Who is eligible?
An H-1B visa is a temporary nonimmigrant visa available to foreign nationals who have been offered employment in the United States in a professional position. The two basic criteria necessary to qualify for an H-1B visa are:
Practice Tip 1: What is meant by “nonimmigrant visa” ?
A nonimmigrant visa entitles a foreign national to enter the United States for a limited duration pursuant to the terms of admission as defined by the given visa class. In the H-1B context, this means that the individual applicant should only evidence an intent to remain in the United States for limited duration and purpose as controlled by the terms of the H-1B visa application.
What are the benefits of an H-1B Visa?
An H-1B visa allows a foreign national to pursue professional employment in the United States for generally up to six (6) consecutive years. The initial petition is granted for up to three years and can be extended for an additional three years.
Practice Tip 2: Six Year Limit on H-1B Visa Status:
An individual can generally remain in the United States for a maximum of six consecutive years in H-1B visa status. In addition, any time spent in the United States in L-1 visa status counts against the six-year limit. Therefore, if you are looking to hire an individual who is employed in H-1B or L-1 status by another company, it is necessary to determine the individual’s total time in the United States in H or L status in order to determine the total time that the employee can work for your company in H-1B nonimmigrant visa status. If, however, an individual has had a Labor Certification (PERM) application pending for more than one year, they may be able to extend their H-1B beyond the six year limit. Federal law provides for additional exemptions for those with an approved I-140 Immigrant Petition.
Another benefit of the H-1B visa category is that it also allows for what is referred to as “dual intent.” The dual intent doctrine allows for an individual to pursue permanent residency in the United States while in H-1B nonimmigrant visa status.
Practice Tip 3: “Dual Intent” allowed for H-1B visa holders:
An individual in H-1B visa status can have both nonimmigrant and immigrant intent. This allows an H-1B visa holder to lawfully pursue U.S. Permanent Residence while in the United States.
H-1B Timing Issues:
It is important to consider timing issues when hiring an individual who requires an H-1B visa. As a rule of thumb, you should allow several weeks for the complete process. The amount of time can increase where the individual does not hold a bachelors degree but can show the equivalent of a bachelors degree through education, training and experience.
The first step in obtaining an H-1B visa, is preparing, filing and obtaining certification of a Labor Condition Application (LCA). The LCA is filed electronically with the United States Department of Labor and generally takes 5 to 7 days for processing.
Practice Tip 4: Plan Ahead: Filing the LCA in Advance
Due to the length of time required for LCA certification, it is sometimes prudent to file the LCA before an offer has been accepted, or even made. After the Department of Labor has certified the LCA, the H-1B petition may be filed. Adjudication of the H-1B petition can take several months, depending on the location of the company and the case load of the applicable USCIS Service Center.
Practice Tip 5: The H-1B Cap:
The current H-1B annual quota is 65,000 per year with an additional 20,000 allotted to those with a U.S. Master's degree or higher. The U.S. Government’s fiscal year is from October 1 through September 30. In prior years, this cap has been exceeded, which means there is only a short window for employers' to file their H-1B petitions.
Practice Tip 6: Extensions of H-1B Stay
Where the H-1B petition is being filed to extend the stay of a current employee in H-1B status, the extension must be filed with the USCIS prior to the expiration of the current approval. The employee is then granted an automatic 240 extension of work authorization while the petition is pending. The employee should not leave the United States, however, during the pendency of the H-1B extension petition.
Practice Tip 7: Export Control Laws
The Export Administration Regulations (EAR), as issued by the U.S. Department of Commerce, may require an employer to obtain an export license in order to employ certain foreign nationals, depending on the technology involved and the nationality of the prospective employee. Violations of the EAR may result in revocation, suspension or denial of a company's future export privileges as well as fines or possible criminal charges. In order to avoid such penalties it is prudent to consult with you corporate counsel and / or outside legal specialists regarding the technologies and countries covered by the EAR. Where an export license is necessary for the hiring of a foreign national, it is also prudent to condition employment on the receipt of an export license for the employee.
Please note that this memorandum provides general information and is not intended to be a substitute for specific legal advice regarding an individual matter. As the immigration laws are constantly changing, we strongly encourage you to work closely with legal counsel when pursuing any employment-based immigration benefits. If we can be of further assistance to you or your employees regarding this or any other area of Corporate Immigration Law, please contact our office directly.
