The "specialty occupation" category is the one that applies to most employers and individuals. It refers to jobs for which the usual requirement is a U.S. bachelor's degree or the equivalent in a specific field and for which the foreign national employee has a relevant degree or the equivalent. Examples of jobs that qualify include accountants, engineers, information technology professionals, pharmacists, scientists, and teachers.
There is a cap of 85,000 visas for first-time applicants each federal fiscal year, which runs October 1 to September 30. This cap includes 65,000 "regular" H-1B slots and 20,000 slots for people with master's degrees or higher. (Some jobs are also "cap-exempt.")
Here are the basics on the H-1B visa:
There are two basic requirements to satisfy the specialty occupation standard. The first is that the employer's job must require a specific bachelor's degree or the equivalent in combined education and experience. The second is that the foreign national employee must have a relevant degree or the equivalent. While this sounds simple, it sometimes can become quite complex.
The U.S. government's H-1B regulations provide four ways an employer can demonstrate that its job requires a bachelor's degree:
For jobs such as accounting, engineering, and many information technology professions, it's clear that the applicant needs a specific bachelor's degree to get the job. For other jobs, it's less clear. For example, marketing and sales jobs often present challenges in the H-1B visa category, because employers typically accept a wide range of degrees. For example, Sales Representatives might have degrees in business, marketing, psychology, history, communications, political science or other fields. This makes it difficult to demonstrate that a specific bachelor's degree is required.
To evaluate the first criteria above, USCIS often looks to the Department of Labor's Occupational Outlook Handbook (OOH), which discusses the typical educational requirements for many different jobs. While the OOH is not always conclusive or up to date with market realities, USCIS considers it very persuasive.
For the second criteria, a good approach, if you're the employer, is to look at job postings for comparable positions at organizations similar to yours to see if other employers require a specific bachelor's degree. When searching for jobs at other organizations, be sure it's in the same industry. For example, if your organization is a power company, then you want to look for the same job at other power companies.
Under the third criteria, you need to look at the educational qualifications of other people your company has hired for the same job to determine whether you've been consistent in requiring a specific degree. If you have ten Marketing Assistants, for example, and nine of them had marketing degrees when you hired them, you likely can show that the job requires a marketing degree.
Finally, the fourth way to demonstrate that the job requires a specific bachelor's degree is somewhat nuanced and likely requires some type of supporting evidence, such as a letter from a professor, to justify why the job duties are so complex that you need to have a specific degree.
After demonstrating that the job being offered requires a specific bachelor's degree, the employer must make sure that the foreign national being sponsored for the H-1B visa has a relevant bachelor's from a college or university in the United States, the foreign equivalent of a U.S. bachelor's degree, or the equivalent in combined education and experience.
For foreign degrees, it's often a good idea to have a professional credentials evaluation firm review the diploma and transcript and issue a formal report on the U.S. equivalency. Be aware that some countries offer three-year bachelor degrees, which will not qualify for an H-1B visa. If the prospective H-1B worker has relevant experience, however, you might be able to obtain an evaluation of the educational equivalency.
USCIS uses a three-for-one formula, whereby three years of progressive employment is the equivalent of one year of university studies. "Progressive" means that the employment became more responsible or complex over time. It therefore could be possible for someone with 12 years of progressive employment to qualify for an H-1B visa.
There are some jobs, such as professional engineers, pharmacists, physicians, and public school teachers that legally require a state license to perform them. In such cases, the employer will need to submit a copy of the prospective employee's license with the H-1B petition. The state licensing agency might not grant the license until the employee is present in the U.S. in H-1B status.
Recognizing the circular nature of the problem, USCIS will approve the H-1B petition for one year to allow the employee to obtain the occupational license. In most cases, one year is enough time to get the license and submit a petition to extend the employee's H-1B status.
Employers should be clear in the H-1B petition about whether a license is necessary for the job. For example, an engineer or accountant who works in-house for a company may not need a license. In that case, clearly state in the petition that a license is not required.
Each federal fiscal year, a base amount of 65,000 new H-1B visas are made available. This amount is reduced by 6,800 for applicants from Chile and Singapore, under free trade agreements. However, the amount is, in effect, increased by a rule stating that the first 20,000 petitions each year filed for people with U.S. advanced degrees (master, professional, doctorate) are exempt from the 65,000 base amount. This in effect brings the annual quota up to 85,000.
The federal fiscal year runs from October 1 of the current year to September 30 of the following year. Employers may file H-1B lottery applications during the online registration period for the fiscal year when the employee is set to begin work.
The H-1B application process has two phases:
In recent years the initial online registration period has run in early March, with USCIS making its lottery selections by March 31. If selected, employers have at least 90 days from April 1 to file their H-1B petitions.
Based upon the very high demand for H-1B visas in recent years, which has resulted in about 25% lottery selection odds, the pre-filing lottery is a welcome change. In the past, USCIS conducted a random lottery to allocate visas only after full H-1B petitions were filed. The lottery system involves a simple electronic registration process. Only if selected can employers submit H-1B petitions. Even though the actual petition submission happens after the lottery selection, it’s essential to ensure that the job and individual both qualify for the H-1B visa. There is no point in entering the lottery only to later have USCIS deny the petition because the job or individual did not meet the requirements. Therefore, it's prudent to be ready to file the complete, qualifying petition as soon as USCIS announces registration selections.
If USCIS does not receive enough H-1B petitions to allocate the 85,000 visas, it conducts supplemental lottery rounds from among the lottery entries submitted in March. Employers do not need to ask to be included in any subsequent selections. Rather, an entry in March will remain eligible until selected or the end of that fiscal year’s selections, which could happen as late as December or January after the first round in March.
The H-1B cap applies to workers obtaining H-1B status or an H-1B visa for the first time or to those who previously were in the U.S. in H-1B status for six years, spent one year abroad and are now eligible for another six-year period. The cap does not apply to H-1B workers who will work for or at a university or affiliated nonprofit or research institute. Examples include teaching hospitals, which have affiliations with universities, and primary and secondary schools, which often have affiliation agreements with local universities for student teaching programs. Please be aware, however, that someone currently working at an exempt employer, such as a university, who then moves to a cap-subject employer (most private sector organizations), becomes subject to the cap and will require one of the 85,000 visas.
Under the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"), an H-1B worker may change employers once the new employer's petition is pending with USCIS). (A change in employers always requires filing a new visa petition). This convenient option is called "H-1B portability." It applies to noncitizens who previously had an H-1B visa or were in the U.S. in H-1B status. There are three basic requirements to taking advantage of this option:
For people in the United States, USCIS has interpreted H-1B portability as applicable only to those who currently have H-1B status, though the statute itself isn’t clear on this point. USCIS takes the position that portability does not apply to someone who is now in H-4 status but who previously had H-1B status, for example.
In this latter situation, the new employer first would need to obtain approval of its petition before the person would be authorized to start working. An example of how this could happen is if a husband and wife both are working in the U.S. in H-1B status. If the husband loses his job, he can change to H-4 status as his wife's dependent. If another employer then wants to hire him, USCIS takes the position that AC21 portability does not allow him a quick path through the process. Rather, this new employer needs to wait for USCIS to approve the H-1B petition before the husband can start working.
Another scenario is for someone who is outside the United States. If they still have a valid H-1B visa from a current or prior H-1B employer, they can use that visa along with the Receipt Notice (USCIS Form I-797) for the new employer's H-1B petition in order to enter the U.S. and start working.
Employers taking advantage of H-1B portability face a quandary when completing the I-9 form (Employment Eligibility Verification Form), which must be filled out for every new employee, to record the employee's work authorization documents. In the normal H-1B situation, the employee's current I-94 Departure Record, endorsed for H-1B status with that employer, and an identification document would meet the I-9 requirement. The I-9 Handbook (Form M-274) instructs employers to use the employee's current I-94 Departure Record and foreign passport as a "List A" document and to write "AC21" and the date the new H-1B employer submitted its petition in the margin next to Section 2 of the I-9 form. If you keep photocopies of documents used in preparing all of your I-9 forms as part of your policy, it is a good idea to attach a copy of the receipt notice (USCIS Form I-797) to confirm that the H-1B petition is pending.
Finally, the Immigration and Nationality Act provides that the employer must start paying the H-1B employee's wages within 30 days of when the employee enters the U.S. under the H-1B visa. If the employee already is in the United States, the employer must start paying the wages within 60 days of when the H-1B petition and worker's H-1B status becomes effective. Therefore, in the H-1B portability context for someone in the U.S., you need to be prepared to bring the employee on board within 60 days of when the H-1B petition goes into effect.
If you think you meet the requirements for an H-1B visa, your employer will need to take various steps to sponsor you. In some entrepreneurial cases, it might be possible to base your H-1B application on self-employment through a company you form and own, but this can be difficult. Demonstrating that sufficient time will be devoted to the specialty occupation, rather than to administrative duties, and that there is enough work to keep you busy, is a particular challenge.
In either case, the employer prepares and files the petition. Larger organizations might have an immigration lawyer on staff or available to assist. Smaller organizations with little or no immigration history likely will want to seek an immigration lawyer who has employment immigration experience. The process can be complex and unforgiving. Having an experienced immigration lawyer will help to ensure the petition is filed correctly and in a timely fashion.
]]>Because of the annual limit on the number of H-1B petitions that can be approved, an employer often must petition six months in advance of the date the employee is to start work. That should, in theory, leave plenty of time for USCIS to approve or reject the petition, so that the employee knows whether they can get an H-1B visa or get into H-1B status in the U.S. before the job begins.
Nonetheless, USCIS sometimes takes more than six months to adjudicate H-1B petitions, even in the best of times. The bottom line is that timing can become critical, as further discussed below. We'll focus on:
Employers willing to pay an additional amount can get "premium processing" of the I-129 petition. (That amount went up to $2,805 on February 26, 2024). Paying for premium processing service guarantees a USCIS decision within 15 calendar days of filing, or within 15 days of a response to a Request for Evidence (RFE), if USCIS issues one. (See 8 C.F.R. § 106.4.)
USCIS delays can virtually force employers to pay the extra fee for premium processing when it's available, particularly if the employee does not have any other authorization to start working on October 1.
But some H-1B petitions are not subject to the annual limit, in which case you might not need premium processing or be concerned about when USCIS will approve the petition.
For planning purposes, the key will be to learn to monitor your application while it's being processed by USCIS. Next, we'll explain how to do that, including getting your receipt number and finding out USCIS's average processing times in your category.
In an H-1B case without premium processing, after your employer has submitted Form I-129, USCIS will, normally within approximately two weeks, send a receipt notice on Form I-797. The receipt notice will contain your name (listed as the beneficiary), your employer's name (listed as the petitioner), and the address of the Service Center that has the petition.
