H-1B Professional Visa

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Temporary Employment: H-1B Visa Classification

The H-1B classification applies to job candidates in a "specialty occupation." The USCIS (U.S. Citizenship and Immigration Services, part of the Department of Homeland Security) considers specialty occupations to be those requiring the theoretical and practical application of a body of highly specialized knowledge. Typically this will entail completion of a specific course of higher education. For certain individuals with specialized skills and considerable work experience, equivalency evaluations can be obtained to meet the educational requirements.

Authorization for H-1B employment is specific to the petitioning company. Additionally, the authorization extends only to the specific occupation named in the H-1B petition. The status cannot be transferred between employers without the new company first filing a petition with USCIS.

Before filing an H-1B petition, the company must file a Labor Condition Application (LCA) with the Department of Labor. The LCA defines the employer's obligations to ensure that the foreign worker does not adversely affect the wages or working conditions of United States workers. Employers with a large contingent of H-1B workers may be considered an H-1B dependent company and there are additional obligations.

Upon approval of the LCA, the H-1B petition is filed with the USCIS.  At the time of filing, employers are responsible for paying the substantial filing fees for the H-1B classification, including a one time Fraud Detection and Prevention fee ($500), and two time H-1B Education and Training Fee ($1,500).  Certain educational institutions and nonprofit or government research organizations are exempt from the Education and Training Fee, and employers with less than 26 full-time employees pay one-half of the Education and Training Fee ($750).

Candidates previously issued an H-1B visa or otherwise provided H-1B status and who have lawfully worked in the United States, may be eligible to take advantage of a "portability" provision in the law. "Portability" makes it faster to transition between H-1B employers. The portability provision permits some H-1B holders to begin their new employment with the new company upon the filing of the new H-1B petition. Candidates and companies should be sure that portability applies in their situation, and candidates are advised to continue with their present employment until portability attaches. Candidates not already holding lawful H-1B status must generally wait for USCIS approval before beginning work.

New H-1B visas are subject to annual limits per fiscal year. Currently the annual limit is 65,000 per year with an additional 20,000 available to H-1B applicants holding U.S. advanced degrees. After the limit is reached, a candidate must wait until at least the beginning of the USCIS' fiscal year (October 1) to obtain H-1B status and start work.  Due to the cap, employers often need to accelerate their H-1B process, to file as early as allowed (April 1) for the next fiscal year.  Certain educational institutions and nonprofit or government research organizations are exempt from the cap.  Special cap number allocations are also available to H-1B nonimmigrants who are nationals of Chile or Singapore pursuant to special Free Trade Agreements, although the H-1B duration is limited to only one year (renewable).

H-1B petitions may be approved for up to three years, and can be extended for up to a total of 6 years maximum stay, regardless of the number of employers. Ordinarily, after 6 years of H-1B status, the candidate must usually reside outside of the U.S. for a full year before new eligibility arises. However, in certain limited circumstances, H-1B employees who have started a green-card process may be eligible to extend their status beyond six years, in one-year increments. The employee may be eligible for extension beyond six years if either an application for labor certification or an immigrant visa petition was filed on his or her behalf at least 365 days prior to reaching the 6-year H-1B limit. NOTE: A labor certification is different from a labor condition application ("LCA"); it is often a prerequisite for an I-140 immigrant petition filed in connection with a green card. 

Spouses and children of H-1B workers are eligible for dependent visas in the H-4 classification. H-4 spouses and children may not work.

APRIL 1^st FILINGS

The earliest an H-1B petition may be filed is six (6) months before the intended start date. As the only new visa numbers now available are for FY 2010 (October 1, 2009 to September 30, 2010), companies throughout the country will be filing new H-1B petitions en masse on April 1, 2009. To avoid a potential gap in employment, hiring organizations should be prepared to file an H-1B petition on April 1, 2009.

Previously, an F-1 student who was the beneficiary of an approved H-1B petition, but whose period of OPT expired before the H- 1B employment start date, had a gap in authorized stay and employment between the end of his/her F-1 status and the beginning of the H-1B employment period.

In April 2008, the USCIS implemented a new rule that extends the authorized period of stay, as well as OPT work authorization, of any F-1 student who is the beneficiary of an H-1B petition that has been approved by, or remains pending with, the USCIS.

CAP-EXEMPT PETITIONS

Some H-1B petitions are not subject to the annual H-1B cap because:
1. the employer is exempt from the numerical quota; or
2. the employee has already been counted against the cap in the past.

