Cleveland, Ohio Immigration Attorney

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. The purpose of the H-1B visa is to allow U.S. employers to hire the best talent for their businesses and especially in “specialty occupations.”

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). For more than 20 years our firm has obtained H-1B visas for accountants, architects, attorneys, computer programmers, engineers, health care workers, pharmacists, physicians, researchers, software design engineers, system analysts and others. Not all job duties rise to the level of a “specialty occupation” and as this is a base eligibility issue counsel and the employer should be mindful of how the case is presented to USCIS.

Another eligibility factor is that the foreign national must have the required amount of education and experience in that an H-1B visa requires at least a U.S. bachelor’s degree or its equivalent. A general degree may not be sufficient and some specialized experience may be necessary so that the education and employment history are necessarily tied to the proposed job duties.

The U.S. employer must file a Labor Condition Application (LCA) with the Department of Labor. The LCA will set out where the foreign national will work and that the employer will pay at least the “prevailing wage.”  The prevailing wage is the wage associated to the job duties based on the location of the job and the level of experience. The LCA also requires the U.S. employer to make specific attestations regarding the terms of employment.

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; making it global. Human resource managers and C-level personnel can select the most qualified candidates for their business regardless of borders. Since H-1B professionals can work for the petitioning company up to six years the H-1B visa 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,” or lawful permanent resident status, while they are in the U.S. and working for the employer. This provides the petitioning employer even more stability and provides the employee great incentive. Unfortunately Congress has capped the number of people who can use this visa.

The “Cap” on H-1B Visas

Currently the annual numerical quota or “cap” for new H-1B visas is 65,000. There is an additional 20,000 H-1B visas set aside for those potential employees who earned a U.S. master’s degree or higher. Thus, the current annual quota is 85,000 annual H-1B petitions. The master’s degree cases are processed first so someone may qualify using either their U.S. master’s degree and if not selected for the lottery their case may “roll” into the bachelor’s degree lottery.

The H-1B cap opens with the U.S. government’s fiscal year which is October 1 of each year. The filing window for cap subject cases begins 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. The lottery includes a filing window of the first five business days beginning April 1. Thus if April 1 lands on a Friday, then the employer has until the following Thursday (April 7) for USCIS to receive the case. 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 visa petitions are “cap subject” (counted against the numerical quota). There are exemptions from the H-1B cap for certain employers (such as universities or non-profits or non-profits affiliated with institutions of higher learning) meaning these employers can file the H-1B visa petition at any time (not just on April 1st) and not be subject to the numerical limitations. Further, the cap does not apply to those already granted H-1B cap status looking to change employers.

Role of Immigration Lawyer in the H-1B Visa Process

The H-1B visa petition requires substantial coordination between the employer, the employee and various government entities including, USCIS, the Department of Labor and possibly the Department of State (in case of consular processing). Experience counts as it helps streamline the process. Hammond Law Group’s team of attorneys and paralegals possess 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 (such as change in work location). Let us do the heavy lifting for you. Call us at 216-970-7102.