If your employer retained an attorney, the attorney's name and address will be listed on the receipt notice, as well. If your employer filed without an attorney, the receipt notice will list the employer's address. (Be sure to review these details for correct information as well as spelling.)
In the top left-hand corner of the receipt notice is the case receipt number, which confirms the processing of the case as well as allowing you to track it through USCIS Case Status Online. For example, your receipt number might read something like this: EAC2209636548.
Once you have checked your current case status, you can get a sense of how it will progress by using the USCIS Processing Times Information website.
You will need to know the USCIS office where the form is being reviewed. Find this on the receipt notice mailed to the employer after USCIS accepted your case for processing. On the processing times web page, first select "I-129," then under "Form Category," select H-1B, and from the Field Office or Service Center dropdown menu, select the service center handling your petition.
How will you know which USCIS service center to select? The I-797 Receipt Notice name it at the bottom of the receipt. Be aware that sometimes USCIS transfers files among service centers to allocate resources. If that happens to your petition, your employer will get a notice saying which service center will handle the case.
Then click "Get processing time," and you'll be given an average. For example, it might say "2.5 months," which means USCIS will review most petitions within that time. There also is a section on "When can I ask about my case," which is explained below, for when your petition is beyond the processing time range.
The information you get from the processing times website is USCIS's best guess based on its most recent data. It's not exact, and you can't rely on it to be 100% accurate.
But if your case is outside of the estimated processing time, the employer can call USCIS at 800-375-5283 or use the link on the processing times page to place a service request. USCIS will then provide a confirmation number as well as a new estimated time of processing, typically 30 to 60 more days.
Of course, if your employer paid for premium processing, there is a guarantee of a decision within 15 days, so you should be able to rely on that. If it is taking longer, your employer might have received a Request for Evidence that needs to be responded to before USCIS can make a decision. But even so, USCIS should make a decision within 15 days after receiving your employer's response to the request.
As mentioned above, you might be applying under the H-1B cap—that is, an annual limit of 65,000 on the number of H-1B petitions approved. USCIS allows "cap" petitions to be filed six months before the start of the "fiscal year," which begins on October 1. H-1B "cap" workers can't get their H-1B status, and start their job, until October 1 at the soonest.
So many people want H-1B status in most years that there's a lottery just to be selected to apply. After several years in the planning, USCIS began implementing a new, pre-filing registration system in 2020. To get into the lottery, employers must submit an online pre-registration during a designated period USCIS announces, normally in March.
The new procedure involves a $10 per-case filing fee for the online registration. Duplicate registrations for the same employee are prohibited. If USCIS receives more than 85,000 registrations (as it almost always does), it will conduct a random lottery and notify "winners" soon after the pre-registration ends.
Employers whose petitions USCIS selected then be given a filing window in which to prepare and submit their petitions to USCIS. This typically starts in April and lasts 90 days.
]]>Most H-1B employers and workers fall into the "specialty occupation" category, meaning the usual job requirement includes a U.S. bachelor's degree or the equivalent in a specific field and where the foreign national employee has a relevant degree or the equivalent. Examples of jobs that qualify include accountants, engineers, information technology professionals, pharmacists, scientists, and teachers. For additional examples, see Types of Jobs Most Likely to Qualify for an H-1B Visa.
If the H-1B sounds like a useful one for your business to explore in its hiring plans, keep reading for basic procedures.
There is a cap of 85,000 H-1B visas for first-time H-1B visa applicants each federal fiscal year, which runs October 1 to September 30. See H-1B Visa to the U.S.: Who Qualifies? for information on the H-1B cap and how it affects when you can file an H-1B petition. This creates various complications in the application process, as mentioned below.
The employer must take several preliminary steps before putting an H-1B worker on the payroll. They are:
For a fuller explanation of these steps, see How Long It Takes to Get an H-1B Visa Petition Approved.
There are different scenarios for when the new employee may start working, depending upon whether they're in the United States or abroad.
Someone who is in the U.S. working for another employer in H-1B status might be authorized to start working for the new employer once it has received USCIS Form I-797 Notice of Action to confirm that the I-129 petition is pending. In other cases, the employer might need to wait for USCIS to approve the petition before the new employee begins working.
A prospective employee who is outside the U.S. will take the approval notice (also issued on USCIS Form I-797 Notice of Action) and a copy of the H-1B petition submitted to USCIS to the U.S. Consulate or Embassy in their home country to apply for an H-1B visa.
The visa application process and timing can vary slightly among different consulates and embassies. To check the protocol, select the particular location at https://www.usembassy.gov/.
After having received the visa, the worker may travel to the U.S. and start the job.
This information is intended merely as an introduction to the H-1B visa. See the additional articles referenced above and consult immigration counsel for further guidance.
]]>It's possible to stay in the U.S. on an H-1B visa (or in H-1B status) for up to six years. The U.S. government normally approves the initial H-1B for three years. After that, you might be eligible for a three-year extension. If you spend less than six months each year in the U.S. in H-1B status, the six-year limit does not apply. For details, see How Long an H-1B Worker Can Stay in the United States.
The time on your H-1B status starts the day you change to H-1B status while in the United States, or, if you're initially abroad, when you first enter the U.S. using your H-1B visa stamp.
Yes, there are options for staying beyond six years. You can "recapture" any time you spend outside the U.S. during your six-year period.
For example, if you spend a month each year outside the U.S. you can, after six years, recapture those six months to gain H-1B time. Or, if your employer pursues an immigrant visa (lawful permanent residence or a green card) on your behalf, you can become eligible for additional H-1B status once certain milestones are reached in the green card process.
Additionally, if you spend one year outside the U.S. after having held H-1B status, your six-year clock will restart.
The H-1B visa in your passport shows an expiration date, which is the last day upon which you can use the visa to enter the United States. If you're asking when your H-1B "status" expires (the period during which you may remain in the U.S.), however, look at your I-94 arrival/departure record.
The I-94 shows the date you last entered the U.S. and the date by which you must either leave or file a request to extend status. An I-94 card was placed in your passport when you entered the U.S. if you arrived prior to May 2013. If you entered the U.S. after May 2013 (when Form I-94 was automated) by air or by sea, you might have not received a paper card but can access your I-94 on the U.S. Customs & Border Protection (CBP) I-94 website.
Also, the CBP officer might have made a handwritten annotation in your passport for your visa class (H-1B) and date your status expires. A good practice is to check your I-94 expiration date before you leave the airport. If it does not match the handwritten date, or the date on an I-797 Approval Notice if you previously changed status, go back and ask to talk to a CBP officer to get it corrected on the spot.
Your employer can file a petition to renew your H-1B status six months before its expiration date. As long the petition gets filed before your current status expires, you may remain in the U.S. while the extension is pending. Your work authorization continues for up to 240 days, or until U.S. Citizenship and Immigration Services (USCIS) approves or denies the extension. It's best to submit the extension request as early as possible.
You do not have to travel to apply for an H-1B visa at the U.S. consulate or embassy until and unless you want to travel outside the U.S. and be able to return. The visa serves only one purpose: to gain entry into the United States. Therefore, if you weren't planning on leaving for some other purpose, you don't need the visa yet.
If you do eventually need an actual visa, it's best to apply at the U.S. consulate in your home country. If you want to apply at some other U.S. consulate (in a so-called "third country"), review the protocol at that consulate to determine whether you may apply there.
It's typically best to apply for a renewed H-1B visa at the U.S. consulate in one's home country. In some cases, it's also possible to apply for visa renewal in another country, where you would be considered a third-country national. Third-country visa processing is allowed in Canada, but there are several things to consider first.
If, for example, you're a citizen of India, you likely will need a visitor visa to enter Canada. Check with the Canadian consulate in the U.S. to review applicable visa requirements.
Also consider that, if you earned your university degree in a country other than the U.S. or Canada, the U.S. consulate in Canada might not be able to determine whether you have the proper qualifications for an H-1B visa. While this is technically a question for USCIS as part of the employer's H-1B petition process, consular officials often inquire into and examine academic credentials to make sure the person has at least a bachelor's degree. Consular officers in Canada likely are familiar with only U.S. and Canadian education. Presenting a degree from a university in some other country could be a problem.
Finally, be aware that you won't be able to return from Canada to the U.S. until you get a new visa. At your visa interview, the consular officer will put a stamp in your passport noting that you applied for a visa while in Canada. If your visa application then is delayed or denied, you won't be able to return to the United States—not even if you're renewing a visa that hasn't expired. Things that could cause a delay or denial are the issue of educational credentials as mentioned above, criminal charges or convictions, or security/background checks.
If your visa is delayed, you'll need to wait in Canada until you get your new visa. If the consulate denies the visa, you might need to return home to renew your visa at a U.S. consulate there. It might be easier just to get your visa in your home country.
After evaluating the results of a pilot program in early 2024 for a limited group of H-1B visa applicants, the U.S. State Department made plans to resurrect a stateside visa renewal program. (A former such program ended after the 9/11 terrorist attacks.) This could allow you to mail your passport and visa application to the State Department while remaining in the U.S. and to get your visa without making a trip home or to another country.
The pilot program begins January 29, 2024. The State Department has yet to provide a timeline for expansion to other visa categories.
You can change H-1B employers as many times as you'd like. You also can have concurrent H-1B employers, such as for two part-time jobs. (It's not easy, though. Each employer must get its own H-1B approval for you.) The only limitation is the six-year maximum period for H-1B status. The six years applies to you, not to your employers. For example, you can work for six different employers for one year each. You cannot work for Employer A for six years and then immediately for Employer B for six years.
One important thing to find out when changing H-1B employers is whether your current employer's H-1B petition was subject to the annual quota, which sometimes is called the H-1B cap. If you work for a so-called cap-exempt employer, such as a university, you likely have not been counted against the cap.
If you wanted to change to a company that has no connection to a university, you most likely would be subject to the cap and need to have the new employer enter you in the annual H-1B registration lottery. The lottery runs in March for jobs that will begin in October of the same year. Be sure to check into this before leaving your employer. You wouldn't want to risk finding out later that your next employer can't hire you right away or at all.
There are two issues here. The first is the basic labor law requirement that employers must pay employees for services performed. You might wish to consult a plaintiff's attorney to review your rights and options to receive your earned wages.
The second problem concerns your H-1B status. If your employer is not paying you, you won't have evidence with which to demonstrate that you've been maintaining lawful immigration status. One option is for your next employer to request "consular notification" on its H-1B petition. Once USCIS has approved the H-1B petition, you will take the I-797 Approval Notice to the U.S. consulate or embassy abroad, preferably in your home country, to apply for an H-1B visa and then return to the United States. This should avoid questions about your maintenance of status. If you already have a valid H-1B visa, you'd still need to leave the U.S. and present your existing visa and the new I-797 Approval Notice upon return.
