H-1B VISA: Professional Workers

The H-1B visa allows foreign professionals to work in the United States for a temporary period of time and is quite versatile. Arguably the best business visa offered to foreign workers, the H-1B visa is originally issued for a three-year period of time and is renewable for another three years. In many circumstances the foreign professional can apply for one-year or three year extensions past the six years normally given. Another advantage is that this visa provides enough time for a worker to obtain a green card. To obtain the H-1B visa, the person must apply at the U.S. consulate in their home country, unless already present in the United States in other valid status.

Requirements for an H-1B Visa:

Three main factors determine eligibility for this visa:

The position offered must require a bachelor’s degree or higher in a specified field or fields
The applicant must have the specified bachelor’s degree OR have the equivalent of a bachelor’s degree via work experience/education
The sponsoring company must be willing to pay the “prevailing wage”

Given the eligibility factors, the H-1B visa provides great versatility for employers and applicants alike. For example, I have obtained H-1B visas for a wide variety of professionals, including: Winemaker, Financial Analyst, Aquatics Director, Pre-School Teacher, Software Engineer, Account Executive, Therapist/Case Worker, Intern Architect.

Definition of U.S. Bachelor’s Degree Equivalent:

In order to qualify for an H-1B visa, the applicant must have a four year degree from a U.S. college or university or the equivalent of this degree. There are two ways to demonstrate this equivalency: via a full four year foreign degree or via education and professional work experience.

If the applicant has a post-secondary degree based on four years of study, this will generally be the equivalent of a U.S. bachelor’s degree. To determine this, the degree must be submitted to an accredited independent credentials evaluator, who will then certify the U.S. degree equivalence. This certification is then submitted to DHS along with the H-1B petition.

An applicant may also relying on a combination of education and professional work experience to demonstrate equivalency to a U.S. bachelor’s degree. Three years of progressively responsible work experience may be substituted for each year of college level education that the applicant lacks. To determine this, the degree and detailed proof of experience must be submitted to an accredited independent credentials evaluator. In addition, the documentation must be evaluated by two college professors who work in the specialty, who will then certify the U.S. degree equivalence.

Important Filing Deadlines:

The H-1B visa category has very strict filing deadlines, unless the applicant or employer is not cap-exempt. DHS issues only 65,000 new H-1B visas per fiscal year, which begins on October 1 of each year. This may sound like a lot of visas, but it isn’t.

That is because in years of high demand, the visa cap may be reached on the first filing day. For example, in 2007, DHS received approximately 120,000 H-1B applications within the first two filing days. This means that if you did not apply within the first two available days, that you could not apply until the following year! DHS conducted a lottery to select the lucky 65,000 petitions.However in 2009, the H-1B cap was not even reached in the first week of filing. As you can see, the H-1B filing results are inconsistent year to year. For this reason, I highly recommend that an applicant file on April 1 or face the potential risk of being “capped” out of the process and having to wait a full year before applying again. Under the H-1B cap, applicants may file 180 days prior to the October 1 start date (April 1 of each year).

Given the time sensitive nature of the H-1B filing system, it is highly recommended that you prepare your petition early and have it ready to submit on the first filing day. Working with a competent immigration attorney is imperative, as any procedural or substantive errors will lead to a rejected H-1B packet and another year’s wait for the H-1B visa.

H-1B Numerical Exemptions:

The Department of Homeland Security caps the number of H-1B visas that can be approved for first time applicants each year. Currently only 65,000 visas are available annually. This sounds like a lot, but typically the quota caps within weeks and in 2007 it was reached the first filing day.

All new H-1B visas begin on October 1, which is the first day of the fiscal year. An employer can and should apply for that visa up to 180 days prior (April 1).

Luckily, there are several applicants who are exempt from the cap. These include:

Applicants who obtained a Master’s degree or higher from a U.S. institution are subject to a separate yearly quota of 20,000 Technically, it appears that an applicant who obtained this degree at a for-profit institution is not eligible for the cap, although it does not appear that DHS is applying this rule at this time
Some Applicants who are current in J-1 status and obtained a waiver of the two year home residency requirement (only in very limited circumstances)
Applicants who are either already in H-1B status or had H-1B status in the past six years even if they have been out of the U.S. for more than one year since attaining H-1B status
Institutions of higher education: DHS defines this as a public or other nonprofit institution that is nationally accredited, authorized by their state to provide an education program for which the institution awards a bachelor’s degree or higher or two year program that counts as full credit towards a bachelor’s degree
A Non-profit institution related or affiliated with an institution of higher education:Related or affiliated is not clearly defined but can include: sharing the same board or federation, shared ownership, attached as branch, cooperative or subsidiary. I have also had some success where the non-profit can produce signed “affiliation agreements” to provide clinical training or teaching within the institution or as a part of the students’ graduation requirements.
Non-profit research organization or governmental research organization

