H-1B Classification
The H-1B nonimmigrant classification enables a US employer to temporarily hire a foreign national (beneficiary) in a specialty occupation. The role must require the theoretical and practical application of highly specialized knowledge and a US bachelor’s degree or higher (or its equivalent) in a directly related specialty field.
H-1B Petitioner
As H-1B “petitioner”, a US employer seeking to sponsor a foreign national in the H-1B classification can file the H-1B petition on behalf of the beneficiary. A US employer is a person, firm, corporation, contractor, or other association or organization, that: provides the beneficiary a bona fide US job offer; maintains US legal presence, and is amenable to US service of process; and has an IRS Tax ID number.
A US agent can serve as the H-1B petitioner and file the H-1B petition on behalf of a traditionally self-employed foreign national or one who uses an agent to arrange multiple short-term employment engagements with employers. A US agent can also serve as the authorized US representative of a foreign employer. In other words, the US agent can be the beneficiary’s actual H-1B employer; the dual representative of the beneficiary and the actual H-1B employer; or a person or organization authorized by the employer to act for/in place of the employer as its agent. The US agent is responsible for explaining the terms and conditions of the employment and providing any required documentation. A US agent performing the employer function must guarantee the wages and other terms and conditions of employment by contractual agreement with the beneficiary of the petition.
In support of a H-1B petition, the H-1B petitioner must include a Labor Condition Application (LCA) certified by the US Department of labor (US DOL); a statement of the H-1B petitioner confirming that it will comply with the LCA terms for the duration of the beneficiary’s authorized period of stay; and evidence of the beneficiary’s qualifications to perform in the position that qualifies as a H-1B specialty occupation. The H-1B petitioner must submit a copy of any written contracts (or if none, a summary of oral agreement terms pursuant to which the beneficiary will be employed) between the H-1B petitioner and beneficiary.
The H-1B employer is liable for the reasonable costs of return transportation of the beneficiary to the last place of foreign residence, if the beneficiary is terminated by the H-1B employer prior to the end of the approved H-1B validity period.
H-1B Position
The bona fide job offer must be for a specialty occupation position. This means that the position offered, based on the specific job duties, must require theoretical and practical application of highly specialized knowledge; and as a minimum requirement for entry into the US occupation, attainment of a US bachelor’s degree or higher (or its equivalent) in a directly related specialty field. A position that only requires a general degree, without further specialization, would not typically constitute a specialty occupation. The position, however, may allow for a range of qualifying degree fields, if each degree field is directly related to the position duties. A logical connection must exist between the required degree (or its equivalent) and the duties of the position. The bona fide specialty occupation position must be available for the beneficiary as of the requested H-1B validity period start date as detailed in the H-1B petition, although the H-1B petitioner is not required to establish specific day-to-day assignments for the entire requested H-1B validity period.
In contrast to in-house employment with the H-1B petitioner, where the beneficiary will be assigned to fill an external position in a third party’s organization, and be part of the third party’s organizational hierarchy, in contrast to merely being a service provider to the third party, the actual work to be performed in the external position must still constitute a specialty occupation position. For such assignment (staffing to a third party), the requirements of the third party (and not the H-1B petitioner), will be most relevant for determining whether the position is a specialty occupation.