A trip to Canada or Mexico for less than 30 days might NOT be considered a "departure" for this purpose. It therefore might be necessary to travel to another country before returning.
If the consular notification option is not feasible, you still might be able to show maintenance of status through documentation. You could write to your employer, perhaps by email, to request payment of your wages, provided that you've been working and upholding your part of the employer-employee relationship. If the employer responds by stating that it refuses to pay you, you can use that statement, along with a personal statement from you, to explain why you do not have paycheck copies.
You also might wish to submit a complaint to the U.S. Department of Labor ("DOL") on DOL Form WH-4. The DOL might open an investigation and contact you and your employer for more information. If the DOL determines that your employer has violated the law, it will require your employer to pay your back wages. Although the investigation could take several months, you can provide a copy of your complaint for the H-1B petition that your new employer is submitting, as further evidence of your efforts to maintain lawful H-1B status.
Finally, if you consult an attorney to help you recover your unpaid wages, the documentation you provide to support the new employer's H-1B petition may include an attorney demand letter to your current employer for payment of your wages or court records for a pending or resolved lawsuit.
Alcohol-related arrests can become complex with regard to immigration consequences. Consult an attorney to review the facts of your situation. To protect your confidentiality, find your own attorney, rather than the one who handled the H-1B petition (who likely represented both you and your employer and might tell your employer about the arrest).
At a minimum, the drunk-driving charge will cause delays in your visa application processing. Whenever there has been an alcohol-related conviction, such as Public Intoxication, Driving Under the Influence (DUI), or Operating a Vehicle under the Influence (OVI), U.S. State Department protocols require the consular officer to refer the visa applicant to a "panel physician" (a local doctor).
The physician will exam you to determine whether you have an alcohol dependency problem. If the conviction was within the last year, the physician will indicate that you have not shown sufficient rehabilitation. That will lead to the consular officer denying your visa application on health-related grounds. Therefore, based upon what you describe, if you just recently were arrested, applying for the visa this summer is too soon. You'll want to put off applying until it's been more than a year since the alcohol-related conviction or final case disposition, if you go through some type of court-ordered diversion program.
After the one-year period, get a complete, court-certified copy of the final case disposition before leaving the United States. Also gather copies of related documents, such as the police ticket explaining the charges and the relevant statutes for the crime and penalties. The consular officer will want to review those.
Be honest about the drunk-driving charge on the visa application form and in responding to questions from the consular officer. If you have any type of criminal conviction but do not mention it, the consular officer can deny the visa application based upon your misrepresentation, that is, for lying. It could be that the conviction would not cause the officer to deny the visa but failing to provide information about it would.
Finally, be aware of something called "prudential revocation" of visas. In late 2018, reports began surfacing of U.S. consulates and embassies revoking visas of persons in the U.S. upon learning of a DUI arrest. Such a revocation would normally become effective only when the person leaves the U.S., but in those situations, it took effect immediately and led to some people not being able to travel or even to apply to extend their stay while remaining in the United States. As of early 2024, this practice continues, and typically involves the consulate that issued the visa informing the person that the visa has been cancelled and asking them to send the passport to the consulate for a "cancelled" stamp on the visa.
Before taking any action, be sure to consult an attorney if you have any legal troubles beyond a simple traffic ticket to understand how it could affect your visa and immigration status.
]]>These reasons can involve either the employer or the employee. We'll describe them further below.
An H-1B visa or status is often denied or refused because the petitioner—that is, the employer sponsoring the foreign national for an H-1B visa—does not appear to be a real, established, operating U.S. company with the capacity to hire and pay.
A relatively new petitioning employer that has been in business just a few years will need to be prepared to provide the U.S. government with documentation, such as a tax identification number, tax returns, or financial statements, to prove its existence and revenue. Insufficient documentation can sink the application right there.
The petitioning employer should also be able to provide documentation of having an established location in the United States. This can include website printouts, brochures, photographs of the employer's premises, and any licenses or stock certificates, if necessary. In the ever-growing virtual workplace of today, there still has to be at least one physical location somewhere, even if it’s just a co-working space.
The U.S. government might also deny an petition for an H-1B visa or status because the offered employment does not qualify as a "specialty occupation." The employer must show that either:
If some of the above categories sound confusingly similar to each other, you're not alone in thinking that. Nevertheless, these are the categories the U.S. government regulations lay out. They'll be looking for one of these bulleted points to be clearly met when they assess the applicant's case.
USCIS often takes a close look at the employer-employee relationship between H-1B workers and their employers.
In past years, this became a particular problem in cases where the H-1B petition stated that the employee would work offsite at a client location. USCIS wanted to know whether the employee would truly be working for the petitioning employer, or whether the employer was trying to get around the rules by acting as a "job shop," placing employees on subcontracting assignments.
As a result, it required petitioners to provide such evidence as a contract for services, purchase order, and a clear statement that only the petitioner had control over the employee who would be working at the client location. Failure to include any of these in the initial petition often resulted in H-1B denials.
This contentious ground of denying H-1B petitions came to a head in the ITServe Alliance, Inc. v. United States Citizenship and Immigration Services litigation, which began in October 2018 and settled in May 2020. Recognizing the unstable ground of the so-called 2010 Neufeld Memo, which later became part of the 2018 USCIS Policy Memo PM-602-0157, "Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites," USCIS agreed to rescind the Policy Memo, and did so in June 2020.
The good news going forward is that USCIS no longer should deny H-1B petitions solely because the employee will work at a client location. For a previously denied petition, employers either can file a new petition or go to court to overturn the denial.
Shifts in presidential or agency priorities can mean that the same application might not be treated the same way during a different time period.
For example, following Trump's signing of the April 18, 2017 "Buy American and Hire American" Executive Order, USCIS began searching high and low for reasons to deny H-1B petitions. Some denials asserted that using an entry-level prevailing wage (Level 1 in the Department of Labor's system), which is appropriate for many jobs that require a bachelor's degree and up to two years of experience, means that the job couldn't possibly require a bachelor's degree. Such concerns had largely faded by 2020, and the Biden Administration withdrew the Buy American and Hire American Executive Order. Nevertheless, there’s no stopping a future, anti-immigration president from resurrecting it or its intent.
As another example, in 2018, USCIS began denying H-1B petitions for Computer Systems Analyst, Market Research Analyst, and Financial Analyst jobs, which previously had qualified as H-1B specialty occupations. A policy memo rescission in early 2021 restored Computer Systems Analyst as eligible for H-1B petitions, and litigation resolved the Market Research Analyst occupation as of late 2021.
Setting aside the illogical reasoning of the prior decisions, employers need to be prepared for shifting adjudication standards under different administrations.
In most cases, U.S. immigration authorities will not deny a case without providing plenty of advance warning and a chance to correct the problems. If your employer has submitted an H-1B petition to USCIS, the agency will likely issue a request for evidence (RFE) before a denial. If you applied for your H-1B visa at a consulate abroad, it first will issue a 221(g) request.
USCIS requests will ordinarily either state a list of documents that must be provided or a list of questions to explain in a letter response. The request will give a deadline by which the response is due. If the recipient does not respond by the deadline, USCIS will deny the case.
A 221(g) request is similar to an RFE, but depending on the consulate, will likely be given to the beneficiary (the visa applicant) after the consular interview. It will contain specific instructions for documentation needed and instructions on how to return these items to the U.S. consulate for further processing.
The 221(g) request typically does not contain a deadline. You simply need to wait to hear from the U.S. consulate after providing the requested information or documents.
A potential source of seemingly infinite delay at the U.S. consulate is something called "Administrative Processing." This is an additional level of review the consular officer sometimes conducts before approving or denying a visa application. Administrative Processing can happen before or after a 221(g) request. U.S. State Department guidance (as of 2022) requires visa applicants to wait at least 180 days before inquiring into the status of their applications.
The frustrating thing is that the consular officer often does not say why further review is needed. Although Administrative Processing is frequently wrapped up within a week or two, it can drag on for months and become a frustrating black hole of not knowing whether or when you'll get your H-1B visa.
For personalized assistance with applying for an H-1B visa, consult an experienced attorney. Even if your employer has hired an attorney, there might be situations in which you want to separately consult one; for example, if you have a criminal conviction on record or something else you feel hesitant about discussing with your employer.
]]>Here, we'll discuss:
As explained more fully in H-1B Visa to the U.S.: Who Qualifies?, the H-1B visa is for "specialty occupation" workers who have a job offer in the United States. In brief, this means the job being offered must require at least a U.S. bachelor's degree in a specific field, the job duties are sufficiently complex to require at least a bachelor's in a relevant field, and the worker must have a relevant degree or the equivalent combined education and/or experience.
For example, an entry-level civil engineer must have a bachelor's degree in civil engineering. If you have a bachelor's degree in accounting, you won't qualify for an H-1B visa to work as a civil engineer.
U.S. Citizenship and Immigration Services (USCIS) publishes statistics on the employers that file H-1B visa petitions and the occupations that USCIS has approved for H-1B visas. (See USCIS's "Characteristics of H-1B Specialty Occupation Workers" report; the the Fiscal Year 2022 is the most recent available as of January 2024.)
As you can see from the below list, which is from prior USCIS reports, these are broad categories for the most part.
For example, the "systems analysis and programming" entry on this list can include software engineers, computer programmers, programmer analysts, and systems analysts. Therefore, this list offers some guidance into the various occupational families, which you can explore further to identify jobs that can qualify for H-1B visas.
Be aware, however, of adjudications trends. For example, in mid-2018, USCIS began denying H-1B petitions for computer systems analysts, financial analysts, and market research analysts. USCIS had long recognized these jobs as qualifying specialty occupations. Employers went to court to request that a judge direct USCIS to approve these cases. Unfortunately, lawsuits take time. In late 2021, litigation was settled over the job of market research analyst, which again should qualify for an H-1B petition. Also, a February, 2021 policy memo rescission suggests that computer programmers, and hopefully systems analysts, again can qualify as H-1B specialty occupations.
As these developments continue, employers will want to proceed with caution and consult an experienced immigration attorney if considering an H-1B petition for one of these "analyst" job categories.
If you are a possible H-1B worker, examine the employer's actual job description and requirements carefully to make sure that a degree is required and that you have a relevant degree (or the equivalent). The occupations on the list above merely serve as a starting point. They do not include every job that can qualify as a specialty occupation for purposes of the H-1B.
You might have also heard that some consulting companies and labor brokers serve as middlemen, lining H-1B workers up to work for various U.S. employers. Such positions might receive extra scrutiny from USCIS, however, so be cautious when looking into such offers.
