H-1B is the most popular work visa in the H class of nonimmigrant visas. In general, an H-1B visa is for a foreign worker coming to the US to temporarily perform services in a “specialty occupation” for a US employer.
What is the Attorney’s Role in an H-1B Petition?
We understand how important H1B Visas are to our clients, and that a successful outcome has a profound impact not just on an individual, but a company as well. H1B Visa applications, whether they are new H1B visas or an H1B transfer or H1B extension, do require careful attention and strong communication.
Documenting eligibility for H-1B visa petitions, both from the employer’s side and worker’s side, is not an intuitive process. Particularly in cases where the job offered is arguably not a “specialty occupation” and the employee does not have the normal qualifications, a good immigration attorney is essential to present a strong, convincing case. Special care must be made in filing the case using the proper job title and occupational code, since some occupations, even if a bachelor’s degree is normally required, may still not qualify for H1B (the key is to establish that a degree in a specialty field is generally required).
Additionally, employers must meet specific obligations by law, which includes maintaining possession of a properly prepared public access file for every H-1B petition filed. In the event of an audit in which the employer is caught failing to meet these requirements, fines and restrictions can be imposed. To protect our corporate clients from liability, we ensure that they meet their legal obligations.
How We Handle H1B Cases?
We work closely with the sponsoring employer and the intended beneficiary. We will do the following:
- Obtain the job description and company profile from the Employer and the academic and work experience record of the Beneficiary
- Analyze the job being offered and the beneficiary’s education and work experience to determine if the specialist/professional criteria are satisfied
- Gather documents and data to support the application
- Evaluate and document the prevailing wage for the job being offered
- Document the employer’s actual wage
- Prepare the LCA for the employer
- File the LCA with the Department of Labor (please note that it takes around 7 business days to obtain a certified Labor Condition Application from the Department of Labor)
- Obtain an evaluation of the employee’s college education if it was obtained outside the US, to show that it is equivalent to a US degree
- Prepare an H1B petition and employer letter of support and send them to the employer for review and signature
- File the LCA and H1B petition with the USCIS once the DOL approves the LCA
- H1B approvals are usually issued within two to three months from the date of filing with the USCIS, unless premium processing is used (the H1B process differs somewhat for an employee who is overseas or who has a valid H1B visa from a previous employer)
- All cases are completed within 3-4 business days from the submission of complete file
To discuss H-1B visa petitions and other alternatives with an experienced immigration lawyer from Wilmington Delaware immigration law firm Huang Law LLC, feel free to contact us, or call our Wilmington office at (302) 478-2900, or Philadelphia Office at (267) 908-5060.
What is a specialty occupation?
A “specialty occupation” is defined by the Immigration and Nationality Act (INA) as an occupation that requires both:
- Theoretical and practical application of a body of highly specialized knowledge; AND
- Attainment of a Bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
The job must meet one (1) of the following criteria:
- A Bachelor’s degree or higher is normally the minimum requirement for entry into the particular position
- The degree requirement for the job is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires the degree or the equivalent for the position; or
- The nature of the duties is so specialized and complex that knowledge required to perform them is usually associated with the attainment of a Bachelor’s Degree or higher. Examples of specialty occupations include positions in accounting, architecture, the arts, business, computers, education, engineering, law, mathematics, medicine and health, the physical sciences, the social sciences and theology.
How many H1Bs are available every year?
Under the current law, the number of available visas per fiscal year is:
- 65,000 in the general pool
- 20,000 additional allotted to those with graduate degrees from US universities
- Unlimited visas for non-profit and government research laboratories and universities
- 6,800 of those 65,000 are reserved for the H1B1 program under terms of the US-Chile and US-Singapore Free Trade Agreements
What are the fees for filing an H1B visa and who is required to pay them?
The employer is required to pay the filing fees associated with the H1B visa petition. The fees include:
- Filing fee of $325
- ACWIA fee of $750 for employers with 25 or fewer employees and $1500 for employees with more than 25 employees (some exemptions may apply for this fee)
- $500 Fraud Prevention and Detection fee (required when an employer is sponsoring an employee for the first time)
- Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H1B petitions (additional fee applies to petitioners who employ 50+ employees in the US with more than 50% of its employees in the US on H1B or L visas; additional fee is applicable to new and change of status petitions, but not for extensions)
- $1,225 Premium Processing Fee (optional)
- Attorney Fee; please call us at (302) 478-2900
May an H1B be extended beyond the 6-year maximum?
Yes. An H1B may be extended beyond the initial six years in one-year increments if an H1B visa holder has a Labor Certification, or an I-140 Immigrant Petition pending for more than one year prior to the end of the six-year period. If the H1B visa holder has an approved I-140, Immigrant Petition, the H1B may be extended in increments of three years beyond the initial six-year period.
How about my spouse and children?
H-4 visas are a special category of visa designed for the spouses and children under the age of 21 of H1B visa holders. The status allows them to stay with the principal applicant, the H1B visa holder, in the US through the duration of the H1B worker’s status. These dependents should apply directly at a US consulate for their visas; the same I-129 approval notice is valid for them as for the principal applicant. Those in the derivative status conferred by an H-4 visa are ineligible to work in the US. However, an H-4 visa does allow a derivative to study in the US. Spouses and children requesting a change of status or extension of stay in a dependent nonimmigrant classification must file Form I-539, Application to Extend/Change Nonimmigrant Status.