Specialty occupations can include (non-exhaustive list):
Technology & Engineering
· Software Developers
· Computer and Information Systems Managers
· Data Scientists
· Information Security Analysts
· Network & Computer Systems Administrators
· Electrical Engineers
· Mechanical Engineers
· Civil Engineers
· Industrial Engineers
Business
· Chief Executives
· General and Operations Managers
· Financial and Investment Analysts
· Financial Managers
· Investment Fund Managers
· Accountants and Auditors
· Management Analysts
· Market Research Analysts and Marketing Specialists
· Operations Research Analysts
· Marketing Managers
· Advertising and Promotions Managers
· Supply Chain Managers
· Human Resource Managers
· Compliance Managers
Science & Research
· Chemists
· Biochemists and Biophysicists
· Physicists
· Environmental Scientists
· Medical Scientists
· Statisticians
· Economists
Healthcare
· Physicians
· Surgeons
· Dentists
· Physical Therapists
· Occupational Therapists
· Pharmacists
Education
· Professors
· Teachers
· Instructional Coordinators
· Education Administrators
Architecture & Design
· Architects
· Urban and Regional Planners
· Commercial and Industrial Designers
· Interior Designers
· Graphic Designer
Legal & Services
· Lawyers (including Foreign Legal Consultants)
H-1B Beneficiary
The beneficiary must be qualified to perform in the offered H-1B specialty occupation position. In other words, the beneficiary must have:
· a US bachelor’s degree or higher (or its equivalent) in the directly related specialty field, from an accredited college/university;
· a foreign degree with a formal evaluation and determination that the foreign degree is equivalent to a US bachelor’s degree or higher (or its equivalent) in the directly related specialty field, from an accredited college/university;
· an authorization to fully practice and be immediately engaged in the specialty occupation in the state of intended employment, pursuant to an unrestricted State license, registration, or certification; or
· a formal determination and recognition of the beneficiary’s expertise in the specialty through progressively responsible positions directly related to the specialty, determining that the beneficiary has a US bachelor’s degree or higher (or its equivalent) in the directly related specialty field, based on the beneficiary’s education, specialized training, and/or progressively responsible experience.
As supported above, if the area where the beneficiary is intended to work requires a State (or local) license to fully perform the job duties, then the beneficiary must have that license before the H-1B petition can be approved, although there may be some exceptions.
A beneficiary with a controlling interest in the petitioner (i.e. over 50 percent ownership interest and/or majority voting rights) can be sponsored by the H-1B petitioner and perform duties directly related to owning and directing the petitioner’s business, as long as the beneficiary will primarily perform specialty occupation duties consistent with the terms of the H-1B petition.
H-1B Duration
The beneficiary may be approved for an initial temporary period of H-1B status for up to 3 years. The temporary period of H-1B status may be extended for up to an additional 3 years. If the beneficiary has a controlling interest in the H-1B petitioner, the initial approval period, as well as first extension, will both be limited to periods of up to 1.5 years (18 months).
The maximum amount of time the beneficiary may be approved for H-1B status is generally 6 years, although there are certain exceptions to this limitation (i.e. where the H-1B worker has achieved certain milestones in the green card process).
If the individual has reached the 6 year maximum, and does not meet an exception for extending beyond the 6 year maximum, he or she must be physically outside of the US for at least one year (except for brief visits for business or pleasure), before he or she can reapply for H-1B, assuming the individual will be able to meet the H-1B requirements anew (including being subject to the H-1B cap).
Time spent in the US in L-1 status (within the last 6 years) does count against the 6 year maximum limit for H-1B.
H-1B Amendment
After the H-1B petition is approved, if there will be a material change in the terms and conditions of the beneficiary’s H-1B employment or the beneficiary’s eligibility (as specified in the approved H-1B petition), an amended H-1B petition must be filed with USCIS prior to the material change occurring.
A material change would typically include (non-exhaustive): a substantial change in job duties; a change in working hours, such as full-time to part-time (and vice-versa); a salary reduction below the required wage; a transfer of the beneficiary to a new worksite that is not within the same metropolitan statistical area (MSA) or normal commuting distance with the prior approved worksite(s) listed in the LCA; and/or certain changes in the employer’s corporate structure (i.e. due to merger, acquisition, or spin-off), resulting in a different employing entity of the beneficiary.
H-1B Transfer
If a new H-1B employer seeks to sponsor a beneficiary who has already been working in the US in valid H-1B status for a different H-1B employer, the new H-1B employer must file a H-1B transfer petition with USCIS. In some instances, the beneficiary may be able to commence work for the new H-1B employer after the H-1B petition is filed and while it is pending, based on H-1B portability rules.