If you're an employer, the above examples give you an idea of the jobs for which you can go through the steps of sponsoring an H-1B worker. But don't let this be the beginning and end of the topic. You might have a job that does not fit neatly into one of the above categories, or it might be a job that is relatively uncommon.
If you have a history of requiring a specific bachelor's degree, your organization’s job can qualify to sponsor an H-1B worker. For example, you might have hired five people, who all had the same degree, for a particular job. If the foreign national you want to hire has the same degree as the other five, that job can qualify.
With this in mind, use the above examples as a guide and then explore your specific job offering further to see whether it will qualify. Also keep in mind that there are other ways for a job to qualify for an H-1B visa. The focus here is to provide some specific examples of jobs that USCIS has approved in the past.
If you're a student at a college or university and would like to position yourself to qualify for an H-1B visa in the future, you can use the above examples to get an idea of the fields of study that can match up to a job that qualifies for an H-1B visa.
If you plan to work as an accountant, for example, you will need to major in accounting or finance. While art history might be of interest to you and have its own merits, it won't get you an H-1B visa to work as an accountant. Focus on a major and coursework that are relevant to the job you're seeking.
Also, as noted above for employers, don't let the above list be the beginning and end of your search. Rather, take a close look at job postings and compare how the courses you've completed are relevant to performing that job. If there is a close connection, there's a good chance you can qualify for an H-1B visa through sponsorship for that job.
Finally, the USCIS Employer Data Hub allows you to see reports of employers that have submitted H-1B petitions going back to fiscal year 2009. That at least could provide you with examples of organizations willing to sponsor H-1B workers.
]]>For the purposes of the H-4 visa, a "spouse" is a husband or wife in a legally valid and recognized marriage. A "child" is an H-1B worker's son or daughter who is both unmarried and under the age of 21.
If you are from a culture where polygamy is common, you might also want to read, How Marriage to Multiple Spouses Affects Immigrants' Eligibility for a U.S. Visa, Green Card, or Citizenship.
If your family is outside of the U.S., they can apply for H-4 visas at the U.S. consulate in their home country. They do so after U.S. Citizenship and Immigration Services (USCIS) approves the H-1B petition the employer filed on your behalf (Form I-129). Your family can obtain their H-4 visas at the same time you obtain your H-1B visa, or they can do so after you obtain your H-1B visa—they just cannot obtain their visas before you obtain yours.
Each of your family members must provide the following documents to the U.S. consulate:
Please note the consulate may ask your family for additional documents, but in general those listed above are the basic materials that will be required.
Processing times for issuing the H-4 visa vary by consulate, so be sure to ask the consular officer for a timeframe within which your family can expect to receive their visas.
The process for obtaining H-4 status is different if the H-1B worker and family are already in the United States (in which case, technically speaking, they cannot seek a "visa," which is first and foremost a U.S. entry document). In this situation, the family must file an I-539 application to change their status with USCIS. All family members can be included in one I-539 application.
The primary applicant, typically the spouse, prepares and submits the basic Form I-539. Each child submits a Form I-539A. For H-4 applications, the I-539 filing fee of $370 (2024 figure) includes the entire family.
We are presuming the family members are in the U.S. legally and maintaining lawful status—undocumented persons including those who have, for example, overstayed a visa, cannot file for a change of status.
For example, let's say you are in the U.S. with an F-1 student visa and your spouse and child are in the U.S. with F-2 visas. You find an employer who sponsors you for an H-1B visa by filing an H-1B petition (Form I-129) with USCIS. Your family can file their I-539 application either at the same time as your I-129 petition, or anytime afterward. Once USCIS approves the I-129, it will approve the I-539 and change your family's status to H-4. Be aware, however, that sometimes USCIS takes many more months to process the I-539 application as compared to the I-129 petition. Your family can remain in the U.S. while awaiting the I-539 approval.
It is VERY important to remember to file an I-539 application to make sure your family maintains legal status in the United Status. Remember, your family's status is dependent upon yours—they are allowed to be in the U.S. because they are your dependents. In the example above, as soon as your F-1 status ends, your family's F-2 status also terminates. Therefore, if you forgot to file an I-539 to change their status from F-2 to H-4, your family could be in the U.S. without lawful status, which can lead to serious consequences and jeopardize their future opportunities to visit or live in the United States.
One more thing to remember: Because a change of status does not provide an actual entry visa, your family members will, if they travel outside the U.S. after changing to H-4 status, need to make a stop at a U.S. consulate in order to get an H-4 visa for return to the United States. This shouldn't present a big hurdle, but it is an important step to remember, nonetheless.
As a condition of H-4 status, H-4 visa holders are permitted to study at any U.S. university. They are not required to obtain F-1 student visas before beginning a study program. However, H-4 visa holders are NOT permitted to work in the United States—with one potential exception. discussed next.
Spouses of H-1B workers may obtain work permits in cases where the primary H-1B worker is applying for lawful permanent resident status (a green card) and the employer has received an approved Form I-140, Immigrant Petition for Alien Workers on their behalf or has received an extension of H-1B status beyond the six-year limit under the so-called AC21 statute. This type of work permit is unrestricted—the holder may work for any employer, or start a business. (See application instructions just below.)
If H-4 visa holders begin working without permission, they are violating the conditions of status and may lose status and be subject to other serious penalties.
The H-4 spouse must prepare Form I-765, Application for Employment Authorization and file it with all required evidence to the appropriate USCIS ("United States Citizenship and Immigration Services") office.
For more guidance, see Filling Out Form I-765, Application for Employment Authorization. The Form I-765 page of the USCIS website includes the form itself, instructions, and further guidance, such as filing addresses. Answer the questions on the form as completely as possible, and if you are not completing it electronically, use black ink to fill it out.
In Part 2, Question 27, your EAD eligibility category is "(c)26." (For more about EAD categories, check out What Is Form I-765, Application for Employment Authorization.)
After completing the form, gather these documents:
Send these to USCIS with the completed I-765 and filing fees ($410 for the form and $85 for biometrics; 2024 figure; but doublecheck the USCIS website for the latest, since it has proposed implementing fee hikes).
The filing fees can be paid by money order, personal check, or cashier's check made out to the "U.S. Department of Homeland Security." You may also pay by credit card by using Form G-1450. Make a copy of all items for yourself and mail them to the appropriate USCIS address.
Assuming the H-1B visa holder remains in valid status in the U.S., the spouse may stay on as well, and renew the permission to work.
EAD renewal applications may ordinarily be submitted to USCIS up to six months before the EAD's expiration date. You can find the expiration date on your physical EAD document.
Unfortunately USCIS is quite slow to act on these renewals, and you might find that your work permit expires before your new one has been approved. To deal with this, USCIS will allow certain H-4 spouses to receive automatic extensions of their work permit for up to 180 days.
Yes, H-4 visa holders are entitled to travel in and out of the United States. There is no requirement that the H-1B worker accompany them. They should, however, bring a copy of the H-1B worker's most recent approval notice, if it's been extended since their last entry. That way, the Customs and Border Protection (CBP) officer at the port of entry will know to also extend their I-94 (containing their date of required departure) to match the latest H1B extension.
H-4 visa holders are permitted to change immigration status while in the United States. Many H-4 visa holders who wish to work in the U.S. find an employer to sponsor them for an H-1B visa. The employer simply files the I-129 petition and asks USCIS to change the person's status from H-4 to H-1B.
Importantly, any time spent in H-4 status does NOT count towards the six-year maximum period of time that workers are allowed to be in H-1B status. For instance, let's say a foreign national is in the U.S. in H-4 status for three years and then changes status to H-1B. The foreign national may remain in H-1B status for the full six-year period, since the H-4 time did not count towards the maximum.
For more information on H-1B visas, see H-1B Visas for Temporary Specialty Workers.
]]>I have been working in the U.S. on an H-1B for one year now. I want to create an Internet start-up company with my cousin back home in India. All my work would be online; I wouldn't need to move back to India. None of our clients would be in the United States. I could do this part-time (mainly on weekends) and there would be no conflict with my current employer. I know I'm not supposed to work in the U.S. without specific authorization, but this wouldn't be the same, would it? Would I get in trouble with immigration?
Although your current H-1B petition and status would not authorize you to do the type of work you envision for an overseas company while being physically present in the United States, you could explore a concurrent H-1B petition for part-time employment.
Remember: As an H-1B visa-holder, you are allowed to work in the U.S. only for employers who have filed an I-129, Petition for a Nonimmigrant Worker with U.S. Citizenship and Immigration Services (USCIS) on your behalf.
Of course, if you are working for yourself in India, you might argue that you are not even working for a U.S. employer. The problem is that the definition of "work" (or employment) "in the U.S." for purposes of U.S. immigration law is somewhat ambiguous: The term "employment" means "any service or labor performed by an employee for an employer within the United States," and the term "employer" means a person or entity "who engages the services or labor of an employee to be performed in the United States." (See the U.S. Code of Federal Regulations, at 8 C.F.R. § 274a.1.)
You might expect that the main concern of the U.S. government, when it comes to regulating the employment of foreigners, would be with limiting their access to U.S. employers—including any foreign company with a subsidiary, branch office, or agent in the United States. (Much of immigration law is, after all, directed at protecting opportunities for U.S. workers.)
However, U.S. immigration agencies have interpreted their powers broadly and, as a result, most immigration lawyers would probably tell you that "employment in the U.S." includes any work performed by any person present in the U.S., regardless of the person's citizenship and regardless of the location of the company (or the company's clients).
If "employment in the U.S." includes any work performed by any person present in the U.S., this means that you should not work for your Indian-based company without first either filing a new H-1B petition for concurrent part-time employment with the company, or abandoning your current H-1B employment and changing your nonimmigrant status to L-1 (Intracompany Transferee), or obtaining a green card. (The first option would be the most convenient in most regards; unfortunately, it might not be the easiest.)
If none of these three options seems achievable within a reasonable time, you would need either to choose between your current H-1B employment and your Indian company, or to prepare a very sophisticated legal defense strategy.
Under any scenario, you might want to secure the assistance of an experienced immigration attorney.
A final note: Don't forget that at tax time, you'll be required to report your entire income to the IRS, from sources both inside and outside the United States.
]]>As background, the H-1B visa is a work visa. At a basic level, this means that while you, as an H-1B worker, are in the U.S., you need to be not only working for your sponsoring employer, but also getting paid by that employer to maintain lawful immigration status.
But what happens if you need to take an unpaid leave of absence of a sort that an employer normally would grant to any employee (in fact, might be legally required to grant), such as maternity leave or for an extended illness? What are the rules for you?
(For further guidance, see Nolo's many articles concerning life on the H-1B visa.)
