H-1B Visas

Hammond Law Group, LLC

Client-Focused, Experienced H-1B Visa Lawyers

What is an H-1B Visa?

An H-1B visa allows foreign professionals to work for certain employers in the U.S for six years (and longer in some situations). The initial H-1B visa is issued for three years. It can be extended for at least another three years depending on certain factors.  The purpose of the H-1B is for U.S. employers to obtain foreign workers for specialty occupations.

Eligibility usually hinges on whether the job is a specialty occupation and whether or not the beneficiary meets the requirements.  The process of obtaining an H-1B includes filing a Labor Condition Application with the Department of Labor and filing a visa petition with USCIS.  USCIS can issue a request for evidence or notice of intent to deny if they see an eligibility issue with the petition.  Upon approval, the beneficiary either changes status (from another nonimmigrant status) or processes through the consulate and gets a new visa stamp.  Denials can be appealed to the AAO or federal district court.

Specialty occupations are defined in the Immigration and Nationality Act.  The law states a specialty occupation is "[one] that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.  INA 214(i)(1).

Per the regulations (which are the INS and DHS interpretation of the statute) there are several basic requirements used in qualifying a job as a specialty occupation:

  1. A bachelor's degree or higher or the equivalent (training and experience) is normally the minimum entry requirement for the position.
  2. The employer normally require a bachelor's degree or higher or its equivalent for the position.
  3. The degree is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree.
  4. 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 degree or higher.

Advantages of H-1B Visa Holders for Employers

Hiring the right people is a basic tenant of running and growing a business. The H-1B visa allows U.S. employers to expand their talent search globally and select the most qualified candidates for their business. Since H-1B professionals can work for the petitioning company up to six years the H-1B provides stability in the work force. Since H-1B visas are considered "dual intent" visas, a U.S. employer can petition for the visa holder for their green card while they are in the U.S. and working for the employer.

Unfortunately there are a limited number of H-1B visas available for first time applicants.

The "Cap" on H-1B Visas

Currently the annual quota or "cap" for new H-1B visas is 65,000. There is an additional 20,000 H-1B visas set aside for those employees having a U.S. master's degree or higher. Thus, the current annual quota is 85,000 annual H-1B petitions.  The master's cap cases are processed first so if someone may qualify using either their master's degree or their bachelor's degree, it is advisable to file both if they are cap subject cases.

The cap opens with the U.S. government's fiscal year which is October 1 of each year.  The filing window for cap subject cases opens on April 1 each year.  Historically, the number of petitions filed is substantially more than the cap.  When this occurs USCIS holds a lottery for selection for processing.  If the case is selected in the lottery, USCIS will process it.  If the case is not selected, the filing and the filing fees are returned to the employer.

Not all H-1B petitions are counted against the cap. There are exemptions from the H-1B cap which means certain employers (such as universities or non-profits or non-profits affiliated with institutions of higher learning) can file the visa petition at any time and not be subject to the quotas.  Further, the cap does not apply to those already granted H-1B cap status looking to change employment.

Role of Immigration Lawyer In The H-1B Visa Process

The H-1B petition requires substantial coordination between the employer, the employee and various government entities including, the United States Citizenship and Immigration Service, the United States Department of Labor and possibly the Department of State. Experience counts as it helps streamline the process.  The attorneys at Hammond Law Group have decades of experience in preparing and filing H-1B cases for both cap subject and cap exempt cases.  As well, the team at HLG routinely protects the employers and employees alike by timely filing extensions, changes of employment or modifying the original filing to coincide with material job changes.  Let us do the heavy lifting for you.  Call us at 866-448-2994 or 216-298-1191.