Applying for H-1B
H-1B (Specialty Occupation)
Overview:
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.
Eligibility:
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.
Validity Period:
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 employer needs to register for H1B and be accepted by USCIS. The earliest date a U.S. employer can begin applying for the H-1B is April 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.
Process:
1. Register with USCIS. If the registration is accepted, then the employer can move forward. If the cap is reached, USCIS will conduct a lottery and adjudicate only the selected petitions.
2. 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.
3. 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.
4. USCIS determines whether your employment constitutes a specialty occupation and whether you are qualified to perform the services.
5. When adjudicating, USCIS 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:
• $10 – USCIS H1B Registration fee;
• $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);
• $2,500 - 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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