The typical means to document that you are in lawful H-1B status is through paychecks, which show that you are working and getting paid. As you are likely aware, maintaining lawful H-1B status is important not just theoretically, but it is vital if you want to be able to change employers or extend your stay while remaining in the United States. If your H-1B status lapses, you might need to leave the U.S., obtain a new H-1B visa at the U.S. consulate abroad, and return before you again will have lawful H-1B status.
The usual one- or two-week vacation does not require any special documentation to explain or evidence a gap in employment. Many vacations are paid in any case, so the issue might never come up.
If you have exhausted your paid vacation and are fortunate enough to have your employer grant additional, unpaid vacation time, it would be a good idea to obtain something in writing that confirms your approved time off and that it will be unpaid. Such a letter will explain any lesser amount on a paycheck or year-end W-2 wage report.
Also, you will want to maintain any other possible elements of the employer-employee relationship, such as continuing to utilize an employer-provided insurance plan, if possible. It is also helpful if your employer has a policy of allowing all employees to take such unpaid leave.
For prolonged, unpaid absences, be ready to explain and document your situation when it comes time for your current employer or another employer to submit a petition requesting an extension of your H-1B status. It’s therefore wise to prepare a folder of relevant documents explaining why you were not working. They might include the employer letter mentioned above, medical records for yourself or a relative, birth certificates for newborn children, relevant sections of your employer's employee benefit plan, or other, similar documents.
U.S. Citizenship and Immigration Services (USCIS) has confirmed that H-1B workers on approved leaves of absence continue to maintain lawful status, and a letter from the employer stating that the H-1B worker remains an employee but is on leave would be acceptable documentation to prove such continued status. It still is a good idea to have medical records or other documents available to provide additional support for your employer's statement.
You'll do yourself a favor by gathering the relevant documents around the time of the event (such as an illness or birth), in case USCIS asks for additional materials when it reviews an H-1B petition that your employer files on your behalf. You might find it more difficult to backtrack and get documents at a later time. This extra step will pay off in the long run and help your employer respond to a so-called "Request for Evidence" or "RFE," which USCIS might send as a follow-up to the H-1B petition.
As can be seen from the above examples, the leave of absence issue most often arises in the context of a health issue or a longer vacation. Another situation could involve what slowly is becoming recognized or described as the work sabbatical. Some employers allow employees to take a prolonged leave (several months or more) to pursue a personal or career goal. It might be anything from hiking the Appalachian Trail to obtaining an advanced degree.
Here again, as an H-1B worker, you need to do some extra planning if you're considering some type of sabbatical. If the time away from work will be outside the United States, you don't need to worry about maintaining status, because you won't be here. Rather, you'll simply want to document your departure with copies of travel itineraries, plane tickets, and passport entry/exit stamps. Any time you spend outside the U.S. can be "recaptured" and added to the otherwise applicable six-year maximum stay in H-1B status.
If you will be remaining in the United States, it could be a bit more challenging. There is no clear guidance on whether you could maintain lawful H-1B status during a prolonged absence from work, even if your employer approved it and it is a benefit offered to all employees. As mentioned above, the H-1B visa is a work visa and is not meant for sabbaticals. The challenge could arise when your employer files the next H-1B petition. USCIS could determine that you did not maintain H-1B status and therefore deny the request to extend your status. It then most likely would be an uphill battle to get back into lawful H-1B status.
In theory, it might be possible to apply to USCIS to change to B-2 visitor status, for example if you wanted to hike the Appalachian Trail as a tourist. In practice, however, it's unclear at best how USCIS would view such an application. Depending upon the length of the leave and your financial reserves, USCIS could deny the change of status application out of concern that you won't be able to support yourself. Also, the change of status application can take several months to process. If you're out on the trail with no mail or Internet access, USCIS might send a request for evidence (RFE) or denial, and you'd have no way of knowing about it.
Therefore, if a sabbatical is in your plans, it might be best to look abroad. You avoid the uncertainty of maintaining immigration status. You also are not using up your six years of H-1B eligibility.
Although life can and does happen to everyone, there are rules in place that provide guidance for H-1B workers. If you perform some due diligence, you can navigate the rules and prepare any required documentation. And regardless of the joy or frustration the life event causes, at least your H-1B status will neither mitigate nor aggravate the situation.
]]>It is only natural that you would want to know whether you can plan for a future in the United States if the company hires you. But, petitioning for a foreign national employee's green card can be expensive and time-consuming for a company. If you do not have a strong negotiating stance in your talks with the employer, bringing up this topic could sour negotiations.
The costs and benefits of initiating such a conversation depend on the overall conditions surrounding your negotiations with the employer. This article will describe what to take into account in determining how or whether to bring up the topic at all.
Your potential employer might be more receptive to negotiating the topic of future green card sponsorship if you are particularly advanced or accomplished in your field.
Many people searching for H-1B employment sponsors are students or recent graduates from U.S. undergraduate or graduate education programs. If you have little previous employment experience, and do not have a previous relationship with the company you are applying to, it could be risky to ask about long-term green card sponsorship during the interview process. The company does not know your work product, and might be hesitant to make a long-term financial commitment under uncertain conditions. The negotiations could get sticky, and the company might consider other candidates if the interviewer feels you are asking for benefits too far outside of your negotiating power.
If you're a student, you might have already received temporary employment authorization and secured an employer pursuant to the Optional Practical Training (OPT) program. During your OPT employment, you could discuss with your employer the possibility of applying for H-1B status to continue employment after your OPT authorization expires. Because the company knows your work product and the value that you bring, it might be more receptive to questions regarding possible future green card sponsorship along with your transfer to H-1B status.
Or, perhaps you're searching for an H-1B employment sponsor as an established professional who wants to transfer your H-1B status to a different employer. In this case, you might not have a previous relationship with the company to which you are applying, but you likely have years of experience in the field. If you can demonstrate a solid track record of accomplishments, then you could be in a strong enough position to ask about future green card sponsorship.
If you have already been working with a company for some time, did not negotiate green card sponsorship when you were hired, and want to bring up sponsorship mid-employment, there is little risk in requesting sponsorship at this stage. You are, however, also in a relatively weak negotiating position. The company can simply decline your request. However, if you have made significant contributions to your company, or are willing to seek to transfer your H-1B to a new sponsor if your company declines your request, you might be able to negotiate sponsorship with your current employer or a new employer. You should strive to demonstrate that the value you have brought and will bring to the company in the future is greater than the cost and hassle of green card sponsorship.
The process to petition for a green card is complicated and costly, and takes months to complete. Companies that have more financial and human resources to dedicate to employee retention might be more amenable to sponsoring H-1B employees for a green card than others.
Petitioning for a green card can cost a company anywhere between $6,000 and $15,000, depending on the type of immigrant petition the employer files and whether it will cover the costs for members of your family, as well. And even with the assistance of an immigration attorney, filing an immigrant petition can require significant time and attention from the employer in order to perform the required recruitment to test the labor market, for instance by posting newspaper advertisements and interviewing candidates.
Less established companies with small profit margins might not have the financial resources to dedicate to green card sponsorship, even if you bring great value as an employee. Larger companies with considerable financial reserves, by contrast, might consider the cost of green card sponsorship to be a minor expense in their budget.
Companies' human capital can be a determining factor as well. If the company is thinly staffed, the extra workload that an immigrant petition will bring might be more difficult to accommodate.
If you're interviewing for an H-1B position, and have decided that you have a strong enough negotiating stance to ask about future green card sponsorship, it would be wise to wait until the final stages of the interviewing process to mention it.
If you bring up green card sponsorship in your first interview, it might seem like you are more interested in your own immigration benefits than you are in working for the company. Once the company has made you a written offer of employment, you should review the offer, and if future green card sponsorship is not mentioned, request that the possibility be added to the employment offer or contract.
If you have already had H-1B status for some time and are seeking to transfer your H-1B to a new employer, also consider whether you are nearing the end of your H-1B validity. H-1B status is valid for three years, and is ordinarily renewable only once, for a total of six years. In order to stay continuously in the United States at the end of your H-1B status, you need to have either secured permanent resident status (a green card) or meet the requirements for a "seventh year extension."
A seventh year extension is available to people who have started the immigrant petition process, but are subject to country-specific backlogs and will not be immediately eligible to apply for a green card. Those who fall into this category must initiate the immigrant petition process by one year (365 days) before the H-1B status expires. Significant preparation is often required to start the immigrant petition process.
Based on these factors, you should begin to discuss applying for a green card with your employer about two years before your H-1B status expires.
]]>Practical limits exist, of course—you probably don't want to take on five half-time jobs in the United States. But as far as the H-1B rules are concerned, you can work full- or part-time for one, two, or several employers, so long as each job qualifies as an H-1B occupation and each employer is willing to take on the H-1B obligations.
This flexibility creates interesting possibilities as well as some procedural puzzles. (For a general account of the H-1B requirements, see H-1B Visa to the U.S.: Who Qualifies?.)
The U.S. Department of Labor requires employers to pay H-1B workers at least the going rate ("prevailing wage") in their area for the type of work they do, and more if the employer pays more to other workers doing the same job. This requirement applies to part-time as well as to full-time jobs. Thus, though you can work any number of hours, and a variable number of hours per week or per month, each employer must pay you at an hourly rate that satisfies this wage rule. The wage rate and hours for part-time jobs can be tricky to represent in the H-1B paperwork; you and your employer might want to consult an immigration attorney for help.
Though you can work any number of hours in H-1B status without offending the H-1B rules, a change from full- to part-time work or any other significant change in the number of hours you're working for a given employer requires filing an amended petition with USCIS. Therefore, in consideration of the time and expense for your employer to file amended petitions, you likely will not want to switch around from part- to full-time or vice versa too often.
The H-1B rules impose a yearly limit or "cap" on new H-1B petition approvals. Because of this cap, many H-1B eligible workers end up having to wait for an employer to be able to file a petition for them and then, after the petition is approved, having to wait for the new fiscal year to begin (October 1) before they start work.
If you find a second H-1B job when already employed in H-1B status, however, your new H-1B employer will be able to petition for you right away, even if the yearly supply of H-1B slots has already been used up. This is because you have already been counted against the cap.
Some employers—primarily government research institutions, nonprofit organizations, and universities—enjoy an exemption from the yearly cap. They can petition any time for a new H-1B worker. If you are working for one of these types of institutions when you find a second H-1B job, however, your new employer can petition immediately, without regard to the yearly cap, even though the new employer is not itself exempt from the cap. However, this works only for so long as you continue your employment with both employers.
