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What is H-1B Visa?

What is H-1B visa, and how do you get one?

The H-1B visa is a non-immigrant visa, also known as a temporary visa, or even a work permit in some circles.

It requires a U.S. company to apply for a job that requires a four-year U.S. degree in a specialty occupation. The H-1B visa is initially valid for three years, with the possibility of one additional three-year extension, giving six years’ maximum stay in total. USCIS normally issue a maximum of 65,000  each year.

What is H-1B visa?

If the beneficiary (the prospective visa recipient) has a 4-year degree from an American university, or an equivalent degree from a foreign education provider, and the petitioner (the prospective employer) will pay the prevailing wage for the County and State for the position in question, then they should be able to obtain an H-1B visa.

Determining and meeting the prevailing wage requirement can be very challenging, and that is one of the most common areas where an application can be held up, or even denied, so applicants are advised to get advice from a qualified immigration attorney as early as possible in the process.

However, the H-1B visa has a numeric limit, also known as a cap, and therefore the H-1B visas usually hit this limit every year. The H-1Bs open for registration on April 1st each year. In March there is a pre-registration period called the lottery. Those who are picked by the lottery can then file for their H-1B visa petition within three months, but for a start date no earlier than October first of that year.

The H-1B has come under considerable political strain during the Trump Administration, however the Federal Courts have shut down many of the strategies that were used by the last administration to deny common H-1B-related business models, particularly those used by staffing companies, many of which rely on the H-1B to attract and bring in foreign talent.

Occupations that are suitable for H-1B petitions are found in the OOH (Occupational Outlook Handbook) and guidance on prevailing wage levels can be found either via the National Prevailing Wage Center or you can obtain information on prevailing wages from the FLC Data Center.

Visit our H-1B visa page for more information and details on the H-1B, its requirements, and the 5 most common reasons for denials.

If you want more information on how your company can apply for the H-1B visa, or if you think you may meet the requirements for an H-1B visa yourself, and you have an employer, please contact us to set up a free strategy session with one of our immigration attorneys.

What is H-1B Visa: Video

OnlineVisas’ Lead Counsel and CEO, Jon Velie, answers your main questions around what is H-1B.

H-1B Visa FAQs

“Can I bring my family with me to the United States?”

Yes, your immediate family (i.e. spouse and any unmarried children under the age of 21) may accompany you to the US under an H4 visa. They will be permitted to study but not work in the United States.

“Can I stay in the US on an H1B visa and be self-employed?”

No You cannot be self-employed under an H-1B visa. You must be employed by a US-based sponsoring company.

“Can my degree be issued by any university?”

Yes, in principle, however you may need to have your credentials evaluated by an approved organization. We can advise and help with this.

“How long does it take to file an H-1B visa after the LCA is approved?”

The LCA (Labor Condition Application) is a document filed with the Department of Labor that takes between 7 to 10 days to process. After the LCA is certified , filing the H-1B visa is done almost immediately. Often, employees can continue working while the LCA is pending.

This type of work authorization requires that you have all necessary documents related to the job. The documents need to show that the prevailing wage is being met, the position is a specialty occupation, and the assigned work covers the duration of the visa.

H-1B Filing and Selection Periods

Once the H-1B petition is filed, the selection process can take anywhere from four to six months, depending on whether the petitioner is subject to the cap or not.

Cap-subject H-1B visa petitions have to be filed in the first five days of April to compete for the 65,000 available visas. Once USCIS fills the 65,000 cap-subject slots, another 20,000 visa petitions are selected in a lottery designated for the graduates of U.S. universities with master’s
degrees or higher.

The selection period often lasts through the middle of summer. We have even seen notice of selection received after the October 1st start date.

“I do not have a degree. Can I still qualify for an H1B visa?”

Yes. If you have relevant work experience in you speciality field, you may qualify with equivalent experience. You will normally need three years’ work experience per one year of degree study, so typically twelve years’ minimum.

“Is it possible to stay longer than 6 years on an H1B visa?”

No, the visa itself is strictly limited to the initial 3 years plus possible 3-year extension. However you may be able to stay longer if you apply for permanent residency (Green Card) while holding an H-1B visa.  But, it is important you apply for the Green Card by the end of year 2 of your extension.

“Is there a minimum length of degree study?”

To qualify for the H1B, you typically need minimum four years of study on a degree course. If you have completed more than one degree, it may be possible to combine the time spent on multiple degree-level courses. You may also use a combination of university study plus progressive work experience.

“What does “progressive” experience mean?”

The USCIS has not specified exactly what is meant by “progressive” but you can take it to mean that your work must have required continual advancement over time.

“What is credential evaluation?”

This is simply the process of assessing to what extent education or work experience gained outside the United States is equivalent to similar experience in the US. Foreign education may be evaluated by evaluators outside the US, but work experience gained in other countries must be supported with documentation.

“What would be the consequences if the US ended H1-B visas?”

It would adversely effect our tech, medical, science, higher education ad many others. US companies require the best and brightest to compete. We have massive numbers of jobs in the tech and other industries that can not find enough talented workers in the STEM fields.

