H-1B Professional Visas
For more than a decade, our law firm has represented corporations, hospital systems, State governmental agencies and businesses with regards to their H-1B professional work petitions/visas. It is important when filing an H-1B petition to review background details including the proposed job duties and title, salary and prevailing wage issues, timing of start date, evidence of the employer-employee relationship, beneficiary’s educational details/degree award dates/F-1 OPT validity periods, previous visa denials and potential consular processing issues.
For H-1B cases involving third party job-site placements, it is also crucial to examine the existence and wording of end-client and/or vendor MSA/SOW/PO contracts as well as evidence of the extent of the employer’s control over the proposed H-1B Beneficiary’s work. This will help determine whether the petition will be able to overcome “Right to Control”/Neufeld Memo issues and any potential Requests for Evidence (RFEs) issued by USCIS.
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The H-1B is a temporary nonimmigrant visa which grants holder up to six years within the U.S. An individual must leave the country after six total years in H or L status. There are exceptions including those individuals who have a labor certification pending for more than 365 days, I-140 approved, or those who change their status to H-4 (they may remain for as long as their spouse is on H-1B – spouse is also subject to the 6 year maximum). Periods outside of the US may be reclaimed in Requests for an Extension.
Applicant must have experience or education (four year baccalaureate degree or equivalent) in a specialty occupation.
A U.S. sponsor is required to petition for an H-1B worker. The sponsor must comply with prevailing wage levels, agree not to displace American workers, agree not to replace a laid-off worker with an H-1B for a certain period of time, and agree not to employ the H-1B during a strike or lock-out, among other attestations.
The spouse or dependent child of an H-1B worker may accompany or follow to join the principle visa holder. These H-4 visa holders may attend school but cannot work (Unless they qualify for and obtain an EAD based on the spouse’s I-140 approval).
An H-1B visa holder may change their status to any other nonimmigrant status they are eligible for.
An H-1B visa holder may transfer employers easily under the H-1B Portability Act. They may begin working for the new employer as soon as the new H-1B Transfer petition is submitted to USCIS.
An H-1B visa holder may petition for Permanent Residency (a green card) because of the dual-intent nature of the visa. An H-1B may enter and exit the U.S. at any time, even after a Permanent Residency petition has been filed.
Roughly 85,000 new visas are available per fiscal year. These visas are normally used up in the same week the cap opens up (April 1). If an individual qualifies for an E-3 or TN visa, it may be a better decision to enter on those visas and later, if necessary, change status to H-1B.
An employee may hold more than one concurrent H-1B visas for two different employers (including part time employment).