What is an H-1B Visa?
The H-1B visa is for U.S. employers seeking temporary workers for specialty occupations.
Temporary means a total H-1B visa period of 6 years (H-1Bs are usually applied for in 3 year increments). An H-1B can be extended beyond 6 years if the employer is pursuing permanent residency for the H-1B visa holder.
Specialty generally means a field in which at least a Bachelor’s degree or equivalent is required.
Documents and Information Needed for the H-1B Visa Application
- passport biographic page (with renewal page if applicable)
- passport stamp showing original admission to the U.S. under current visa
- all visa stamps with I-94 card/s since that original entry
- all degrees or degree certifications and associated transcripts
- current resume
If there is a spouse and/or children who will accompany the H-1B visa holder:
- passport biographic page (with renewal page if applicable)
- passport stamp showing original admission to the U.S. under current visa
- all visa stamps with I-94 card/s since that original entry
- marriage certificate
- birth certificate for each child
Minimum Wage Requirement
In order to ensure foreign workers do not undercut American workers, the foreign worker must make at least the “prevailing wage.” This is why we make Prevailing Wage Requests and file the Labor Condition Application.
H-1B Numbers are Limited
The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.
Additional Numbers Available for Applicants Holding a U.S. Master’s Degree or Higher
There are an additional 20,000 H-1B visas for applicants who hold a U.S. Master’s Degree or higher.
Certain Categories are Exempt from the Cap Altogether
If a person has been counted once before, he or she will not be counted again. For example, someone who is changing employers and has previously been counted against another year’s cap, will not be counted again. Or, certain non-profit insitutions of higher learning or those affiliated with such institutions (e.g., most universities and colleges, certain non-profits affiliated with those universities and colleges).
A Brief History of the H-1B
The precursor to H-1B laws were actually anti-immigration laws designed to prevent U.S.companies from continuing to bring in unskilled workers to break U.S. worker strikes or to make wages and conditions worse for the American worker.
H-1B visas were born out of an exception to this general prohibition. Skilled and temporary workers could be brought in to fulfill a legitimate worker shortage in the U.S. so it could continue to thrive and later, compete, with other countries.
In the 1990s, H-1B visa numbers were increased because of a severe shortage of hi tech professionals in America. However, since that time, the H-1B visa allocation has decreased from 115,000 in 1999 to 58,200 (“regular” H-1Bs) + 20,000 (advanced degree H-1Bs) today.
Extensions Beyond the 6 Year Cap
The CSC has pending clarification from USCIS Headquarters, CSC will return to prior policy with respect to certain forms of concurrent H-1B employment involving employment of an H-1B alien in cap-subject employment where the alien is already employed in cap-exempt employment. CSC intends to deny such concurrent filing petitions.
H-1B Visa Holders Pursuing a Green Card Qualify for Extensions Beyond the Normal H-1B 6 Year Cap
This is a confusing area even amongst attorneys but it is important to understand in order to maximize the amount of time an H-1B visa holder may ask for at the time of filing an extension request. In 2005, the USCIS released what is commonly referred to as the “Yates Memo.” This memo provided internal guidance to the regional field offices of the USCIS in how to disposition H-1B extension cases (among other things). As www.StrongVisa.com clients are aware, this memo ratified what had been a tenous practice previously – that is, to be able to ask for an extension of and H-1B through the end of the traditional 6th year cap in addition to an additional year an H-1B holder would otherwise qualify for (e.g., because a Labor Certification, RIR, Perm or I-140 Adjustment of Status application had been pending for over 365 days).
Avoid Filing Separately for Years 6 and 7
This is very important because a combined request for two extensions will ultimately save the H-1B holder a significant amount of money in both filing fees and attorney’s fees (i.e., filing once vs. filing twice in the same amount of time). The Yates memo also clarified that such a combined request can be made if the 365 day requirement is met as of the date of the start day of the 7th year extension period. This is consistent with the ability to file an H-1B extension request up to 6 months prior to the expiration and different from previous iterations of the USCIS.
Important to Understand: You Can File for Year 7 if 365 Day Requirment is Met as of Day 1 of Year 7
Some attorneys are unaware of this reading of the Yates memo and insist that a client file twice if the 365 days will not have been met at the time of the filing the extension request. Unfortunately, as a result, those attorneys will end up filing twice: First through Year 6 and then second at the time the 365 day requirement is met. Other attorneys might recommend that you proceed with the Adjustment of Status (I-140) filing with Premium Processing (thereby incurring an extra $1,225 filing fee). Neither of these extra costs is necessary if you plan in advance and file efficiently.
As clients of The Law Office of Susan Pai are aware, such requests can indeed be made in a combined request, thereby saving the time and money of two separate filings.
H-1B Job Resources
http://www.myvisajobs.com/Top_Visa_Sponsors.aspx
An Important Note About Fees:
Scholarship and Training Fee: $750 for H-1B employers with 25 or less full time employees; $1,500 for more than 25 full time employees. Some non-profit and other organizations do not have to pay this fee. Otherwise, the employer must pay this fee and can not seek reimbursement from the H-1B beneficiary under any circumstances. The Law Office of Susan Pai strongly disagrees with the interpretation that the regulations allow for a non-employer third party to pay this fee. Clients of the Law Office of Susan Pai are advised a violation of this rule may render both the employee and employer in violation of the law with probable negative ramifications for future immigrant applications. With a three to five-fold increase in USCIS enforcement efforts, every applicant and beneficiary should proceed under the assumption their case will be audited.
Fraud Detection Fee: $500 or $2,500. There are no exemptions from this fee but the employer may seek reimbursement from the beneficiary for this fee. However, if this is the case, the prevailing wage must be met taking into consideration a reduction based on this reimbursement. As of August 14, 2010 an additional Fraud Detection Fee of $2,000 is required of petitioners with 50 or more employees in the U.S. with more than 50% of its employees in the U.S. in H-1B or L status. The additional fee is required for initial filings or change employers.
Premium Processing Fee: $1,225. This is an optional fee to fast track your case. Sometimes this is preferable but not always. The employer may seek reimbursement from the beneficiary for this fee. However, if this is the case, the prevailing wage must be met taking into consideration a reduction based on this reimbursement.
I-129 Application Fee: $325. There are no exemptions from this fee but the employer may seek reimbursement from the beneficiary for this fee. However, if this is the case, the prevailing wage must be met taking into consideration a reduction based on this reimbursement.
Attorneys Fees and Costs: Attorneys fees can vary wildly (from $1,000 to $7,000) for H-1B processing. It is the opinion of Attorney Pai that, unless it is an extreme case (e.g., recapture of significant time, prior removal, criminal record), a fair fee for H-1Bs is $4,000 (e.g., simple extension) to $6,500 (for third party placement agencies or where there is likely to be an RFE). Costs include those listed above, with additional fees for dependants, and expenses such as copying and courier fees.
Be wary of attorneys or consultants who insist you file for a greencard immediately upon obtaining an H-1B. There isn’t an urgent need to do so and the greencard process for Employment Based Visas is extremely lengthy and very costly. Unless you and your H-1B employee are committed and mutually invested for the indefinite future, hold off on prematurely filing for his or her greencard.