Jobs and companies would leave the US for more welcoming nations. International students will also drastically drop in numbers impacting US colleges and universities.

“Are F2 visa holders allowed to attend a job interview in order to get H1B sponsors?”

Yes, attending an interview is not considered work and not in violation of the F-2 or other visas that do not permit unauthorized work. If you are offered a position. You may change your status to an H-1B subject to its filing procedures.

“Are there increase in H1B RFEs and/or rejects in the recent past?”

At Online Visas we have not witnessed such a major spike in the number of Requests For Evidence (RFE) and denials (USCIS data indicates 400%) in the recent past.

The severity of consequences for even minor clerical mistakes is expected to increase as USCIS officers are no longer required to issue an RFE or Notice of Intent to Deny (NOID) as of today, Sept. 11, 2018, when PM-602-0163 goes into effect.

“Can I port my H1B to a new employer after an H1B amendment denial?”

You can port your H-1B if you are still working on the original H-1B, however if you left the first job went to another position and the previous H-1B has expired, you may have broken the chain. I would need more information, please feel free to contact us directly to better address your situation.

“Is the LCA filed for the H1B process tied to a specific employee?”

The Labor Certification Application (LCA) is submitted to the U.S. Department of Labor (DOL) to ensure that there are no American’s willing or qualified to take the job and that the employer pays the prevailing wage.

Determining the prevailing wage is one of the most common areas where an application can be held up.

“What are the possibilities for an H1B visa in the entertainment industry, for someone with the higher education in a totally different background?”

Obtaining an H-1B visa hinges on the ability to demonstrate the applicant’s specialized knowledge that qualifies them for the position.

An O1 visa may be an option if you meet at least three of the following conditions:

  1. Have received national or international awards or prizes of excellence in their field.
  2. Being a member of associations whose membership requires outstanding achievement, judged by nationally or internationally recognized experts in the respective discipline.
  3. Their work has been featured in professional or high-profile trade publications or mainstream media.
  4. The applicant has served in some capacity as a judge of others in the same (or closely related) field. This could either be individual or as part of a judging panel.
  5. Have had articles published in professional or notable trade publications.
  6. Have made original scientific, academic, or business contributions of major significance in their respective field.
  7. Have served in a leading or critical capacity for highly regarded organizations or establishments.
  8. Command a high salary or remuneration for their services.
  9. Other relevant evidence of exceptional expertise that does not fit any of the above criteria.
“What is the process of sponsoring (for the company) and qualifying for (the person) an H1B visa? What are the hoops that have to be jumped through? How much does it cost?”

In order to protect the interest of US citizens and residents, the H-1B requires a Labor Condition Application (LCA) which is set in place to ensure equal opportunity, pay, and working conditions for foreign workers and US citizens and residents.

One step in this process is the LCA Notice of Posting. Essentially, this is a requirement that the employer formally informed their employees and the public in writing that the LCA is being filed.

The notice of posting can come in two forms – a hard copy notice or an electronic notice. To post a hard copy notice, after the LCA attestation is accepted, the employer must print and sign the LCA. Then, they must post it in two conspicuous places in the work area where the beneficiary would be working.

An electronic notice should be given on or within 30 days before the labor certification is filed. It should be made available for viewing by affected employees for at least 10 days. The employer may make the notice available using any means it normally uses to communicate with workers such as a “home page” or “electronic bulletin board”.

Rules for the notice of posting vary slightly depending on if there is a bargaining representative or not.

According to the Code of Federal Regulation, if there is not a bargaining representative, the notice should include:

  • that H-1B nonimmigrants are sought;
  • the number of such nonimmigrants the employer is seeking;
  • the occupational classification; the wages offered;
  • the period of employment;
  • the location(s) at which the H-1B nonimmigrants will be employed;
  • and that the LCA is available for public inspection at the H-1B employer’s principal place of business in the U.S. or at the worksite.

The notice should also include the statement:

“Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”

If there is collective bargaining representative for the occupational classification in which the beneficiary will be employed, the notice should pinpoint:

  • the number of H-1B nonimmigrants the employer is seeking to employ;
  • the occupational classification in which the H-1B nonimmigrants will be employed;
  • the wages offered;
  • the period of employment;
  • and the location(s) at which the H-1B nonimmigrants will be employed.

In addition to posting the labor certification, the employer must develop and maintain documentation to support the statements made in the notice of posting.

The Code of Federal Regulation States that the employer should retain records for one year beyond the period which the H-1B nonimmigrant was employed under the labor condition application or, if no beneficiary was employed, one year after the date the LCA expired. Moreover, the documentation must be made available for public and Department of Labor examination upon request.

“What kinds of RFEs USCIS are imposing on H1B Extensions?”

FYI: Effective Sept. 11, 2018, USCIS officers are no longer required to issue a Request For Evidence (RFE) or a Notice of Intent to Deny (NOID) and may outright deny an application, petition or request for even minor clerical mistakes.