H-1B Fee Exemptions:

The employer is legally required to pay most DHS filing fees for H-1B petitions. These can be fairly hefty so fitting into the fee exemptions is especially important. Generally the fees include the following:

Form 129 Basic Filing Fee: $320
(Every employer pays: no exemption)

Fraud Fee: $500
(Every employer pays this fee one time for each H employee: no exemption)

Additional Fee: $750 (25 or less employees)
$1500 (more than 25 employees)
(Employer pays this fee the first two times filing an H-1B petition for each employee)

Exemption to Additional fee:

Institution of higher education
Defined as a public or other nonprofit institution that is nationally accredited, authorized by their state to provide an education program for which the institution awards a bachelor’s degree or higher or two year program that counts as full credit towards a bachelor’s degree

A non-profit institution related to or affiliated with an institution of higher education that provides clinical training

Related or affiliated is not clearly defined but can include: sharing the same board or federation, shared ownership, attached as branch, cooperative or subsidiary. I have also had some success where the non-profit can produce signed “affiliation agreements” to provide clinical training or teaching within the institution or as a part of the students’ graduation requirements.

Primary or secondary institution (non-profit or public)

A non-profit entity engaging in an established curriculum related clinical training of students registered at these institutions

Non-profit research organization or governmental research organization

If the employer is filing an H-1B extension request for the second time (That means the third H petition filed for that employee, by that employer)

H-1B Limitations If Company Received Financial Assistance under the Troubled Asset Relief Program (TARP):

In February 2009, Congress passed the Employ American Workesr Act (EAWA). This prohibits companys that obtainaed financial assistance under thte Troubled Asset Relief Program (TARP) or section 13 of the Federal Reserve Act from hiring new H-1B employees. HOWEVER: this limitation does not apply if the applicant first worked for the company in F-1 Student Status pursuant to Optional Practical Training.

H-1B Visa Holders May Apply for a Green Card:

H-1B Visa Holders may apply for a green card. There are three steps to obtaining a green card via employment. To learn more, please click on the following: step one (labor certification application); step two (I-140 immigrant petition) and step three (green card application).

Procedures to Obtain H-1B Status and an H-1B Visa:

There is a two step process for applicants who are outside the United States. First the employer files an H-1B petition with DHS inside the United States. Once the application is approved, the file is sent to the U.S. Consulate in the applicant’s country of origin for further processing. The applicant then applies for the H-1B visa at the U.S. consulate in their home country.

The U.S. Consulate may issue a multiple entry H-1B visa that is good for three years or may issue a one time entry visa which expires after 30 days. This visa means the recipient may apply for entry to the United States within the time periods listed on the H-1B visa. This visa does not guarantee entry to the United States. This visa does not determine the length of time a person may remain in the United States. All this visa does is allow the recipient to ask for entry to the United States at the port of entry (airport, seaport, land entry). At the port of entry, a DHS officer will then determine if the applicant is allowed to enter the U.S. and for how long. The officer will note the visa category and the final day of authorized stay on an I-94 card and then staple this card into the applicant’s passport. The H-1B visitor must leave the U.S. by the date listed on the I-94 card unless having applied for an extension or change of status to a new non-immigrant visa category.

For those applicants lawfully in the United States, the employer files an H-1B petition with DHS indicating a request to change the applicant’s status. The applicant does not need to depart the U.S., instead automatically switches to H-1B status on the start date indicated on the DHS approval notice.

Other Business Visas That Might Apply:

In addition to H-1B visas, DHS also grants business immigration visas to investors, intra-company transfer employees and applicants seeking on-the-job training. Some categories require a bachelor’s degree, but several work visas exist for those lacking a four year college level degree. For more information about these business immigration visas, please read these articles:

If you think you need a lawyer to handle your immigration case, please contact Ms Troy to arrange a consultation to discuss your options. Located in San Francisco, Immigration Attorney Christine Troy can help guide you through the various legal processes and resolve any issues regarding your case. Ms Troy works on cases in San Francisco, the San Francisco Bay Area, Northern and Southern California, across the United States, and internationally.

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