11 things to know about H-1B visas

I just came back from dinner with a friend from Latin America who secured a fantastic job at a top law firm in New York. Securing this job was amazing news but it got even better; he just received the long-awaited email that he was drawn in the H-1B lottery. He can stay in the U.S. 

Had he not won, his job offer would have been in vain, and he would have had to leave the country.  Acquiring the competency to work in the U.S. through an LL.M. and passing a bar exam, and being allowed to work in the U.S. are closely intertwined, but they are distinct battlefields. Employers are well aware of the high probability that their chosen candidate may not receive one of the relatively few H-1B visas granted each year. The decision to hire an international attorney only makes sense when the risk is significantly outweighed by the benefit. Considering the H-1B sponsorship from the employer’s point of view helps us better pitch ourselves.

Here are answers to a few commonly asked questions:

What is an H-1B visa?

The H-1B visa is a nonimmigrant visa allowing foreign nationals to enter the U.S. and perform services in a professional job. The job must be in a “specialty occupation” requiring at least a bachelor's degree for entry into the field. A specialty occupation is defined in The Code of Federal Regulations as "an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States."  Working as an attorney qualifies as specialty occupation.

How can I get an H-1B visa?

Foreign LL.M.’s cannot file their own H-1B visa applications; only U.S. law firms and companies can file.  You first have to obtain a job offer from a U.S. employer who prepares and files the visa application with the U.S. Immigration Bureau. Decisions about who receives the visa are made every April. Filing opens at the beginning of April and lasts until the quota has been filled. There is no official filing deadline. Everyone who qualifies has an equal opportunity because the decision is made via lottery.

What is the H-1B Cap?

The H-1B Cap is an annual limit on the number of H-1B visas issued during a fiscal year. Currently the cap is 65,000 with an additional 20,000 visas for graduates in the U.S. with a master’s degree or higher.  However, the quota only applies to new H-1B applications, and does not apply to H-1B status holders who are seeking extensions or a change of employer. 

How long is my H-1B valid?

Generally, an H-1B visa is granted for three years.  It may then be extended for up to an additional three years. There are a few exceptions that allow further extension beyond these six years.

Can I bring someone with me to the U.S. on my H-1B visa?

You may bring your dependents such as your spouse or your children under 21. They will receive an H-4 visa and can stay as long as you maintain valid H-1B status. It is important to note that they may not accept employment, but may attend school in the U.S.

How does an employer petition for an H-1B?

The employer has to file forms such as the Labor Condition Attestation (ETA-9035) and Petition for Nonimmigrant Worker (I-129). When it is approved, the employer or agent is sent a notice of approval (I-797).

When should my H-1B petition be filed if I am currently under optional practical training (OPT)?

An H-1B petition may be filed on your behalf while you are in practical training. Getting an H-1B takes a lot of time, especially since the drawing takes place only once every fiscal year. If your H-1B petition is filed during your practical training, you can have your H-1B ready by the time you complete your training. If your OPT expires before the H-1B is approved, you cannot legally work until the H-1B is approved. However, there are special “cap gap rules that apply to F-1 students whose H-1B petition was filed before their OPT expired.

What happens if I lose my job?

The H-1B is connected to employment and can generally not be maintained without it. However, the amount of time you are allowed to stay in the U.S. after being laid off is not defined by law, which makes it very important to consult with an immigration attorney immediately.

Can I transfer my H-1B visa to another company?

Even though you may hear of an “H-1B transfer,” technically, you cannot “transfer” your H-1B. Your new employer may apply for a new H-1B without the restriction of the H-1B cap, and this can be filed anytime of the year. Since it is not a transfer but a new petition, all H-1B filings must be complete and fully establish the employee's eligibility for the H-1B category, along with the employer's eligibility and compliance with the H-1B requirements. There is not an abbreviated transfer filing that is approved more easily than an initial H-1B filing. Being excluded from the cap is what makes this new petition “easier.”

I am still an employee at my company, but without pay. What is my status?

The law requires that you get paid from the start of your U.S. employment and even sets a minimum salary (for state-by-state information see here). You cannot legally live in the U.S. without a salary unless you are on unpaid vacation or sick leave. To prove compliance with H-1B status, you should have recent pay stubs. Therefore, you should to act fast if you are no longer being paid.  Consult an immigration attorney immediately. In addition, you can complain to the nearest USCIS office or Department of Labor (DOL).

What is premium processing of H-1B petition?

The Premium Processing Service is an expedited processing of the H-1B petition. The employer has to pay an additional $1,225 fee, guaranteeing that within 15 days USCIS will issue an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation.  According to USCIS, “[i]ndividuals who pay for Premium Processing Service on petitions filed for nonimmigrant classifications that are subject to annual numerical (“cap”) limitations will not have an unfair access to these limited immigration programs.”  Premium processing, therefore, does not give you any advantage in the lottery.

Conclusion

As with any visa, there are many exceptions to the general rules.  This article is intended to provide only general information and I recommend everyone consult an immigration attorney for any visa related questions.  More information can also be found on the website of the U.S. Citizenship & Immigration Services.  

Desiree Jaeger-Fine is principal of Jaeger-Fine Consulting, LLC, a career management firm for international attorneys in New York, and author of A Short & Happy Guide to Networking (West Academic Publishing) (forthcoming).