Cap-exempt organizations
An H-1B cap exemption exists for petitions that are filed for new employment at:
1. colleges / universities or affiliated non-profit entities;
2. non-profit research organizations; and
3. government research organizations.

Determining who been counted against the cap in the past

If an individual held H-1B status at any time during the previous six (6) years, s/he is not subject to the cap again. For example:
If a graduating student worked in H-1B status then changed to F-1 status to attend HBS in September 2007, s/he is eligible to resume H-1B status with any employer any time after graduation.

Jacobson & Han LLP, Los Angeles Work Visa, Immigration Lawyer, Los Angeles Deportation Lawyer, Los Angeles Visa Lawyer. Call our immigration attorneys at (213) 620-0222 for a telephonic or in-person immigration consultation. CONSULTATION@GREENCARD4YOU.COM

Even though we are located in Los Angeles, California, we can process most US (USA) immigration petitions regardless of where you are located or where you plan to reside in the USA.      Our offices are located in Los Angeles & Encino, Los Angeles County, close to the following cities and more: Adams , Agoura Hills, Alhambra, Aliso Viejo, Anaheim, Arcadia, Arleta , Artesia, Atwater Village , Avalon, Azusa, Balboa, Baldwin Park, Barnes City , Bel Air , Bell, Bell Gardens, Bellflower, Benedict Canyon, Beverly Glen , Beverly Hills, Boyle Heights, Bradbury, Brea, Brentwood, Buena Park, Burbank, Calabasas, Canoga Park, Carson, Cerritos, Chatsworth, Chinatown , Claremont, Coldwater Canyon, Commerce, Compton, Corona Del Mar , Costa Mesa, Coto de Caza, Covina, Crenshaw , Cudahy, Culver City, Cypress, Dana Point, Diamond Bar, Dove Canyon, Downey, Downtown Los Angeles , Duarte, Eagle Rock , Echo Park , El Monte, El Segundo, El Sereno , Encino , Expo Park , Foothill Ranch, Fountain Valley, Fullerton, Garden Grove, Gardena, Glassell Park , Glendale, Glendora, Granada Hills , Green Meadows , Hancock Park , Harbor City , Hawaiian Gardens, Hawthorne, Hermosa Beach, Hidden Hills, Highland Park , Hollywood , Huntington Beach, Huntington Park, Industry, Inglewood, Irvine, Irwindale, Koreatown , La Brea , La Canada Flintridge, La Habra, La Habra Heights, La Mirada, La Palma, La Puente, La Verne, Ladera Ranch, Laguna Beach, Laguna Hills, Laguna Niguel, Laguna Woods, Lake Balboa , Lake Forest, Lakeview Terrace , Lakewood, Lancaster, Lawndale, Lincoln Heights , Little Tokyo , Lomita, Long Beach, Los Alamitos, Los Angeles, Los Feliz, Lynwood, Malibu, Manhattan Beach, Mar Vista , Maywood, Miracle Mile, Mission Hills, Mission Viejo, Monarch Beach, Monrovia, Montebello, Monterey Park, Mount Olympus , Newport Beach, Newport Coast, North Hills , North Hollywood , North Shoestring , Northridge , Norwalk, Orange, Pacific Palisades , Pacoima , Palmdale, Palms, Palos Verdes Estates, Panorama City , Paramount, Park La Brea , Pasadena, Pico Rivera, Placentia, Playa del Rey , Pomona, Porter Ranch , Portola Hills, Rancho Palos Verdes, Rancho Park , Rancho Santa Margarita, Redondo Beach, Reseda , Rolling Hills, Rolling Hills Estates, Rosemead, San Clemente, San Dimas, San Fernando, San Gabriel, San Juan Capistrano, San Marino, San Pedro , Santa Ana, Santa Clarita, Santa Fe Springs, Santa Monica, Seal Beach, Sepulveda , Sherman Oaks , Sierra Madre, Signal Hill, Silverlake, South El Monte, South Gate, South Park , South Pasadena, South Vermont , Stanton, Studio City , Sun Valley, Sunland, Sylmar , Talega, Tarzana , Temple City, Thousand Oaks, Toluca Lake , Torrance, Trabuco Canyon, Tujunga , Tustin, Valley Glen , Valley Village , Van Nuys , Venice, Vermont Square , Vernon, Villa Park, Walnut, Warner Center , Watts , West Adams , West Covina, West Hills, West Hollywood, West Los Angeles , Westchester, Westlake, Westlake Village, Westminster, Westwood , Whittier, Wilmington , Winnetka , Woodland Hills and Yorba Linda.

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