Mark A Ivener, A Law Corporation

H-1B Visas for Professionals

For Singaporeans and Chileans, read more about H-1B1 visa options at this page.

Who is Eligible?

The H-1B nonimmigrant visa may be issued to individuals for employment by companies who seek temporary entry for employees as professional workers in a specialty occupation. Some examples of “specialty occupations” include: accountant, computer analyst, engineer, financial analyst, scientist, architect and lawyer. In order for a position to qualify as a specialty occupation, the position must generally require a bachelor’s degree in a specific discipline related to the position. The beneficiary must also hold the appropriate degree or its equivalent. There are two ways in which a beneficiary might have the equivalent of the appropriate degree. Beneficiary obtained a baccalaureate degree from a credentialed 4-year U.S. university, or from a foreign university. The petition must be accompanied by evidence that the foreign university degree is equivalent to 4 years of college at a U.S. college or university. The Beneficiary has a combination of college or university course work, plus three years work experience for each year of university education missing. For H-1B purposes, this combination may be deemed equivalent to a four-year bachelor’s degree.

How to Apply

A Labor Condition Application (LCA), which is discussed at the end of this Chapter, (see section E., infra), must first be filed with the U.S. Department of Labor (DOL). Once the LCA is approved, the employer fills out a Form I-129, Petition for Nonimmigrant Worker, and the supplemental form, along with supporting documentation, including the approved LCA. The forms and documentation are then filed with the U.S. Citizenship and Immigration Services (USCIS) Service Center having jurisdiction over the city of intended employment. The prospective U.S. employer files the petition along with the appropriate filing fee (see Appendix A). Once the USCIS approves the H-1B petition, a visa may be issued at a U.S. Consulate.

The H-1B Cap

Congress has established an annual H-1B cap of 65,000 petitions per fiscal year (FY), which runs from October 1st to September 30th. Of that number, 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Thus, the total H-1B cap number available for FY 2008 is 58,200. The law provides that any of the unused Chile/Singapore numbers will be reallocated back to the FY 2008 H-1B cap and will be made available on October 1, 2008, the start of FY 2009. The earliest date for which a petitioner may file a petition requesting FY 2009 H-1B employment with an employment start date of October 1, 2008—the first date of the fiscal year—is April 1, 2008. However, it is important to note that petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap, and thus the CIS will continue to process H-1B extension petitions, as well as petitions to change employers (see subsection D, below) and petitions to allow H-1B workers to work concurrently in a second H-1B position. Furthermore, exempt from the H1-B cap are the first 20,000 H-1B workers to file who have earned a U.S. Master’s degree or higher. Also exempt from the annual H-1B cap are foreign nationals who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

Documentation Requirements

For those individuals seeking to perform temporary services in a specialty occupation, the petition must be filed with the following documentation:

  1. An approved LCA from the DOL
  2. Documentation that the job qualifies as a specialty occupation. A “specialty occupation” is defined as one that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a baccalaureate degree or higher as a minimum requirement for entry into the occupation in the United States. The employer may meet this requirement by showing that the degree is normal in the industry or common at a similar place of employment; that the nature of the specific duties are so complex or unique that they can be performed only by an individual with the required degree; or that the employer normally requires a degree or its equivalent for the position.
  3. A copy of the foreign national’s U.S. college degree (bachelor’s, master’s or Ph.D.) and/or foreign degree with evidence that it is equivalent to a U.S. baccalaureate degree or higher. Evidence of education, specialized training, or experience that is equivalent to a U.S. baccalaureate degree may also be submitted to fulfill this requirement. To determine equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college level education that the foreign national lacks. To show equivalency to a master’s degree, the foreign national must have a baccalaureate degree and at least five years of progressively responsible experience in the specialty.
  4. A copy of any required license to practice the occupation in the state of intended employment.
  5. A copy of any written contract between the employer and the foreign national or a summary of the terms under which the foreign national will be employed if there is no written agreement.

In the event that the employer terminates the employment of the foreign national prior to expiration of the H-1B visa, the employer is responsible for providing return transportation of the foreign national to his or her last place of foreign residence.

Duration of the Visa

An H-1B is approved by USCIS for an initial period of up to three years. Generally, t he maximum term of an H-1B visa is six years, including extensions, with the following exceptions.

Extensions beyond the Six-Year Limitation

Extensions beyond the six year limitation The American Competitiveness in the 21st Century Act (AC21), approved in 2002, provides for extension of H-1B status beyond the 6-year limit in two circumstances:

  1. USCIS may extend H-1B status in one-year increments for any H-1B foreign national who is the beneficiary of an employment-based immigration petition or labor certification which has been filed at least 365 days prior. Extensions may continue annually until the foreign national’s adjustment is adjudicated. Thus, whether the alien labor certification or the immigrant petition is pending or approved, the H-1B visa holder in question may take advantage of the extension provision. Furthermore, this provision applies regardless of country of origin.
  2. Beneficiary of an employment-based first, second or third preference petition who is eligible to adjust in the US, but is required to wait for a visa number due to the per-country limits, may obtain three year H-1B status extensions until the adjustment of status is decided. This provision applies to persons subject to the State Department’s backlogs due to the retrogression in the numbers of available visas, and is especially relevant for foreign nationals born in India, China, Mexico or the Philippines, or 3rd Preference for all countries, all of whom have the longest backlogs for immigrant visa processing.

H-1B Visa Portability

Visa portability provisions in AC21 allow a nonimmigrant foreign national who was previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files a “non-frivolous” H-1B petition for the foreign national. A “non-frivolous” petition is one that is not without basis in law or fact. Since portability provisions apply to H-1B petitions filed “before, on, or after” enactment, all foreign nationals who meet the requirement benefit from the provisions. The portability provisions described in AC21 relieve the foreign national and the employer from the need to await approval notification from the USCIS before commencing new H-1B employment.

Labor Certification Application

There have been major changes in the Immigration laws and regulations affecting the H-1B visa for professional employees. In particular, the U.S. Department of Labor (DOL) has recently published implementing regulations under the American Competitiveness in the Twenty-First Century Act (ACWIA). Some particularly onerous requirements have been placed on “H-1B dependent employers”, but the regulations also provide guidance on issues affecting all employers.

Spouses and Minor Children

A spouse or unmarried child of an H-1B visa holder is entitled to an H-4 visa for the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but may attend school in the United States. In addition, domestic workers of an H-1B visa holder can receive a B-1 business visa and obtain work authorization.