An H-1B visa is a temporary nonimmigrant visa available to foreign nationals who have been offered employment in the United States in a professional position. The two basic criteria necessary to qualify for an H-1B visa are:
- The professional position offered requires at least a Bachelor's degree in a specific field or fields (i.e., accounting); and
- The individual for whom the H-1B visa is sought holds at least the minimum degree required (Bachelor's or higher, or its equivalent) in the given field(s).
Practice Tip 1: What is meant by “nonimmigrant visa” ?
A nonimmigrant visa entitles a foreign national to enter the United States for a limited duration pursuant to the terms of admission as defined by the given visa class. In the H-1B context, this means that the individual applicant should only evidence an intent to remain in the United States for limited duration and purpose as controlled by the terms of the H-1B visa application.
What are the benefits of an H-1B Visa?
An H-1B visa allows a foreign national to pursue professional employment in the United States for generally up to six (6) consecutive years. The initial petition is granted for up to three years and can be extended for an additional three years.
Practice Tip 2: Six Year Limit on H-1B Visa Status:
An individual can generally remain in the United States for a maximum of six consecutive years in H-1B visa status. In addition, any time spent in the United States in L-1 visa status counts against the six-year limit. Therefore, if you are looking to hire an individual who is employed in H-1B or L-1 status by another company, it is necessary to determine the individual’s total time in the United States in H or L status in order to determine the total time that the employee can work for your company in H-1B nonimmigrant visa status. If, however, an individual has had a Labor Certification (PERM) application pending for more than one year, they may be able to extend their H-1B beyond the six year limit. Federal law provides for additional exemptions for those with an approved I-140 Immigrant Petition.
Another benefit of the H-1B visa category is that it also allows for what is referred to as “dual intent.” The dual intent doctrine allows for an individual to pursue permanent residency in the United States while in H-1B nonimmigrant visa status.
Practice Tip 3: “Dual Intent” allowed for H-1B visa holders:
An individual in H-1B visa status can have both nonimmigrant and immigrant intent. This allows an H-1B visa holder to lawfully pursue U.S. Permanent Residence while in the United States.
H-1B Timing Issues:
It is important to consider timing issues when hiring an individual who requires an H-1B visa. As a rule of thumb, you should allow several weeks for the complete process. The amount of time can increase where the individual does not hold a bachelors degree but can show the equivalent of a bachelors degree through education, training and experience.
The first step in obtaining an H-1B visa, is preparing, filing and obtaining certification of a Labor Condition Application (LCA). The LCA is filed electronically with the United States Department of Labor and generally takes 5 to 7 days for processing.
Practice Tip 4: Plan Ahead: Filing the LCA in Advance
Due to the length of time required for LCA certification, it is sometimes prudent to file the LCA before an offer has been accepted, or even made. After the Department of Labor has certified the LCA, the H-1B petition may be filed. Adjudication of the H-1B petition can take several months, depending on the location of the company and the case load of the applicable USCIS Service Center.
Practice Tip 5: The H-1B Cap:
The current H-1B annual quota is 65,000 per year with an additional 20,000 allotted to those with a U.S. Master's degree or higher. The U.S. Government’s fiscal year is from October 1 through September 30. In prior years, this cap has been exceeded, which means there is only a short window for employers' to file their H-1B petitions.
Practice Tip 6: Extensions of H-1B Stay
Where the H-1B petition is being filed to extend the stay of a current employee in H-1B status, the extension must be filed with the USCIS prior to the expiration of the current approval. The employee is then granted an automatic 240 extension of work authorization while the petition is pending. The employee should not leave the United States, however, during the pendency of the H-1B extension petition.
Practice Tip 7: Export Control Laws
The Export Administration Regulations (EAR), as issued by the U.S. Department of Commerce, may require an employer to obtain an export license in order to employ certain foreign nationals, depending on the technology involved and the nationality of the prospective employee. Violations of the EAR may result in revocation, suspension or denial of a company's future export privileges as well as fines or possible criminal charges. In order to avoid such penalties it is prudent to consult with you corporate counsel and / or outside legal specialists regarding the technologies and countries covered by the EAR. Where an export license is necessary for the hiring of a foreign national, it is also prudent to condition employment on the receipt of an export license for the employee.
Please note that this memorandum provides general information and is not intended to be a substitute for specific legal advice regarding an individual matter. As the immigration laws are constantly changing, we strongly encourage you to work closely with legal counsel when pursuing any employment-based immigration benefits. If we can be of further assistance to you or your employees regarding this or any other area of Corporate Immigration Law, please contact our office directly.