Your overall stay in H-1B status is ordinarily limited to six years (though important exceptions apply if your employer has started the green card process for you— see How Long an H-1B Worker Can Stay in the United States). It would be nice if part-time work counted proportionately against this six-year limit, so that, for example, you could stay 12 years if you worked only half-time. But that isn't the way it works: What counts is your actual period of stay in the U.S. in H-1B status, not how much H-1B authorized work you've done.
However, if you have actually been staying outside the U.S. part of the time, coming to the U.S. periodically to work in H-1B status, then you can add the time you were outside the U.S. back onto the end of your authorized stay to stretch it beyond six years. What is more, if your H-1B job is seasonal or intermittent, or if you spend less than six months out of a year in the U.S., then you can maintain your H-1B status in the U.S. indefinitely, without regard to the six-year limit.
Part-time workers often work on contract—but this won't work for H-1B workers. The H-1B rules specifically require an employer-employee relationship. You should therefore insist that you be on the employer's payroll and receive a W-2 to prove it, as you might well need to show this later on in extending your H status, changing or adding H-1B employers, or applying for a green card.
An argument could be made that the method of payment doesn't determine whether an employer-employee relationship exists, but frankly this isn't an argument you'd want to have to make to USCIS. The wise course is to insist on W-2s and reject 1099s.
Part-time work often goes with study, and nothing in the rules prohibits an H-1B worker from enrolling in school while in the United States. In fact, you can work full-time in H-1B status and also attend school, if you are up to it. The practical question is whether you can juggle work and school such that you satisfy the terms of your H-1B employment, because that is what keeps you in lawful immigration status (and prevents you from being deported).
]]>In particular, you might discover that USCIS considers you to have abandoned your pending application, in which case you could be blocked from reentering the country. Here's what to know before embarking on a trip outside of the U.S., so as to ensure that your travel doesn't cause adverse problems with your immigration status.
Let's start with the basics, which apply to anyone currently holding H-1B status and/or a visa. If you are in the U.S. in H-1B status and have a valid visa in your passport, you are permitted to travel outside of the U.S. and return to the United States as long as you reenter prior to your visa's expiration date.
All H-1B visa holders should carry the following:
By presenting these upon reentry, you should have minimal trouble returning to the U.S. in H-1B status.
Note that Canadians in H-1B status are visa exempt, so they may travel and reenter the U.S. in H-1B status as long as they maintain their status validity. They don't need a visa in their passport. However, H-1B Canadians will want to carry their most recent I-797 approval notice, valid passport, and two recent pay stubs and/or employment verification letter from their employer.
International travel while your H-1B extension is pending at USCIS is permitted if you have an unexpired visa, but be aware of a few points before taking your trip.
First, you must be present in the U.S. at the time your employer files your extension petition. If you have a pending extension petition, and you travel outside the U.S. and return prior to your status and visa expiration dates, be sure to carry the documents noted above. However, if you use your previous approval notice, upon reentry, your I-94 will be valid only until your current expiration date (until and unless your extension is approved).
If USCIS approves your extension while you are abroad, you will need to reenter the U.S. with your new I-797 approval notice. This might mean that you'll need to have your approval notice sent to you while you are abroad so that you can present it when you reenter the United States. Also, if your visa expires while you are abroad, you will need to visit a U.S. consulate or embassy to obtain a new one prior to returning to the United States. In either case, be proactive and show the U.S. immigration officer your visa and your I-797 Approval Notice. Do not expect the officer to ask for the I-797 Approval Notice.
If you have a pending H-1B extension, but your I-94 is expired, you are allowed to remain and work in the U.S. while your extension is pending, up to 240 days past your expiration date. However, if you travel outside of the U.S. after your I-94, and thus your H-1B status, is expired, you will not be able to reenter the U.S. in H-1B status until your extension is approved and you obtain your I-797 approval notice. This could cause you to spend more time away from your U.S. job than you originally planned, which could cause issues with your place of employment. This is why traveling internationally with a pending H-1B extension application and expired I-94 is typically not a good idea.
International travel while you wait for USCIS to approve an H-1B transfer petition from one employer to another is allowed, but you’ll want to plan carefully.
If you are still employed with your "old" employer and have valid H-1B status and a valid visa, you may utilize these for your international trip. However, if you are no longer working for your previous employer, you may not enter the U.S. until a new employer files an H-1B petition for you and you have at least a copy of the I-797 Receipt Notice to show that the new employer’s petition is pending—in this case, when you return to the United States, you can show the immigration officer the H-1B visa in your passport from your prior employer, the I-797 Receipt Notice for the new employer’s H-1B petition, and the offer letter for your new job.
The most conservative route is to secure approval of the new employer’s H-1B petition and then return to the United States either with a new visa or with a valid H-1B visa from a prior employer and the new employer’s I-797 Approval Notice.
So far, this article has discussed instances where the H-1B extension or transfer contained an application for extension of stay (in the United States). However, you might be in a position where your H-1B petition contains an application for change of status instead. This occurs when you change from one nonimmigrant status to another, such as from F-1 student to H-1B or from H-4 to H-1B.
This distinction is important because international travel while a change of status petition is pending operates to abandon the request for a change of status. If you travel outside of the U.S. while your change of status case is in progress, you no longer have a “status” that USCIS could change.
This does not mean, however, that the underlying H-1B petition will be denied. If your H-1B petition is approved, but the change of status is denied, you must obtain an H-1B visa from a U.S. consulate or embassy abroad before reentry. Similar to getting an approved extension while abroad, this could mean that your approval notice will need to be sent to you while you are overseas, as you might need it to get an H-1B visa.
]]>Under U.S. law, a foreign worker with an H-1B visa can stay in the U.S. for a maximum of six years (plus extensions in certain circumstances, discussed below). The H-1B visa and status is initially valid for three years and can then be extended for another three years. At the expiration of the maximum period of stay, the foreign worker must either leave the U.S. or obtain a different immigration status (such as an F-1 student or O-1 "extraordinary ability" worker). After spending a full year abroad, a new six-year clock begins.
When calculating how much time an H-1B worker has remaining, it is important to understand exactly what time periods count toward the six-year maximum.
First, only the time the worker spends in the U.S. in H-1B status counts toward the six years. Any time spent outside of the country does not count, even if the person leaves and reenters the U.S. with an H-1B visa.
For example, let's say a Russian citizen has an H-1B visa that is valid from October 1, 2018, through September 30, 2021. From January 1, 2019, through April 1, 2019, the worker goes to Russia to visit family. Those three months away from the U.S. do not count towards the six-year maximum.
This concept is critically important because immigration law allows H-1B workers to "recapture" any lost time so as to take advantage of the full six-year maximum.
Let's say that the Russian H-1B worker extended the H-1B status from October 1, 2021 through September 30, 2024. Because the worker in the above example can "recapture" the lost three months of H-1B time from 2016, it’s possible to extend the H-1B visa a third time—from October 1, 2024 through December 29, 2024. This third extension ensures that the worker uses up the full six years of H-1B status.
In addition to the time spent in H-1B status, however, any time a worker spends in the U.S. in L-1 status also counts toward the six-year maximum. Some workers go back and forth between L-1 status and H-1B status, so it is important to calculate how long the worker was in the U.S. in each status, since all time spent in L-1 status is applied to the H-1B six-year maximum.
(The same recapturing provisions apply to L-1 visa holders, too. If you have an L-1 visa and leave the country, you can recapture that time you spent outside of the U.S. and apply it to your remaining H-1B time).
Another important point is that any time you spend in the U.S.as a "dependent" spouse or child of a person in H or L status does NOT count toward the six-year maximum if you get your own H-1B status.
For example, let's say a worker is in the U.S. with an H-1B visa and his wife is in the U.S. with an H-4 visa (available to spouses of H-1B workers). The couple lives in the U.S. for four years. If, after four years, the wife decides to change status to H-1B, she is entitled to the full six years of H-1B status. Her time in H-4 status does not impact her H-1B maximum.
Two groups of H-1B visa holders qualify to extend their visa past the normal six-year maximum. These are outlined in a law called the American Competitiveness in the Twenty-First Century Act, commonly referred to as AC21.
First, an H-1B worker can extend H-1B status if the worker is the beneficiary of an approved immigrant worker petition (I-140) and cannot yet file a green card application because the worker's "priority date" is not current.
For example, let's say your six years of H-1B status will end on March 31, 2023, and you are a Chinese national with an approved I-140 in the EB-3 category. Your priority date is March 15, 2021. Per the July 2022 Department of State Visa Bulletin, the cutoff date for your category is March 22, 2018 (meaning only persons with priority dates before that date can apply for green cards at that time). Therefore, your priority date is NOT current, and you cannot yet file your green card application. In this situation, you are eligible to extend your H-1B status until your priority date becomes current.
Second, an H-1B worker can extend H-1B status if a U.S. employer filed a Labor Certification application (a PERM or ETA 9089) or an I-140 petition on the worker's behalf prior to the beginning of the sixth year in H-1B status, as long as that application/petition has not been denied (it may have been approved or still be pending).
For example, let's say your sixth year of H-1B status will end on September 1, 2022. As long as a U.S. employer filed a PERM or I-140 on your behalf before September 1, 2021, and the application is still pending on September 1, 2022, you are eligible to extend your H-1B status for one year.
Importantly, there is no practical limit to how many times an H-1B worker can use these AC21 provisions to extend a visa. Due to the major backlog in priority dates for some categories, you could potentially be in H-1B status for ten, 15, or 20 years while waiting for your priority date to become current. The only actual limit on these post-sixth-year H-1B extensions is that once your priority date is current, you need to pursue the final step in the green card process within one year of being able to do so. At that point, however, you’ll be well on your way to getting a green card, which means you no longer will need H-1B status.
However, please note that AC21 does not allow a worker to extend an H-1B if the worker is a beneficiary of a family-based immigrant petition. AC21 allows H-1B workers to extend their visas only if they are the beneficiaries of employment-based petitions.
Unlike a spouse, who has unlimited H-4 eligibility, to continue qualify for an H-4 visa, the children of an H-1B visa holder must remain unmarried and under the age of 21. Unfortunately, they have no control over their age. That means that their status might run out sooner than their parents', unless the parent successfully obtains green cards for the family first, or the child finds another status to switch to, such as F-1 student.
As a reminder, each time the H-1B worker’s employer renews the H-1B petition and status, be sure to check on the family’s H-4 status to make sure their status remains valid too. H-4 status requires a separate application, which the employer can submit with the H-1B petition.
]]>As a note of clarification, you would be sponsoring to change or extend the worker's immigration "status," which typically is reflected on the I-94 Arrival/Departure Record or by a handwritten note in the passport next to an entry date stamp. In contrast, a "visa" is merely an entry document that the U.S. consulate abroad affixes to the passport so as to allow the foreign national to request entry to the United States. Once in the U.S., the visa is less important. Therefore, because this article relates to hiring an H-1B worker who already is in the U.S., we will be referring to the worker's immigration "status" rather than to a "visa."
