Applying for H-1B in April, 2019
H-1B (Specialty Occupation)
H-1B is an employment-based nonimmigrant visa that allows a foreign national to come to the U.S. and temporarily perform services in a specialty occupation. A specialty occupation is one, which requires theoretical or technical expertise in specialized fields, including but not limited to: architecture, engineering, mathematics, science, computer programming, and medicine.
To qualify, a foreign national must hold a bachelor’s or higher degree (or an equivalent degree) in a specific specialty related to the job offered by a U.S. employer.
Specifically, the job must meet one of the following criteria to qualify as a specialty occupation:
• Have a minimum entry requirement of a bachelor’s or higher degree or its equivalent;
• 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 a degree or its equivalent for the position; or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
The foreign national must meet one of the following criteria:
• Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
• Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
• Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
• Have education, training, or experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
A period of stay in the United States is initially up to 3 years, and may be extended to a maximum of 6 years. Extensions beyond 6 years may be possible under AC21.
Cap Count (Quota):
H-1B visas are numerically limited, with a total of 65,000 visas available each fiscal year. Additional, 20,000 of H-1Bs are restricted to individuals who have received a master’s degree or higher from U.S colleges or universities. The earliest date a U.S. employer can begin applying for the H-1B is April 1st of every year, and the earliest employment starting date is October 1st of that year. If the H-1B cap is reached, USCIS will conduct a random selection process (lottery). Certain US employers may be eligible for the cap exemption. (For example, a nonprofit colleges or universities, etc.)
Cap-Gap Extension Provision:
A cap-gap extension is a regulatory provision, which extends an eligible F-1 student’s status to bridge the gap between the end of F-1 status and start of H-1B status (October 1st), thereby allowing the student to remain in the U.S. during the “gap” without having to leave the U.S. even if the OPT authorization and/or F-1 grace period would have otherwise expired before October 1st.
As of April 1st (the beginning of each fiscal year):
1. If your H-1B change of status petition is filed and received by USCIS prior to your OPT expiration date, you qualify for an extension of your OPT employment authorization; or
2. If your H-1B change of status petition is filed and received by USCIS after your OPT expires but during your 60 day grace period following the OPT, your F-1 status and permission to remain in the U.S. are extended, but you are not eligible to work.
However, H-1B via consular processing DOES NOT qualify for the cap-gap extension.
1. The employer must obtain a labor condition application (LCA) from the U.S. Department of Labor concerning the terms and conditions of its contract of employment with you.
2. The employer files the H-1B petition with the USCIS with a certified LCA, requesting a change of status to H-1B or a visa abroad.
3. If the cap is reached, USCIS will conduct a lottery and adjudicate only the selected petitions. If not selected, the whole petition package including the USCIS filing fees will be returned.
4. For the selected petitions, USCIS determines whether your employment constitutes a specialty occupation and whether you are qualified to perform the services.
5. When adjudicating, USICS may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).
6. USCIS will make a decision (approval or denial) on the case.
USCIS Filing Fees:
• $460 – I-129 filing fee;
• $750 or $1,500 - American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee for employers with 25 or less full-time equivalent employees ($750) or employers with 26 or more full-time equivalent employees ($1,500);
• $500 - Fraud Prevention and Detection Fee for initial H-1B status or for change of employers. (Not applicable to Chile/Singapore H-1B1 petitions);
• $1,225 - OPTIONAL Premium Processing fee for employers seeking Premium Processing Service, which guarantees 15 calendar day processing.
• $4,000 - Additional fee for employers with 50 or more employees and more than 50% are in H-1B or L-1
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