H-1B Visa Guide

H-1B visas are for foreign-born professionals with offers of employment in the U.S. Over the past 30 years, our law firm has obtained H-1B visas for thousands of accountants, architects, attorneys, business professionals, computer programmers, engineers, health care workers, physicians, researchers, system analysts and other professional employees.

To be eligible for H-1B status, you must (1) have a minimum of a four-year university degree (or equivalent); (2) be paid at the “prevailing wage”; and (3) the job must typically require a minimum four-year university degree or equivalent.

H-1B visas are subject to a numerical cap of 65,000 per fiscal year.  In additional, 20,000 persons who obtain advanced degrees from universities in the U.S. have their own H-1B cap.  Up to 6,800 H-1B visas are reserved for persons who are citizens of Chile and Singapore.

Cap-subject employers should prepare their H-1B petitions during February and March, and submit them so that the USCIS will receive the petitions an the beginning of April.  Persons on whose behalf H-1B petitions are approved may start employment on October 1st.  However, there are special rules for graduates working on Optional Practical Training (OPT) which enable them to continue working for their employers during the spring and summer and automatically changing status to H-1B on October 1st.

Certain H-1Bs petitions are exempt from the numerical caps including employment “at” universities, at “affiliated” or “related” organizations or at non-profit or governmental research institutions.

H-1B visas are typically valid for 3 years and can easily be extended for an additional 3 years. If a PERM application or an I-140 visa petition has been submitted in a timely fashion, post-6th year extensions of H-1B status are possible. We recommend that you extend your H-1B status until the day that you become a lawful permanent resident of the U.S.

We hope that the information listed below will help you to obtain an H-1B visa, or, if you are an employer, to understand how to sponsor foreign-born professionals for H-1B status.

 

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The H-1B Visa Guide is divided into the following subtopics:

 

• General Information
• Success Stories
• American Competitiveness in the 21st Century Act (AC-21)
• Adjustment of Status to Permanent Residence
• Reports and Articles
• American Competitiveness Act (ACWIA) and Regulations

 

H-1B – GENERAL INFORMATION

 

• U.S. Firms Say H-1B Restrictions May Help Them (4-19-13) 
• USCIS Reaches Fiscal Year 2014 H-1B Cap (USCIS) (4-8-13)
• H-1B Fiscal Year 2014 Cap Season (USCIS)
• H-1B Cap Update (Fiscal Year 2014)
• H-1B Examination: Test Your Immigration IQ
• New H-1B Law FAQ
• H-1B Cap Update (Fiscal Year 2013)
• Q&As: Establishing the “Employee-Employer Relationship” in H-1B Petitions (USCIS) (3-12-12)
• H-1B Fiscal Year 2013 Cap Season (USCIS) (3-31-11)
• H-1B Visa Recruiting Season Underway (5-4-11)
• USCIS Announces Proposed H-1B Electronic Registration System to Reduce Costs for U.S. Businesses (3-02-11)
• Fraud Detection and National Security (FDNS) Site Visit Sample Follow-Up E-mail
• USCIS H-1B Cap Update (Fiscal Year 2012)
• USCIS H-1B Cap Update (Fiscal Year 2011)
• Reforms Are Needed to Minimize the Risks and Costs of Current H-1B Visa Program (GAO) (January 2011)
• Form M-735, Optional Processing Worksheet for H-1B Filings (USCIS)
• USCIS Implements H-1B and L-1 Fee Increase (8-19-10)
• U.S. District Court Decision Regarding H-1B Memo (8-16-10)
• Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (USCIS) (1-08-10)
• Q&As on the 1-08-10 H-1B Memo (USCIS)
• USCIS H-1B Cap Update (Fiscal Year 2010)
• USCIS Will Temporarily Accept H-1Bs Without LCAs (11-10-09)
• How to Use Your H-1B to Qualify Under Section 245K (7-30-09)
• The Importance of Maintaining Your H-1B Status (5-20-09)
• H-1Bs: Let the Market Decide the Number of Working Visas (4-14-09)
• Q&As on OPT “Cap Gap” (USCIS) (4-01-09)
• Q&As: Employ American Workers Act and its Effect on H-1B Petitions (USCIS) (3-20-09)
• USCIS Announces New H-1B Requirements for Companies Receiving TARP Funding (3-20-09)
• USCIS Regulation Prohibiting Multiple Filings of H-1B Petitions (3-24-08)
• USCIS Announces Interim Rule on H-1B Visas (3-19-08)
• USCIS Guidance On Determining Periods of Admission for Aliens Previously in H-4 or L-2 Status: Aliens Applying for Additional Periods of Admission Beyond the Six-Year H-1B Maximum; and Aliens Who Have Not Exhausted the Six-Year Maximum But Who Have Been Absent from the U.S. for Over One Year (12-05-06)
• USCIS Guidance Regarding Exemption from H-1B Cap Under AC-21, Section 103 (6-06-06)
• USCIS Reaches 65,000 H-1B Cap for FY2007 – Only 700 Visas Used by Nationals of Chile and Singapore (6-01-06)
• Recapture of Time Spent Outside U.S. for Persons in H and L Status (USCIS) (10-21-05)
• USCIS Adopted Decision Regarding Recapture of Time Spent Outside U.S. for Persons in H and L Status (10-18-05)
• USCIS Implements H-1B Reform Act of 2004 (5-04-05)
• FAQ on 2004 Bill Regarding H-1B and L Visas (Public Law 108-447)
• INS Memo: “Social Security Cards and the Adjudication of H-1B Petitions” (11-20-01)

