As a general overview, the H-1B visa is for professional workers to come and work in the United States. The H-1B program has an annual quota. Each fiscal year which begins on October 1, the USCIS may approve 65,000 H-1B visas to individuals with a bachelor degree. The program also allocates an additional 20,000 visas to US master degree holders.
The USCIS may accept H-1B applications 6 months in advance of the first day of the fiscal year, October 1. Based on recent changes to the program, the USCIS permits companies to register for a H-1B employer account. The USCIS designates a date in March to allow the company to register their prospective H-1B applicants. As demand typically surpasses the number of available spots, the USCIS has been holding a random lottery to select H-1B applicants who, if selected, may submit a complete application for H-1B status. If approved, the applicant may begin working no earlier than October 1 under H-1B status.
Information on the H-1B registration account may be found here.
H-1B can be for part time or full time. Further, an applicant may work in H-1B status for more than one company. Each company must file an H-1B petition.
H-1B status may be granted for a total of six years. The initial maximum period is three years. Then, an applicant may be granted an additional 3 years. If an applicant reaches the total six years and has not filed a greencard application, then s/he must leave the US and stay outside for a one year period before s/he will be allowed to seek a new 6 year H-1B term. During an applicant's stay in H-1B, s/he may transfer the H-1B to a new sponsoring company.
During the stay in H-1B, a company may sponsor the applicant for the employment based greencard (usually referred to as "PERM"). If a company has sponsored the applicant for the greencard and the process has been pending for at least 365 days by the time the applicant reaches the 6th year in H-1B status, then the applicant may extend his H-1B in 1 year increments until the I-140 is approved.
Company minimum requirements: There are no specific requirements for a company to be a sponsor. New companies may use H-1B labor. However, the USCIS has the right to request proof that the company has sufficient work and finances to support the H-1B worker.
Applicant minimum requirements: The minimum requirement is a bachelor degree. The company must be offering the applicant a temporary job in a position where the minimum requirement is a bachelor degree in a specific or extremely narrow range of majors. It is not sufficient that the applicant possess a bachelor degree. Rather, the position itself must, as a minimum, require a specific bachelor degree in a specific major or narrow range of majors to qualify.
Wage Requirements: Although an H-1B can be part time or full time, the company has an obligation to pay the higher of the prevailing wage established by the Department of Labor OR the actual offered wage. In order to research wage information, it can be found at http://www.flcdatacenter.com.
General Steps: The H-1B has 3 general steps:
- Filing of Labor Condition Application (LCA) by the company wherein the company provides information to the Department of Labor about the job opportunity, the working location, the prevailing wage and the offered wage. Further the company is certifying that they are agreeing to pay the higher of the offered wage or the prevailing wage. They are certifying that there are no strikes/lockouts in the place of employment. They are also certifying that they are agreeing to pay the reasonable return transportation costs if the H-1B employee is terminated.
- Once the LCA is certified by the Department of Labor, then the company may file the petition with the supporting documents.
- Once the H-1B is approved, the applicant may begin working. If the applicant is in the US, then the applicant may begin working upon approval of the change of status. If a change of status is granted, then the applicant may not travel outside the US unless the applicant visits the US Embassy or Consulate in his/her hometown to obtain the H-1B visa stamp in order to return to the United States.
H1B visas are complicated and this brief descriptive article is intended to briefly describe the most frequently encountered H-1B situation. Everyone's situation varies so please feel free to contact us at 213-387-2888 to set up a consultation.