H-1B Dependents
By separate application, the beneficiary’s spouse, and unmarried children under the age of 21, may be eligible for H-4 dependent status/visas, in connection with the beneficiary’s H-1B status. The beneficiary’s spouse may also be eligible to apply for work authorization, after the H-1B beneficiary has achieved certain milestones in the green card process.
H-1B Annual Limit/Quota (Cap)
The regular supply of available new H-1B statuses/visas each fiscal year (beginning of October to the end of September of the subsequent year) is limited to 65,000 new H-1B statuses/visas (this total amount is subject to certain other deductions as well—up to 6,800 for the H-1B1 program).
For beneficiaries who hold a US Master’s degree (or higher), up to 20,000 may be exempt from this annual limit/quota.
Exemptions from the annual limit/quota also exist for beneficiaries who are petitioned for/employed by higher education institutions (or affiliated/related nonprofit entities), nonprofit research organizations, or government research organizations.
Where the beneficiary has previously been counted against the regular annual limit/quota (cap) or exempted based on an advanced degree, the beneficiary may continue to be exempt from the annual limit/quota (cap) based on the remaining H-1B time available—within the 6 year maximum—in the H-1B classification (or reaching certain milestones in the green card process).
H-1B Registration Lottery
For a non-cap exempt H-1B petitioner to be able to sponsor and employ a beneficiary who has not previously been counted against the H-1B annual limit/quota (or exempted based on a US Master’s degree or higher), the H-1B petitioner, as a H-1B registrant, will be required to register the beneficiary in an online annual registration lottery, held for a specific time period in March each year, which is facilitated by US Citizenship and Immigration Services (USCIS). The online registration process requires basic information about the H-1B registrant and each beneficiary, as well as the payment of a fee ($215 for the most recent fiscal year). In the particular fiscal year, the H-1B registrant may only submit one registration per unique beneficiary. After the registration period closes, where demand for new H-1B statuses/visas outweighs supply, USCIS—through computer-generated selection—will randomly choose registered beneficiaries according to the regular annual/limit quota (cap), as well as the advanced degree exemption. Registrations are counted based on the number of unique beneficiaries who are registered, as each unique beneficiary is only counted once towards the randomized selection of registrations—even if other H-1B registrants submitted registrations on behalf of the particular beneficiary. For the most recent fiscal year, USCIS selected approximately 35.3 percent of the registered beneficiaries (prior recent fiscal years: 29 percent; and 24.8 percent).
For a selected beneficiary, the H-1B petitioner may then proceed to file a H-1B Cap petition on behalf of the particular beneficiary. If the petition is approved by USCIS, the earliest possible start date of H-1B status would be October 1 of the same year.
For a beneficiary who has not been selected, the H-1B petitioner will not be able to proceed to file a H-1B Cap petition on behalf of the particular beneficiary, although alternative options may be considered (which are likely limited).
H-1B Cap-Gap Extension (F-1 OPT/STEM OPT)
Where certain requirements are met, including that the H-1B Cap petition was timely filed with USCIS and requested a change of status from F-1 to H-1B on a date between October 1 and April 1 of the following year, for a beneficiary who is working in the US pursuant to valid F-1 Post-Completion Optional Practical Training (OPT) or F-1 STEM OPT, and such employment authorization happens to be expiring after the petition is filed, and prior to the earlier of April 1 of the following year or the validity period start date of the approved H-1B petition, then the beneficiary may be eligible for an automatic extension of work authorization to fill the employment authorization gap to enable the individual to continue working—up to the earlier of April 1 of the following year or the validity period start date of the approved H-1B petition. The cap-gap extension of status, however, will automatically terminate if the H-1B Cap petition and/or change of status request is not ultimately approved by USCIS (including where the H-1B Cap petition is rejected, withdrawn, denied, or revoked).
