H-1B Visa

US employers frequently use the H-1B Visa category to quickly hire foreign nationals. A foreign national generally qualifies for H-1B status if he/she holds at least a US Bachelor’s Degree (or equivalent) relevant to the field in which he/she will be working, and the position normally requires at least a Bachelor’s Degree as an entry-level requirement to perform the job. The H-1B Visa must be sponsored by a US employer. The H-1B Visa is usually granted for three years, and extended up to a maximum of 6 years. Any time spent in the US working for another employer in H-1B or L-1 Visa status will count against the six year limit. Another six years of H-1B Visa time may be available once the foreign national spends one full year outside the US. Foreign nationals may seek US green card (Immigrant Visa) status while on an H-1B Visa.

A petition for H-1B status may be filed with the US Citizenship and Immigration Services (USCIS) Regional Service Center up to 6 months before the requested start date. The USCIS may take several months to process an H-1B. However, for an additional $1,000.00 processing fee, the USCIS will adjudicate the petition in 15 days.

H-1B Extension Beyond 6 Years

Extending H-1B Visas beyond the 6 year limit is possible in some circumstances. Specifically, if the first step in the green card process (Immigrant Worker petition or Labor Certification) is filed before the end of the foreign national’s 5th year in the US on an H-1B, then generally the H-1B can be extended until the green card is approved or denied. If the H-1B employee cannot finalize his/her green card status because of priority date backlogs, then generally a 3 year extension (9 years total) can be secured.

H-1B Cap

The US government limits the number of new H-1B Visas to 65,000 per year (the government’s year runs from October 1 to September 30). Once this limit, or “cap”, is reached, an employer cannot employ a foreign national in H-1B status until the next fiscal year begins. It is important to note that foreign nationals who currently hold H-1B status and are either extending and/or amending that H-1B status, or are seeking H-1B status with another employer, are not subject to the cap. Additionally, foreign nationals who will be employed by a non-profit organization or an institution of higher learning are not subject to the cap.

20,000 additional H-1B's, beyond the 65,000 listed above, are available to foreign nationals who have a Master Degree, or other advanced degree, from a US college or university.

H-1B Portability

H-1B Portability allows a foreign national, who currently holds H-1B status to change employers more quickly. Once the new employer files an H-1B petition, and it has been received by the USCIS, employment with the new company can begin. This saves significant time, as the employer does not have to wait for approval of the H-1B, which could take several months. The USCIS must receive the H-1B petition before it is considered filed, and we recommend waiting until the printed receipt arrives before changing employers (about 1 to 2 weeks). In some cases persons can travel internationally while utilizing H-1B portability.

Changing H-1B Status And International Travel

A foreign national in the US in a lawful immigration status (other than H-1B), who is applying for a change to H-1B status, generally should not travel outside the US while his/her H-1B petition is pending. The USCIS can deny a change of status petition if it determines that a foreign national has departed the US while the H-1B petition is pending. However, these international travel limitations may not apply for foreign nationals changing from one H-1B employer to another H-1B employer.

Family Members

The H-4 Visa is available to the spouse and children (under the age of 21) accompanying the H-1B applicant to the US. The H-4 Visa is generally granted for the same period of admission that the primary H-1B Visa holder receives, and must be extended accordingly. As with H-1B change of status petitions, international travel should be postponed for those filing a change to H-4 status.