H-1B Visa, Specialty Occupations
This category of non-immigrant visa is most desired. It is eligible for application of the Dual Intent Doctrine. It is designed for persons in a "specialty occupation" which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. It has an annual cap of 85,000 visas (REGULAR CAP). The first 20,000 petitions filed for those workers with a master's degree or higher from a U.S. university (ADE CAP) are exempt from the annual regular cap limitation. Similarly, petitions for workers at institutions of higher learning, non-profits and government research organizations are exempt from the annual regular cap and ADE cap limitations.
This H-1B category also includes fashion models (H-1B3) and government to government employees (H-1B2) in research and development or co-production projects administered by the U.S. Department of Defense (DOD), discussed elsewhere under "Specialty Visas & Programs."
Employer Requirements for the H-1B Visa
To be a hire a candidate for this visa the employer must first conduct a qualified American employee search, through its state department of labor and then file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) and demonstrate that the job offered requires a significant body of highly specialized knowledge or experience. This LCA is not to be confused with a Labor Certification utilized in EB-2 & EB-3 visas.
H-1B Visa Employee Qualification
The candidate for employment must have a bachelor's degree or higher required by the specific specialty occupation, or education and training equal to such a degree and have any required licenses.
H-1B Visa Submission Process
The employer must submit the LCA approval, the USCIS Form I-129, all accompanying documentation and pay all required filing fees. The employee can elect to pay any Premium Processing Fee. H-1B self-sponsoring entrepreneurs' petitions may be possible with specific corporate governance structuring.
USCIS Filing Fees
The USCIS filing fees aren't cheap. For the year 2013, there is the filing fee of $325, the American Competitiveness and Workforce Improvement Act "Training" fee of $750 for employers with less than 26 employees and $1500 for those over with over 25 employees, and the Fraud Prevention/Detection fee of $500.
Besides these filing fees, some petitions for H-1B visas must include an additional $2,000. This applies only to companies that employ 50 or more H-1B employees or their employment ranks contain more than 50% H-1B employees. Employers can refute said payment based upon their company size, but can expect a Request For Evidence (RFE) from USCIS in this regard. And, if the employer needs the employee quickly or fears the cap for the year is about to be reached, a Premium Processing fee ( approximate 15 day turn around) of $1225 for expedited processing. Plus, the employee with have his/her visa fees at its home U.S. Embassy or Consulate and fees for spouses and children. Although not cheap the visas are still worth it as the annual cap limitation is reached every year.
Annual Visa Cap Limitation Quota or System
For the year 2012 the 85,000 regular cap plus ADE cap limit or quota was reached on June 11, 2012. For the year 2013 the acceptance date for filing of H-1B is April 1, 2013. Assuming that this year will as demanding as last year, all of the cap visas will be filled by sometime in June. Only a 2-plus month window. Since labor certification must be completed first it is nearly impossible to procure an H-1B visa for an employee unless the employer is already deep into the entire process. Naturally, H-1B transfer visas and employees working in for an institution of higher education, non-profit or government research organizations still have viable options.
H-1B Visa Period of Stay
The visa is first approved for up to 3 years with a 3 year renewal extension possible. Extra stays may be allowed under the American Competitiveness in the Twenty First Century Act of 2000 (AC21).
Portability
The AC21 allows certain foreign nationals who are in the process of obtaining their permanent residency, based on employment, to change employers (AC21 Portability) after their; Labor Certification has been completed and approve, after their I-140 has been filed & approved and while the I-485 is being processed. The new employment must be in the same or a similar occupation classification and the I-485 must have been pending for at least 180 days.
Spouses and Unmarried Children of H-1B Visa Holders
An H-4 visa is available to spouses and unmarried children under the age of 21 (immediate family members) of holders of all "H-1B" category temporary visas (H-1B, H-1B1, H-1B2, & H-1B3) to lawfully come to and stay in the U.S. during the duration of their working spouses "H-1B" visa. It is also available for adopted children. H-4 holders cannot get social security numbers or work. But, they can attend school and college, hold a driver's license, open bank accounts and get taxpayer identification numbers.
To apply for their H-4 visa each applicant, will complete the USCIS form DS-160, needs a passport from their country of origin, valid for at least 6 months beyond the permitted stay of their working spouse or parent. Spouses will need to provide Marriage Certificates and all applicants will need to have valid (translated if necessary) Birth Certificates, provide accompanying documentation and pay all required filing fees. Interviews will be conducted at their local U.S. Embassy or Consulate.
With the 2013 immigration reform pending, the winds of change are blowing. Soon the annual limits on applying applicants should increase significantly. We will monitor and stay abreast of these changes.
This is one area of immigration law that can become somewhat tricky and an attorney is strongly recommended.
Remember our old standard, " with immigration nothing is as simple as it first appears℠." Our lawyers can prepare these petitions for you. Call us today at (843) 276-3311!