4 major issues with H-1B visas that can trigger an RFE

1. Deference to previously approved visas

The first major hurdle for H-1B visa holders came in the form of Policy Memorandum 602-0151 issued on October 23, 2017. The new memorandum rescinded previous guidance, issued April 23, 2004, that gave deference to prior determinations of eligibility for H-1B visa holders filing for extensions that involved the same parties and underlying facts as the initial petition.

In other words, USCIS introduced a series of policies with more stringent standards to apply to previously approved petitions.

2. Level 1 wage

The second complication to H-1B petitions is wage levels. More H-1B RFEs now question wage level 1. On March 31, 2017, USCIS issued a policy memorandum that put into question the qualification of ‘computer programmer’ as a specialty occupation. Specifically, entry-level positions that require a university degree, but no experience are typically classified under level 1 wage. USCIS has argued that the job duties paying level 1 wages are not complex enough to qualify as specialized but too complex to be considered entry-level because they involve the exercise of judgment and thus require oversight from a wage level 3 supervisor. Quite the predicament.

3. Specialty occupation

This brings us to the problem of singular degrees and specialization. USCIS contends that a specialty occupation requires a theoretical and practical application of a body of specialized knowledge and together with at least a bachelor’s degree or its equivalent. The issue with the singular degree requirement is that often the coursework of a related degree provides the specialized knowledge needed to perform job duties.

For instance, to fill a computer programmer position an applicant does not necessarily require a computer science degree to carry out tasks. Instead, a person with a mathematics or information technology degree can adequately fulfil such job responsibilities. Under the new policy, if an employer determines that an applicant with a mathematics degree is most qualified for a computer programmer position, a technical evaluation must then be submitted with solid documentation demonstrating how the applicant’s coursework is directly connected to the job description, adding time and money to an already complex process.

4. Right to control

Another obstacle to the H-1B visa is the “right to control” in which USCIS scrutinizes the employer-employee relationship by weighing multiple factors such as who directly supervises the H-1B worker and whether supervision is performed on or off-site.

If the work is performed off-site, then the method and frequency of supervision are analyzed. USCIS further evaluates the employer-employee relationship in a myriad of ways, most common are: who pays the H-1B worker, sets their hours, directs their daily tasks, is in charge of hiring and firing, provides benefits and claims the worker for tax purposes. The use of proprietary information and whether the end work product is directly linked to the H-1B employer’s (petitioner’s) business is closely examined.

To combat such intrusive investigation by USCIS, project management software that indicates oversight and services provided by all constituents should be used. Furthermore, submitting an itinerary or any and all documentation demonstrating the employer-employee relationship with specific job duties that is signed by all parties can help increase the chances of success.

“Will it be a good option to switch jobs after 9/11 with H1B filed under normal processing and waiting for the final approval?”

Obtaining H-1B transfer approval to switch jobs without premium processing, which is suspended until mid-February, will be an extremely SLOW process. Exploring H-1B visa alternatives could be a solution to avoid long wait times.

“Will restricting legal immigration destroy the country economically as H1B visa holders pay billions of dollars in taxes annually and they get no benefits (no social security, no medicare or other benefits)?”

Restricting H-1B visa issuance has a number of negative impacts on our economy. Statistically every H-1B visa creates almost two jobs for Americans on average. In smaller companies it can create almost 7 jobs per each H-1B. Reducing H-1Bs reduces jobs for Americans at almost double a rate.

Makjng these high skilled visas tougher to obtain for American companies forces jobs and companies to leave America. It also has caused foreign nation students to lose interest in attending US Universities. Indian students have decreased admissions by 28% while Chinese students havre decreased by 24%. This translates to a loss of approximately $2 Billion in tuition to US universities annually.

Other countries like Canada and India are already enjoying increase migration of American companies and foreign nationals to bolster their economy especially in the tech industry.

The US has lead the world in technology by importing the top skill in the world to come to our inviting and innovative environment, visa regulations are chilling this environment, this could cause us to lose our leadership position and adversely impact our economy.

Is USCIS not sending RFEs for H1 petition this year?

Effective Sept. 11, 2018, USCIS officers are no longer required to issue a Request For Evidence (RFE) or a Notice of Intent to Deny (NOID) and may outright deny an application, petition or request for even minor clerical mistakes.

The new policy implementation allowing USCIS officers the ability to deny a visa or green card application, petition or request without issuing a Request for Evidence (RFE) gives adjudicators almost full discretion to make complex judgments without clear standards nor proper oversight to safeguard against unequal treatment.

What this means is that immigration officials who have questions about a case or see a technical issue can merely deny instead of give applicants or petitioners an opportunity to correct clerical errors or provide US employers and attorneys the right to address concerns.

The intensified restrictions to immigration still allow for the official to issue an RFE, but will they? In some cases yes.

However, past actions signal that denials will rise, even in cases that would ultimately be approved given the opportunity to rectify concerns or submit additional evidence.

USCIS’ updated policy states that an application, petition, or request can now be denied without issuing a Request for Evidence (RFE). What will be the implication of this on H1B Visa holders?

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