An H1-B Visa is a temporary worker visa which permits an alien to work for an employer in the United States on a temporary basis in a specialty occupation. An individual may hold an H1-B Visa for a maximum of 6 years.
This type of visa can be issued in 3 year increments. There are certain circumstances in which the employee may hold their H-1B Visa beyond the 6 year period.
There are a limited number of H1-B Visas. Only 85,000 of this type of visa is given per year. Many are restricted to individuals who have obtained an advanced degree from a United States college or university.
In most cases, the individual must have special skills in certain fields, including:
- Science;
- Medicine;
- Engineering;
- Law;
- Education; and
- Other specialty occupations.
Occupations which require theoretical and practical application of a body of specialized knowledge and, at minimum, a bachelor’s degree or the equivalent thereof are considered especially occupations. Specialty occupations often require:
- A minimum requirement of a bachelor’s degree or higher, or an equivalent degree;
- A degree requirement for the occupation is normal for the industry or the job is so unique or complex that it can only be performed by an individual who holds a degree;
- An employer which typically requires a degree or its equivalent to fill the position; and
- Attainment of a bachelor’s degree or higher because the nature of the specific duties are so specialized and complex that the degree is required.
Key issues to know surrounding the H1-B Visa include:
- The H1-B Visa can be approved by only a specific employer who sponsors an employee to come work at a specific location. In addition, the employer must file a petition with the United States Citizenship and Immigration Services (USCIS);
- The employer must pay all fees related to the H1-B Visa;
- The employee is permitted work under the H1-B Visa for up to six years and must renew the visa every three years;
- If the employer terminates the employee, the employer must compensate the employee with return transportation to the employee’s residence; and
- When the employment is terminated, the employee must notify the USCIS.
What are the Requirements for an H-1B Visa?
There are several requirements for the H-1B Visa. An employee with a specialty occupation must hold a bachelor’s degree or the equivalent experience.
An employer who is completing an H-1B petition must acquire a labor condition application (LCA) from the United States Department of Labor (DOL) prior to filing the H-1B petition with the USCIS. The employee is required to hold a foreign degree that is equivalent to a United States bachelor’s degree or a higher degree in their specialty occupation.
Prior to applying for an H-1B Visa, an individual must have a sponsoring United States employer. This employer will submit an application to the DOL and then to the USCIS. If the employer’s petition is approved by the USCIS, then the individual may apply for their H-1B Visa.
As previously noted, there are only certain types of jobs which qualify for an H-1B Visa. This type of visa only applies to jobs which require specialized knowledge and, at minimum, a Bachelor’s degree or an equivalent degree. In addition, the position cannot adversely affect the wages of American workers or displace American workers.
There are several basic requirements for an H-1B Visa. These include:
- The United States employer is required to hire the employee to work under their supervision and control;
- The position must qualify as a specialty occupation;
- The position must require a Bachelor’s degree or higher;
- The nature and specific duties of the position must be specialized and require complex knowledge;
- The position must be related to the field of study of the employee;
- The employer must compensate the employee with at least the actual or prevailing wage which another individual in their position would receive; and
- A complete application for the H1-B Visa must be filed with the USCIS and all required fees must be paid by the employer.
Typically, processing time for an H1-B Visa is between 2 and 6 months. Each visa petition is unique so there will be different processing times depending on the facts and factors contained in the petition. The USCIS has a 15 calendar day timetable for the premium processing of petitions.
What is an H1-B Change of Status?
An adjustment of status, or a change of status, permits an individual to reside in the United States permanently under lawful permanent resident status. This grants the individual civil benefits, including the right to vote and other privileges.
Under an H1-B Visa, it is typically possible for an individual to file for an adjustment of status after a period of time. The requirements for obtaining an H-1B Visa change of status include:
- Filing a request with the immigration authorities, called Form I-485;
- Submitting any and all requested documents, papers, and records;
- Providing proof of employment and a history of previous residence locations; and
- Providing proof that the applicant has a clean criminal record.
What if my Application was Denied?
In some cases, an individual’s application for a change of status may be denied. For example, there may not be any slots remaining for that year because the number of permanent resident applications which can be granted each year is limited. If a denial occurs for this reason, it may be possible to appeal the denial.
In the alternative, an H1 Visa holder may be granted additional extensions upon request to the immigration authorities. An H1 Visa may be extended in different ways.
For example, it may be extended 1 additional year at a time or 3 additional years at a time. It may be necessary to have the assistance of an attorney for these types of extensions.
How Long Can an H-1B Worker Stay in the U.S.?
An H-1B Visa is generally valid for 6 years and may be provided in 2 3-year increments. As previously noted, in some cases, the visa can be extended beyond the 6 year period.
If a H-1B Visa holder has filed either a Labor Certification Application or an I-140 petition 365 days prior to the 6 year limitation and the LCA or I-140 has not been denied, the H-1B Visa holder may extend their status on a yearly basis beyond the 6 year limitation.
What If I was Fired or Terminated Due to COVID-19 Issues?
COVID-19 has caused many terminations of employees. If an employee who holds an H-1B visa is terminated, their employer must inform USCIS and offer to pay that employee’s transportation back to their previous country of residence.
The Visa holder’s employer is required to continue paying the H-1B employee as provided by the H-1B petition until they officially request that the USCIS revoke the petition. If the H-1B Visa holder wants to remain in the U.S. after their position is terminated, they have a grace period of 60 days to submit an H-1B petition from a new employer or to transition to a different immigration status.
It is important to note that USCIS has suspended their premium processing due to COVID-19 and the H-1B visa holder’s employer will not know for several months whether or not the USCIS approves their new petition. If the new petition is denied, the H-1B employee would be required to cease working and most likely have to leave the United States.
Has COVID-19 Affected any H-1B Visa Application Processes?
As previously noted, USCIS has suspended their premium processing during this time. Since many departments have been required to cut back on employees who are present at the office, it is likely that there will be delays in application processing during this time. In addition, the deadlines for filing required documents may be extended.
The laws and regulations are constantly changing during the COVID-19 pandemic. An immigration lawyer will be aware of the changes and be able to assist an individual with any H-1B Visa issues they may face.
Should I hire a Lawyer for help with an H-1B Change of Status?
It is necessary to hire an immigration lawyer for assistance with an H-1B Visa change of status. Your attorney can ensure your application is accurate and complete as well as provide guidance and legal representation if you are required to attend any immigration interviews or board hearings.