H-1B Petition Process (General)
1. If not cap-exempt, the H-1B petitioner, as H-1B registrant, registers the beneficiary in the H-1B registration lottery in March, and if the registration selection results are favorable, the beneficiary is selected and the H-1B registrant is notified of the same (i.e. end of March);
2. The H-1B petitioner applies for and receives a certified LCA from the US DOL;
3. The H-1B petitioner files a H-1B petition with USCIS, with the required documentation, within the required filing period;
4. If the H-1B petition is approved, the beneficiary in the US will be able to start on the approved H-1B validity period start date based on the issued H-1B approval notice with an attached paper I-94 from USCIS (i.e. based on an approved change of status or extension request); or for a beneficiary outside the US, the beneficiary will have to utilize the issued H-1B petition approval notice to consular process for a H-1B visa (if a visa is required), and then travel to the US, and be admitted to the US at the US Port of Entry in H-1B status, where an electronic I-94 is then issued by US Customs and Border Protection (US CBP).
H-1B Petition Processing Time
The processing time of a properly filed H-1B petition will depend on the type of H-1B petition (i.e. change of status, consular processing, extension), and the assigned USCIS Service Center. Generally speaking, regular processing will be around 6 months, although the processing time is subject to fluctuate. For an additional fee, premium processing is available for H-1B petitions, which may allow a decision on the H-1B petition within 15 business days. Where a H-1B petition is ultimately approved, USCIS will issue a formal H-1B approval notice.
H-1B Fees:
The required H-1B petition filing fees will depend on the type of H-1B petition, the type and size of the H-1B employer, as well as whether the petitioner already employs a large percentage of H-1B/L-1A/L-1B employees. The estimated cost range is from $460 to $7,380, where legal and administrative fees for attorney assistance would be an additional amount. The estimated cost range does not include the cost of optional premium processing ($2,805) for a particular H-1B petition; H-4 dependent applications; filing a response to a request for evidence (RFE) or notice of intent to deny (NOID); or filing a motion or appeal, each of which would entail additional costs (as applicable).
H-1B RFE or NOID
Post-filing, for some H-1B petitions, USCIS may issue a RFE or a NOID, which would require a formal response (simple, moderate, or complex). The issuance of a RFE or NOID does impact the processing time of the H-1B petition (regular and premium processing), and depending on the issues raised by USCIS (simple, moderate, or complex), could pose a substantial challenge for ultimate approval of the H-1B petition. Timely consulting with an experienced immigration attorney is essential for properly preparing and filing the H-1B petition, as well as making the H-1B petition as strong as possible to reduce the risk of a RFE or NOID. Although there is not a USCIS fee required to prepare and file a formal response to the RFE or NOID (as applicable), an additional legal and administrative fee would typically be necessary for attorney assistance.
H-1B Denial
If the H-1B petition is ultimately denied by USCIS, depending on the reasons for the denial, it may be possible to file a motion or an appeal of the denial decision. An appeal entails a request for a different authority, USCIS Administrative Appeals Office (AAO), to review the denial decision of the H-1B petition. A motion to reopen requests the USCIS office that denied the H-1B petition to review its denial decision, based on new facts—those not previously submitted in the proceeding—as supported by affidavits or other documentary evidence. A motion to reconsider requests the USCIS office that denied the H-1B petition to review its denial decision, based on an incorrect application of law or policy.
The appeal or motion must be submitted with the appropriate form, filing fee, and documentation within the required time period. The AAO works to process appeals (and motions) within 180 days, and USCIS service centers work to process motions within 90 days, although these processing times are not guaranteed.
The filing of an appeal or motion does not delay the H-1B denial decision from going into effect (or extend the previously set departure date). Further, it is not certain that the appeal or motion will ultimately be successful, such as to reverse the unfavorable decision on the H-1B petition.
Timely consulting with an experienced immigration attorney is essential for determining the best strategy for a H-1B denial decision based on the circumstances.
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If you would like our assistance with a H-1B petition, RFE, NOID, motion, or appeal, please contact our office for a private and confidential consultation.