If the prospective employee is in the U.S. in lawful immigration status—most likely because they properly entered the U.S. with a visa and are maintaining the status granted—they will probably be able to change or extend status to start working for you as described in this article. For H-1B workers changing from one H-1B employer to another, see H-1B Portability—How Workers Can Change Employers.
If the person is in the U.S. without lawful status, however, such as someone who did not see an immigration officer upon entry, or who entered with a visa but since has overstayed the authorized period of remaining in the U.S., it's a different story.
When an employer files an H-1B visa petition for someone who is in the United States, it is asking USCIS to change and/or extend that person's immigration status. This means that there must be a lawful status to change and/or extend. It's legally impossible to change or extend the status of someone who has no status. In these situations, consulting an immigration attorney can help determine whether other possibilities exist.
There are a few steps to the H-1B process for hiring a foreign national who is already in the United States.
As the employer, you first must establish the prevailing wage for the position, which is the statistical average wage paid to workers in the job in the same area. See H-1B Employers: What Wage Must You Pay?. Next, you need to file a "Labor Condition Application" or LCA with the U.S. Department of Labor to verify that your proposed employment of the H-1B worker meets certain wage and working condition requirements.
For most H-1B jobs, there is an annual quota limit on visas, which might impact when you can move forward with the process. If the H-1B candidate you're planning to hire already has H-1B status and was counted against a prior year's quota, you can go ahead and file your I-129 petition at any time. If, however, the candidate is subject to the quota, it gets more complicated.
In recent years, the demand for H-1Bs has greatly exceeded the supply, so U.S. Citizenship and Immigration Services (USCIS) has conducted a registration to determine which employers may actually file I-129 visa petitions. If selected, you would then need to file the I-129 within a designated time window, usually starting the first week of April (that is, six months before the earliest possible start date of October 1).
For a more detailed discussion of these preliminaries (which apply whether the worker is inside or outside the U.S.), see Steps Employers Must Take to Hire an H-1B Worker: Overview.
Finally, you will need to prepare and file a visa petition, as described next.
To sponsor an H-1B worker, the employer must file an I-129 petition with USCIS, asking the agency to approve the foreign worker for H-1B status. Depending upon the person's current status, the employer asks USCIS either to extend the person's status or to change and extend the person's status. For example, for a worker currently in F-1 student status, your request could be to change the person's status from F-1 to H-1B and extend the period of their authorized stay in the United States.
Below is the list of materials that the employer typically must include with the I-129 petition; all fees were up to date as of February 2024 (though changes to fees will take effect on April 1, 2024):
The employer must mail the petition to USCIS. The processing time varies, but is usually at least two to four months.
For a substantially enhanced fee, USCIS will guarantee an initial processing time of 15 calendar days. (That fee went up to $2,805 on February 26, 2024.) If USCIS asks for additional documents, a new 15-day clock begins from the time USCIS receives your response. This expedited option is called "premium processing" and requires submitting Form I-907. Be sure to check the filing address for the petition, because USCIS changes them from time to time and often has a separate address for premium processing cases. You can request premium processing initially with your petition or upgrade to premium processing later if the normal processing times are taking too long.
In most cases, the prospective employee will be authorized to start working in H-1B status on the effective date of the approved H-1B petition. As noted above, due to the quota, the effective date is often the next October 1. See H-1B Portability--How Workers Can Change Employers for information on the start date for someone who currently has H-1B status for employment with another organization.
A worker who is currently in F-1 student status might already be authorized to work based upon a type of student work authorization called Optional Practical Training (OPT). For more information, see What If My F-1 Student Status Expires Before USCIS Approves Me for H-1B Temporary Worker Status?.
Employment start dates are important to maintaining lawful immigration status. By consulting qualified immigration counsel, employers can help their prospective employees maintain lawful status while planning an appropriate start date.
As part of the hiring process when gathering the employee’s immigration documents, ask whether there are any dependent family members who are in the United States in H-4 status or who need to change from another status to H-4 to remain in the United States with the H-1B worker. Legally married spouses and children under age 21 are eligible for H-4 status. If there are dependents abroad, they can apply for H-4 visas based upon the H-1B Approval Notice (USCIS Form I-797) once the new employee is on board.
Also, if the H-1B worker has achieved certain milestones toward the green card process, the spouse also could be eligible to apply for an Employment Authorization Document.
The H-4 and Employment Authorization Documents are separate applications signed and submitted by the family members, but the employer can include those applications with the H-1B petition. For convenience and efficiency, most employers ask the attorney who is preparing the H-1B petition to handle the family’s applications.
See H-4 Visas for Family of H-1B Visa Holder for more information.
]]>I've been working in the U.S. as a software engineer with an H-1B visa for more than a year now. My employer just informed me that my last day of work will be this Friday. Apparently, the company is going through a restructuring, and my job is being eliminated. Does my H-1B visa allow for any grace period, or will I be out of status or "illegal" after my job ends? Can I ask for another visa to look for a job?
We're sorry to hear you're losing your job. That became an especially common scenario after the start of the coronavirus (COVID-19) pandemic, which caused many businesses to struggle. For more on that specific concern, just in case another pandemic comes along, see How H-1B Workers Can Maintain Legal Status During Coronavirus Pandemic.
More generally speaking, you might have a few options to maintain lawful immigration status, as reviewed below. It's important that you do everything possible to maintain lawful status. If U.S. Citizenship and Immigration Services (USCIS) finds that you are "unlawfully present," you could face harsh legal consequences, particularly after six months go by.
To answer your first question, there is a 60-day maximum grace period for an H-1B worker once the employment ends. Therefore, if your job ends Friday, you will have a maximum of 60 days to arrange for another employer to submit an H-1B petition for you, change to another status, or depart the United States. The H-1B visa category requires you to be working and getting paid, as outlined in your employer's H-1B petition, in order to maintain lawful status. Once your employment ends, you're not maintaining status, but the regulation gives you up to 60 days to get your status in order.
The regulations provide for a 60-day maximum grace period for unemployment between H-1B employers. As long as you're actively looking for a job and can show that you've submitted applications, corresponded with prospective employers, or interviewed for new jobs, you're likely to get the full 60 days for your next H-1B employer to submit its petition for you.
On the other hand, if you do nothing for 59 days, and then suddenly have a petition submitted on day 60, USCIS might not approve the status extension part of the petition, and you might need to make a trip home to get a new H-1B visa in your passport before continuing to work for your new H-1B employer.
If it's been more than 60 days since the last H-1B job ended, and you're still in the U.S., the safer course of action is to have the new employer file a petition without a request to extend your status. In this case, once USCIS approves the petition, you would travel outside the U.S., obtain an H-1B visa at the U.S. consulate abroad, and then return to the U.S. to start working for the new employer. The benefit with this option is that it avoids the question of whether you were maintaining status.
If you happen to have a spouse who also is working in the U.S. with an H-1B visa, you can file an application to change your status from H-1B to H-4 dependent. As long as your spouse is maintaining lawful H-1B status, you can remain here in H-4 status. This would give you time to apply for work authorization as an H-4 and then get a new job. Submit your H-4 change of status application as early as possible during your 60-day grace period.
Again depending upon your situation and the time of year when you lose your job, you might be able to change to F-1 status to pursue another or a higher degree in a full-time academic program.
Many people ask about filing an application to change from H-1B status to B-2 visitor status to remain in the U.S. to search for a new job. This is problematic, because searching for a job is not an appropriate “tourist” or visitor-for-pleasure activity. Also, if you find a new job before USCIS approves your B-2 status, you almost certainly will need to take a trip back to your home country to get a visa to reenter the United States in your new job status. USCIS will not process an H-1B petition for an extension of status if there is a pending B-2 application. Only in limited circumstances is it even worth considering a B-2 tourist application and only after consulting with a licensed immigration attorney.
The last option you have is to receive the cost of your return transportation to your last country of residence abroad. If an H-1B employer terminates an H-1B worker, the employer must offer to pay for a flight to allow you to return to your home country, or to your last country of residence abroad. If you leave the employer on your own, this requirement does not apply.
]]>Indeed, some nurses have been able to get the H-1B visa—but many others have not. This article will look into the reasons for this apparent conflict, and discuss what types of nurses might successfully obtain an H-1B visa for work in the United States.
Only some types of nursing jobs qualify the person hired for an H-1B visa. These are typically nurse manager or advanced practice roles, which require a bachelor of science (B.S.) in nursing or perhaps a master of science (M.S.) degree.
The ordinary RN or LPN position normally requires only a two-year degree. This difference in the educational requirement is what separates the nursing jobs that qualify for H-1B visas from those that do not.
As explained more fully in the many Nolo articles on the H-1B visa, only "specialty occupations" qualify for H-1B visas. Specialty occupations are (generally speaking) those for which the employer normally requires at least a bachelor's degree in a specific field, or for which the industry standard is to require a specific bachelor's degree.
This standard makes it difficult, if not impossible, for an RN to get an H-1B visa, because a bachelor's degree is not necessary to work as an RN. If an employer could demonstrate that it hires only RNs with bachelor's degrees, it might be possible to obtain the H-1B visa, but it would be an uphill battle.
Unlike the typical RN position, the more senior roles of nurse manager or advanced practice registered nurse can qualify for H-1B visas, because the job requirements meet, and sometimes exceed, the minimum specialty occupation standard. The level of responsibility of these jobs demands more education, and it usually is fairly easy to document this through job postings and internal job descriptions that include the BSN or MS degree as a minimum job requirement. To be sure, the nurse also must have the corresponding degree, a certification from the Commission on Graduates of Foreign Nursing Schools, and a state license.
In a July 11, 2014 policy memorandum on the status of RNs' eligibility for the H-1B visa, USCIS confirmed the longstanding reality that most RN positions do not qualify for H-1B visas.
The memo, which served as an update to a November 2002 memo on the topic, also mentioned the continuing possibility for nurse manager and advanced practice roles to qualify and specifically mentioned several advanced jobs as examples: certified nurse-midwife, certified clinical nurse specialist, certified nurse practitioner, and certified registered nurse anesthetist.
But these are merely examples of jobs that might qualify. The key question remains whether the actual job requires at least a bachelor's degree in nursing or the particular advanced area.
In an interesting and unfortunate development, as of the November 2002 USCIS memo, North Dakota RN licensure laws required candidates to have completed a bachelor's degree in Nursing. USCIS therefore explained in the 2002 memo that RNs seeking to work in North Dakota would qualify for H-1B visas. The memo further noted that additional guidance would be forthcoming if other states adopt the same standard.
