H-1B Visas for Professionals

The H-1B non-immigrant visa allows temporary employment in the United States for foreign nationals, who do not otherwise have work authorization to enter the U.S. The United States Citizenship and Immigration Services (USCIS) has set the following current cap for H-1B visas:

58,200 H-1B visas are available for individuals who for the first time will fill a position requiring at least a bachelor’s degree. Examples of H-1B specialty positions include: financial planner, business analyst, accountant, software engineer, engineer, computer programmer, programming analyst and many other jobs.

An additional 20,000 H-1B visas are available for individuals who have a US masters or higher degree.

Eligibility and Requirements

  • Sponsored individuals must possess (a) a bachelor’s or higher degree or its U.S. equivalent, or (b) a combination of education and experience equal to a U.S. bachelor’s or higher degree enabling the employee to perform the duties of the H-1B visa sponsored position.
  • The wage offered to the H-1B sponsored individual must be at least the prevailing wage, or the actual wage paid to other workers similarly employed, whichever is higher.

Authorization Period, Extensions and Conversions

  • Employees sponsored to work in the U.S. on an H-1B work visa are initially allowed to work in the U.S. for up to three years. The individual is allowed to work in the U.S. under H-1B visa status for up to six years.
  • H-1B visa status can be extended in one-year increments beyond the six-year cap if the individual has had a labor certification application pending on their behalf for more than 365 days prior to reaching the cap, H-1B Visa status can be extended for three years if a PERM application is approved, subsequent I 140 application is approved, and immigrant visa number availability does not allow the filing of their green card application.

H-1B Portability

Individuals presently in the U.S. under H-1B work visa status may begin to immediately work for a new H-1B employer as soon as the USCIS receives an H-1B Visa application filed on their behalf.

 

The H-1B Cap: Proactive Legal Counsel

April 1st, 2009 will now be the earliest date an employer may file a petition requesting H-1B employment on behalf of a prospective employee who has never been classified as an H-1B non-immigrant. The employment start date must be October 1st, 2009 or later (the start of the U.S. Government’s Fiscal Year 2010).

[The H-1B cap does not apply to individuals who already are in H-1B status and who are applying for an extension of their H-1B status.]

The ability to file typically closes within a few days after April 1st of each year since the H visa caps are quickly met. Therefore, The Shapiro Law Group recommends that you now begin reviewing your anticipated employment needs as they may relate to the sponsorship of individuals requiring an H-1B work visa for Fiscal Year 2009. We can assist immediately in assembling the documentation required for H-1B approval, in order to submit applications in a timely manner after filing opens.

 

H-1B Visa Transfers

Once an employee has obtained an H-1B visa for employment in the United States, they can go to work for the employer that sponsored the visa application. However, the H-1B visa can be transferred to a different employer once the individual is in the U.S. With the help of an experienced H-1B transfer lawyer, the transfer process can be efficiently and effectively navigated.

 

It is widely known that only a certain number of H-1B visas are issued each year. However, this cap does not always apply in the H-1B transfer situation:

  • If the individual came in on an H-1B visa for an employer that was not subject to the cap and are transferring to an employer that is also not under the cap, then the H-1B visa transfer does not fall under the current year’s cap.
  • If the employee came in on an H-1B visa for an employer that was not subject to the cap and now are transferring to an employer that is subject to the visa cap, the individual is now subject to the cap along with every other H-1B visa applicant.

The transfer of an H-1B visa can be a complicated and confusing process. We can guide you through the processes, whether you are an individual or a business. Get in touch with us today to discuss this situation further.