 

Success Stories

 

 

• Getting an H-1B Approved for a Remote Worker (March 2012)
• Avoiding the H-1B Cap with a Little Help from the USCIS (August 2009)

 

More success stories…

American Competitiveness in the 21st Century Act (AC-21)

 

• FAQ on “Same or Similar Occupation” under AC-21 (USCIS)
• FAQ on Extension of OPT and F-1 Status for Eligible Students (USCIS)
• Supplemental Guidance Relating to AC-21 (5-30-08)
• Interim Guidance for Processing Form I-140 EB Immigrant Petitions And Form I-485 and H-1B Petitions under AC-21 (5-12-05)
• INS Adopts “Alien-Based” Approach to Portability (4-24-02)
• Initial Guidance for Processing H-1B Petitions as Affected by AC-21 (INS) (6-19-01)
• Traveling During H-1B Portability Period (State Department) (2-14-01)
• AC-21: INS FAQ
• New H-1B Law FAQ (AILA)
• Section-by-Section Analysis of the H-1B Cap Bill As Passed By Congress (10-3-00)
• Summary of H-1B Cap Bill As Passed By Congress (10-3-00)
• Text of the Bill To Raise the H-1B Fee to $1,000 (10-12-00)

 

ADJUSTMENT OF STATUS For H & L Visaholders

 

• INS Field Memo on Adjustment of Status for H and L Visaholders (May 2000)
• H and L Regulations on Adjustment of Status (6-1-99)

 

REPORTS AND ARTICLES

 

• Characteristics of H-1B Workers (DHS) (FY 2003)
• Characteristics of H-1B Workers (DHS) (FY 2002)
• Characteristics of H-1B Workers (DOJ) (FY 2000)
• Let Skilled Foreign Workers In – Or Else (3-3-00)
• The H-1B Straitjacket: Why Congress Should Repeal The Cap On Foreign-Born Highly-Skilled Workers (3-3-00)

 

AMERICAN COMPETITIVENESS ACT (ACWIA)

 

• ACWIA (1998) – Complete Text of Law
• ACWIA – Section-by-Section Summary of Law
• ACWIA – Highlights of the Law
• ACWIA – Senate Report
• Report of the Senate Judiciary Committee on S.1723
• ITAA Calls on Congress to Raise Cap for Temporary Workers

 

ACWIA REGULATIONS

 

• H-1B Regulations: AILA Summary of Provisions of General Applicability
• H-1B Regulations: AILA Summary Of Provisions Relating To “H-1B Dependent” Employees
• DOL Letter Re: “Single Employer” Rule (2-21-01)
• Letter From Senators Abraham and Graham In Response To DOL’s Interim H-1B Regulations (1-1-01)