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1. What is an H-1B?
An H-1B visa is used to enable companies to employ foreign nationals in the United States for a period of three years. An extension for an additional three years is permitted, and extensions beyond six years may be obtained in certain situations. In order to obtain an H-1B status, a petition is required to be filed with the Department of Labor and the United States Citizenship and Immigration Services. Once the H-1B petition is filed, it can take from two weeks (premium processing) to six months for the H-1B to be adjudicated. Filing with premium processing ensures adjudication within 15 days. The government filing fee is an additional one thousand two hundred twenty five dollars ($1225.00) for premium processing. 2. Who can file an H-1B?
The employer must reside in the United States and should have employer-employee relationship with the alien. The employer should have an I.R.S. tax identification number. A corporation can file for its owner or director as long as he/she is qualified under H-1B regulations.
3. What are the qualification requirements of the employee?
An H-1B is a specialty occupation position. Generally the employee should have a Bachelor’s Degree in the field of study related to the position for which he/she is seeking H-1B. In addition, the employee must be licensed to practice in the position sought if applicable. Certain positions require a license to practice in a particular state for e.g. Attorney, Architect, and Teacher.
To qualify as a specialty occupation, the beneficiary must meet one of the following criteria:
Hold a United States Baccalaureate or higher degree required by the specialty occupation from an accredited college or university; Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university; Hold an unrestricted state license, registration or certification which authorizes him or her to fully practice and be immediately engaged in that specialty occupation in the state of intended employment; or Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, as well as recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
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4. What types of positions qualify for H-1B?
H-1B visas are for positions in a specialty occupation. The term specialty occupation is defined by the Federal Regulations as an occupation that requires:
Theoretical and practical application of a body of highly specialized knowledge, and The 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.
5. When can an H-1B be filed?
The H-1B is subject to a numerical limit. The current numerical limitation (or referred to as the “quota”) is 65,000 that can be filed with the USCIS. The numerical limitation reserves 6,800 H-1B visas for nationals of Singapore and Chile. The H-1B period starts from October 1 each year. An H-1B petition cannot be filed more than 6 months in advance (April 1 of each fiscal year). For the fiscal years 2007-08 and 2008-09, the numerical limitation was exhausted on the very first day, April 1.
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6. Are all applications for H-1B counted against the numerical limitation?
Current Status
| Subject to Numerical Limitation
| | Candidates residing abroad | The candidates residing abroad who are not already on an H-1B visa are subject to the quota. If the case is approved, the employee can start working from October 1. If the quota is "open" after October 1, the candidate pursuant to approval of the petition can start working from the start date of the petition. | | Candidates already on an H-1B Visa | The "Transfer" of H-1B can take place any time of the year as they are not subjected to the quota. | | Candidates in valid status in the United States on some other status for e.g. Student (F-1) | The candidates who are already inside the U.S. on some status are subject to the quota. | | A person who has been on an H-1B status for the last six years and has not left the United States for more than one year | This does not count towards the quota. Therefore, the cases which are filed for Extension of an H-1B status and "Transfer" of an H-1B status does not count towards the quota. | | An H-1B petition filed by an institution of higher education as defined in the Higher Education Act of 1965, section 101 (a), 20 U.S.C. section 1001(a). | Does not count towards quota | | An H-1B petition filed by a nonprofit organization or entity related to or affiliated with an institution of higher education. | Does not count towards quota | | A nonprofit research organization or a governmental research organization, as defined in 8 CFR 214.2(h)(19)(iii)(C). | Does not count towards quota | | An H-1B petition filed on behalf of a beneficiary who is on J-1 non immigrant status and has received a waiver of the two-year foreign residency requirement described in Section 214 (l)(1)(B) or (C) of the Act | Does not count towards quota |
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7. When can an employee start working for the company?
The candidates outside the United States/changing status to H-1B can begin on October 1st if their H-1B petition is approved. The candidates outside the United States must apply for a visa and enter the United States on or after October 1st. The candidates filing a change of status can work from October 1st. If the H-1B quota is open after October 1st, then the beneficiary can start working from the start date of the petition. A person on an H-1B status may accept new employment upon the filing of a new petition by the prospective employer if: He/She was lawfully admitted; The new petition is "nonfrivolous"; The new petition was filed before the date of expiration of the period of stay authorized; and Subsequent to such lawful admission, the H-1B beneficiary has not been employed without authorization before the filing of such petition.
8. What are the government filing fees for filing the H-1B petition?
The basic fee for H-1B is $460. A U.S. employer filing an H-1B petition must submit the $460 petition filing fee and, unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement, an additional fee of either $750 or $1,500. An employer with a total of 25 or less full-time equivalent employees in the United States (including any affiliate or subsidiary of the employer) is only obligated to pay the $750 fee. An employer with a total of more than 25 employees is obligated to pay the $1500 fee. The companies that file an extension for an employee do not have to pay the fraud prevention fee. For all 2nd and subsequent extensions, the company does not have to pay the $750 or $1500 fee.
Additionally, the Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the United States in H-1B, L-1A or L-1B nonimmigrant status. The H-1B petitioners subject to the new law must submit the fee with any H-1B petition filed: To seek initial nonimmigrant status for an alien described in subparagraph (H)(i)(b) of INA section 101(a)(15), or To obtain authorization for an alien having that status to change employers.
The new fee does not apply to extension requests filed by the same petitioner for the same employee. New H-1B Case/ Transfer to a new employer
| Filing Fees
| | Employers - less than 25 employees | $460
$500 (Fraud Prevention fee for initial H-1B or transfer to new employer)
$750
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$1710 | | Employers - more than 25 employees | $460
$500 (Fraud Prevention fee for initial H-1B or transfer to new employer)
$1500
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$2460 + $2000 (If applicable as explained above) | Extension Case with the same Employer
| | | Employers - less than 25 employees | $460
$750
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$1210 | | Employers - more than 25 employees | $460
$1500
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$1960 | Extension Case with the same Employer (2nd Extension with the same employer) | | | Employers - less than 25 employees | $460 | | Employers - more than 25 employees | $460 |
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9. What salary must be paid to the employee on H-1B status?
Generally the employer must pay the wage greater of the minimum prevailing wage for the position offered for the metropolitan area of intended employment or the actual salary for the position for that employer. The prevailing wage can be obtained from the U.S. Department of labor or from the private survey companies.
10. What is the employee’s status upon H-1B Termination?
H-1B employment is at will employment. An employee on H-1B status is immediately out of status upon termination of employment. Contrary to popular opinion there is no grace period. The employer should immediately notify the USCIS of the termination of the H-1B. The employee's H-1B status is terminated upon the termination of employment and is not extended by the payment of severance pay.
If the company has a Reduction in Force (RIF) policy and gives the employee severance pay, the H-1B is out of status from the day s/he stops employment and not when his/her severance pay ends.
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