As of the July 2014 memo, North Dakota no longer requires a bachelor's degree, and there are no other states that require a bachelor's degree to obtain an RN license. As discussed above, this essentially makes it nearly impossible for an entry-level RN to get an H-1B visa.
It is highly advisable to retain an experienced immigration attorney to help you navigate this tricky area of immigration law and figure out whether you might qualify for an H-1B based on your nursing background. The attorney can also help prepare the paperwork, present legal arguments, and monitor the case until its hopefully successful conclusion.
]]>For most H-1B-qualifying jobs, there is a numerical limit, or quota, of 85,000 total H-1B visas approved each federal fiscal year. The quota creates a challenging timing issue surrounding when the prospective employer can submit its H-1B visa petition and when—or whether—the H-1B worker can begin employment.
But there’s a way to avoid this whole problem: Find a job of a type that would qualify you for an H-1B visa, but is not limited by the 85,000 cap. This article discusses finding a job at a "cap-exempt" employer to avoid the quota and corresponding timing issue
The following types of workplaces can hire H-1B workers without worrying about the cap.
Determining whether one of these exceptions applies to your prospective employer might require some investigation. It involves looking into the nature of the employer and might also require some checking into the job location.
It's not likely that a job posting will contain any information about the employer's cap-exempt status, because most employers are not thinking about H-1B visa sponsorship when seeking to fill an open position. It therefore will be helpful to seek the advice of an immigration attorney who can assist you in determining whether the job will be exempt from the H-1B cap.
To qualify as an institution of higher education, the organization must fit the definition in the United States Code (20 U.S.C. Section 1001(a)). This ordinarily means a college or university that requires secondary education or the equivalent for admission, offers at least a two-year program that leads to a four-year or higher degree, is a public or nonprofit private school, and has attained or is making satisfactory progress toward accreditation.
For established and recognized colleges and universities, such as the University of California, it's likely not necessary for you to investigate admission standards, degree programs, or accreditation status. For newly formed colleges or universities, particularly ones that offer online-only programs, however, it's important to make sure they meet the above criteria qualifying them as institutions of higher education.
The second category of employers that is not subject to the H-1B cap is nonprofit organizations related to or affiliated with an institution of higher education, as defined in the first exception above. The most common example is a teaching hospital connected to a university medical school. Such hospitals normally are nonprofit organizations and typically have entered into extensive cooperative education agreements for university faculty members to have hospital privileges and for medical students to receive medical training at the hospital.
Another example that has had mixed results is a primary or secondary school. U.S. Citizenship and Immigration Services (USCIS) has approved some H-1B petitions for primary or secondary teachers and denied others. Such cases usually hinge on the affiliation requirement. In some cases, USCIS agreed that there was a qualifying affiliation; normally through university and school district student teaching programs; and in other cases denied the H-1B petition because the "affiliation" was too weak or not fully documented.
Beyond the teaching hospital example, it will take some research to determine whether this exception applies. First, the organization must be a nonprofit: that is, an organization that uses its earnings or contributions to achieve a mission or goal rather than transferring them to its owners as profit or dividends. Technically speaking, an organization cannot be considered a nonprofit until the federal government (through the Internal Revenue Service) has granted it tax exempt status, i.e. designated it as a so-called 501(c)(3), (c)(4), or (c)(6) organization, according to the relevant provision in the U.S. tax code. Examples of nonprofits include organizations with religious, charitable, scientific, literary, or educational purposes.
Second, the nonprofit must have a relationship to or an affiliation with an institution of higher education. This means there is common ownership or control of both organizations, or that the nonprofit is attached to an institution of higher education as a member, branch, cooperative, or subsidiary. While some of the operative documents might be publicly available (perhaps on the organization's web site or on a state government website, most often the secretary of state, where legal entity records are maintained), it most likely will require further investigation to determine whether such a qualifying relationship or affiliation exists and to what extent it can be documented.
This third category of cap-exempt employers is research organizations that are engaged in basic and/or applied research to further the knowledge of a particular subject or find ways to apply new scientific knowledge to commercial pursuits. The research organization must be either a nonprofit or a part of the federal government.
As mentioned above, in addition to working for a cap-exempt employer, it's also possible to avoid the H-1B cap by working at a cap-exempt employer even while officially employed by a separate entity. This of course first requires demonstrating the cap-exempt status of the entity where the H-1B worker will be placed. Examples might include a pharmacist working for a private pharmacy or a health care provider working for a private practice group, both of which are located on a university hospital campus.
Hospitals are the simplest and most transparent examples of workplaces that might not be subject to the H-1B cap. Through further investigation, however, there are many other organizations that qualify. Peeling back the layers and identifying key documents to evidence the organization's status (such as its being an institution of higher education or nonprofit) and relationship (perhaps between a nonprofit organization and an institution of higher education) will permit filing an H-1B petition at any time.
Nonetheless, if the cap-exempt research reveals either that the organization does not fit within one of the exceptions or that there is no supporting documentation, the employer still has the option of pursuing a cap-subject petition for one of the 85,000 visas.
It might require seeking the advice of an experienced immigration attorney to determine whether a particular job will be cap-exempt, and to assist in applying for it. Many H-1B employers either have immigration attorneys on staff (if they're large companies) or hire them for this purpose.
]]>But what do those mean? As explained below, it is often surprisingly difficult to determine a company's actual wage. The usual result is that the employer needs to look to the prevailing wage to determine the required salary for an H-1B employee.
The actual wage for a job at your company is, according to DOL regulations, the wage rate you pay other employees who have "similar experience and qualifications" and who are performing the same job as the H-1B worker. (See 20 C.F.R. § 655.731.)
You first would need to determine whether you have other employees with the same qualifications performing the same job as the H-1B worker. If so, the wage paid to those workers is the "actual wage."
The "actual wage" definition can create practical difficulties, especially for small employers. While in theory it might be possible to have a number of employees with the same qualifications and performing the same job duties, in practice, most employers have job families that include a variety of individual job descriptions.
Within a given job family, for example, various team members might have different qualifications and perform different job duties. For example, there might be a job called "Software Engineer" at a particular company, which has several employees under that same title. When looking at what each Software Engineer does, however, it might turn out that some perform front-end application changes while others perform complicated back-end, systems-level architectural work that requires a higher degree (e.g. master's) or more experience.
As such, if no other employees are doing the same job as the H-1B worker, then the salary offered to the H-1B worker is the actual wage.
Even after calculating the actual wage, you will need to compare it to the prevailing wage. If the prevailing wage is higher than the actual wage, you'll need to pay the H-1B worker the prevailing wage.
The "prevailing wage" is either the applicable wage under a collective bargaining agreement (such as for a public school teacher) or, if there is no union, the average wage paid to workers in a particular occupation in a specific geographic location.
For the latter situation, you can determine the prevailing wage in one of three ways:
The DOL's criteria that a private wage survey must satisfy are the following:
While many surveys meet most of these requirements, the one factor that is often missing is geographic specificity. Many surveys report data on a regional basis and do not break it down further than a particular state. A survey that does not have wage data for the city or metropolitan area where the H-1B employee will work would not be acceptable to the DOL.
If you follow the first option above and obtain a prevailing wage determination from the U.S. Department of Labor, which usually takes about six weeks, you benefit from a "safe harbor." That means that if the DOL were ever to audit your petition for an H-1B employee, as long as you are paying that employee the amount stated in the PWD, you would have no exposure. This assumes, of course, that the H-1B employee's job responsibilities are consistent with the job you outlined in your prevailing wage request.
If you disagree with the DOL's prevailing wage determination, you can ask for a review within 30 days. Common reasons for review include an inappropriate job classification (as in, the DOL thinks the employee is a manager, rather than an individual contributor) or wage level (perhaps DOL assigns a fully experienced wage level for a lower level employee or increases the wage level for a normal job requirement, such as a foreign language requirement for an interpreter).
If the DOL holds to its original wage determination, you can appeal the decision to the Board of Alien Labor Certification Appeals (BALCA). The first DOL review normally takes about five months, while a BALCA administrative appeal can take much longer.
If you do not request a review, or are unsuccessful with a request for review, and choose not to follow the DOL's prevailing wage, you would have a difficult time explaining in an audit why you chose to disregard the DOL's wage determination. You still might have arguments to support your decision, but the DOL likely would be predisposed to assess back wages.
The primary benefit of performing your own prevailing wage analysis is speed. Rather than waiting six or more months (as of late 2023) to receive a wage determination from the Department of Labor, you simply can review the DOL's wage data, make your determination, and proceed to file the Labor Condition Application.
Another benefit is control. The prevailing wage amount might be ambiguous. Where reasonable minds might differ over the occupational classification or wage level, conducting your own prevailing wage analysis lets you determine the appropriate wage level without relying on the DOL. To be sure, you still must follow the applicable guidelines for assigning a prevailing wage. But if you can predict that the DOL is likely to classify the job differently than you would or to assign an inappropriate wage level, it might be better not to ask for a formal wage determination.
Potential risks arise for employers that do not obtain formal Department of Labor wage determinations, however. In the event of an audit, the DOL will conduct its own analysis and potentially set aside your prevailing wage analysis. If the DOL finds that the wage should be higher than the level you assigned, you might need to pay the H-1B employee the difference between what you paid and what the DOL determines is the required rate.
Given the complexities, most employers choose to hire experienced immigration attorneys to handle these applications. Larger companies might even keep an attorney on staff.
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If your only H-1B employer has been cap-exempt, you have not been counted against the annual H-1B cap, or limited annual allotment. Universities and affiliated nonprofits are not subject to the annual quota for H-1B visas (65,000 base amount; 20,000 additional for U.S. graduate degree holders).
This means that if and when a private company files an H-1B petition for you, you will need one of the 85,000 visas—and they tend to run out fast. If the quota already has been exhausted for the current federal fiscal year (October 1 to September 30 of the following year), you would not be able to change employers until October 1. Therefore, you'd want to check the H-1B quota usage and evaluate the timing for when the employer files the petition and when you can start the new job.
The second thing to consider is that there really is no such thing as an "H-1B transfer." Each new employer must file a petition to sponsor you, and a prior H-1B approval does not guarantee that the next employer's H-1B petition will be approved.
Sometimes the word "H-1B transfer" is used to refer to someone who has H-1B status to work at one company and is "transferring" to work at another company. If the H-1B worker already has been counted against the annual quota, then their allocation in the prior year's quota is "transferred." So it just means the person is not subject to the annual quota. But for someone going from a cap-exempt to a cap-subject employer, not even an H-1B visa allocation/prior year quota is being transferred.
For more information, see Nolo's articles on Life in the U.S. on an H-1B Visa or consult an experienced immigration attorney, who can advise you on the possibilities before you bring it up with your current or possibly future employer.
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