H-1B Visas

Philip Eichorn Co., LPA

Experienced H-1B Visa Lawyers Who Are Client-Focused

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. H-1B visa holders can travel internationally with a fair amount of ease and they have a clear path to getting their green card.

Anyone non-citizen with a bachelor's degree (or equivalent training and experience) may be eligible for H-1B visa status. H-1B visas are granted to wide variety of professionals - including doctors, teachers, IT professionals, researchers and scientists.

H-1B visa eligibility has three basic requirements:

  1. The employee must have a bachelor's degree and will perform services in a "specialty occupation."
  2. The job must normally require a bachelor's degree or higher.
  3. The employer must pay the H-1B employee a wage consistent with the prevailing wages for that occupation (job duties and not just title) in the specified locality of employment and consistent with the wages paid to other similar workers in the company.

Advantages of H-1B Visa Holders for Employers

Hiring the right people is a basic tenant of running a business. The H-1B visa allows U.S. employers to expand their talent search globally and select the most qualified candidates. H-1B professionals can work for the petitioning company up to six years. This provides stability in the work force. There are options for indefinite employment so long as the employer begins the green card process for the H-1B visa holder by the end of the fifth year.

There is a limited number of H-1B visas available for first time applicants. However, this "cap" or quota does not apply to those already granted H-1B cap status looking to change employers. Further, some employers, such as universities, are exempt for the cap - even for first time applicants.

Advantages of H-1B Visas for Non-Citizens

Coming to a new country can often cause anxiety and uncertainty. However, H-1B status provides non-citizens the assurance of being able to work and live in the U.S. for at least the three year term with relative comfort. The Labor Conditions Application (LCA) provides assurances the employer will maintain a safe and equal workplace.  H-1B status also offers the benefit of portability, as one can easily change employers if the opportunity arises. Further, H-1B status provides a clearer path to legal permanent residency through PERM or the labor certification process.

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 cap is timed with the U.S. government's fiscal year. Hence, new H-1B petitions have a start date of October 1. Timing is everything for first time H-1B petitions because of the annual cap.

The U.S. government allows initial H-1B visas to be filed beginning April 1, and accepts petitions until the cap is met. Historically, the quota is filled within the first few days of April. In many years with this year included, USCIS receives more than 65,000 petitions in the first few days of the filing window. USCIS institutes a lottery where it picks from all the available filings for review. Given this reality and the need for you to secure your work force, prepare early and file timely with the help of an experienced immigration attorney. Remember, not all H-1B petitions are counted against the cap. There are exemptions from the H-1B cap meaning the employer can file the visa petition at any time and not be subject to the quotas.

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 and the Unites States Department of Labor. An experienced immigration attorney helps streamline the process by identifying and collecting the necessary and correct information along with the required documentation to determine H-1B eligibility. The attorney ensures all formal requirements are met, prepares all parts of the petition and timely submits them to the required government agencies. Further, the attorney apprises the employer and employee on potential issues with the H-1B petitioner and advises each on the appropriate case strategy.