visa?
The H1-B Employment Visa applies to temporary nonimmigrant workers who wish to perform services:
- in a specialty occupation,
- services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or
- services as a fashion model of distinguished merit or ability.
What qualifies as a “specialty occupation”?
To be considered a specialty occupation, a job must meet one of the following criteria:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
Who qualifies for the H1-B Visa?
In order to qualify to accept a job offer in a specialty occupation, the individual must meet one of the following criteria:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
- Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
- Progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
How do you apply for the H1-B Visa?
The H1-B Visa application includes action from both parties – the employer and prospective employee.
Firstly, the employer must submit a Labor Condition Application to the Department of Labor.
However, this step is only required for a specialty occupation or a fashion model petition.Secondly, the employer must also submit a completed I-129 petition to the United States Citizen and Immigration Services. The form consists of:
- Basic petition;
- Individual supplements relating to specific classifications; and
- H-1B Data Collection and Filing Fee Exemption Supplement (required for H-1B and H-1B1 classifications only)
For example, the individual supplements for H1-B may include a copy of the employee’s Bachelor’s degree or foreign equivalent to prove qualification.
Once the I-129 is approved, the prospective employee may apply with the U.S. Department of State at a U.S. embassy or consulate for an H1-B Visa, if a visa is required. They must apply to the U.S Customs and Border Protection for admission into the U.S. under the correct classification.
The employer must receive an approval notice of the I-129 before the prospective employee can take these steps.
What is the H1-B Cap?
Within the H1-B program, applications are subjected to a Fiscal Year general cap and a Master’s Exemption cap of only 20,000 applications. The congressionally mandated general cap is 65,000 applications.
Which applications fall under which cap is decided based on the H1-B Data Collection and Filing Fee Exemption Supplement that is required to be submitted.
Applications for the next fiscal year are accepted starting in April of the prior year. However, due to the caps and the high volume of applications in such a short period of time, this filing period only lasts about a week or less and it essentially becomes a “lottery.” USCIS will use a computer-generated random selection process to determine which 65,000 applications will be chosen for consideration and subjected to the general cap and which 20,000 will be chosen for consideration and subjected to the Master’s Exemption cap.
How long is the period of stay in the United States with an H1-B Visa?
As an H1-B nonimmigrant, the individual may be admitted for a period of up to three years. The period may be extended, but generally cannot go beyond a total of six years. However, some exceptions do apply.
How do I apply for an extension or renewal?
The maximum time H1-B visa status can be extended is three years. Therefore, a foreign national can generally only remain in the U.S. on an H1-B visa for a maximum of six years.
To be exempt from this time cap:
- The foreign national must be the beneficiary of an approved I-140 petition;
- The foreign national must be the beneficiary of a PERM petition or I-140 petition that was filed over 365 days ago; or
- The foreign national must be recapturing time spent outside the U.S. during the past 6 years in H1-B status.
To apply for an extension or a renewal, the employer must provide:
- Copy of Letter of Employment;
- Detailed Job Description;
- Company Brochure and/or any marketing material;
- Copy of most recent Financial Statement, Annual Report or Business Plan, if available; and
- Copy of Articles of Incorporation, if available.
And the employee must provide:
- Copies of all U.S. visas, I-94’s and I-797 approval notice(s);
- Copies of documents demonstrating specialty occupation qualification; and
- Copy of 3 most recent paychecks, unpaid leave of absence letter, or letter from employer as other proof of employment.
What if I get fired?
If the employee is terminated before the end of their period of authorized stay, the employer will be liable for the reasonable costs of their return transportation. However, if the employee voluntarily resigns from the specialty occupation position, then the employer is not responsible for the costs of their return transportation.
Contact the Service Center that approved the petition in writing if you believe that your employer has not complied with this requirement.
105 E. Robinson St. suite 307
Orlando - Florida 32801
Tel: 407 502-3000
Fax: 407 650-3308