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                                                   H-1b Work Visa

Q: What is an H-1B? How to apply for an H-1B?

A: The H-1B is a nonimmigrant classification granted to a foreign worker who is employed temporarily in a
specialty occupation, or a fashion model of distinguished merit and ability. For a S tep by S tep H-1B
P rocessing F lowchart, please click Here.

Q: What is a specialty occupation?

A: A specialty occupation requires theoretical and practical application of a body of specialized knowledge
and at least a bachelor’s degree or its equivalent for entry into the occupation in the U.S. Examples of
specialty occupation include, but are not limited to, architecture, engineering, mathematics, physical
sciences, social sciences, medicine and health, education, business specialties, accounting, law,
theology, and the arts, etc.

Q: How does the USCIS determine whether a job is a “specialty occupation” for H-1B purposes?

A: When determining whether a specific position is a “specialty occupation”, the USCIS will look into the
job title, the job duties to be performed by the foreign worker, and the complexity of the business, etc. For
more information regarding the standards to determine specialty occupation, please read our special
section on Standards to Determine Specialty Occupation.

Q: How does the USCIS determine whether a baccalaureate degree is the minimum
requirement for a specific occupation?

A: It is not enough that an employer requires bachelor’s degree for a specific position. Pertinent laws set
some objective standards for determining whether a specific occupation requires a bachelor’s degree for
entry into the occupation. For more information regarding the standards to determine the requirement of
bachelor’s degree, please read our special section on Standards to Determine Specialty Occupation.

Q: How do I know whether my job is a “specialty occupation”?

A: While some occupations are clearly “specialty occupations” as defined by laws and regulations, others
are not so clear and the USCIS will make a decision on a case-by-case basis. For some professions such
as computer programmer, general manager, librarian, consultant, designer, etc., determination of
“specialty occupation” is an extremely complicated process and many factors should be considered. We
suggest that H-1B petitioners or beneficiaries consult with an experienced immigration attorney regarding
their specific cases.

Q: How many new H-1B visas are available for the 2010 fiscal year?

A: The new H-1B visas available for FY 2010 are 65,000. In addition, 20,000 foreign workers who
obtained advanced degree in the U.S. are exempted from the 65,000 cap.

Q: I obtained a Masters Degree from a Canadian university, can I use the additional 20,000 H-1B
visas for advanced degree professionals?

A: No. The additional 20,000 H-1B visas are only granted to foreign workers who obtained advanced
degree in the U.S.

Q: I obtained a Masters Degree from a U.S. university, but my graduate school major was not
related to the job offer. My employer will file an H-1B petition based on my bachelor's Degree
major. Can I use the additional 20,000 H-1B visas for advanced degree professionals?

A: Yes. As long as you have obtained an advanced degree in the U.S., you can use the additional 20,000
H-1B visas for advanced degree professionals.

Q: When can U.S. employers file new H-1B petitions under the 2010 FY cap?

A: The earliest date for U.S. employers to file new H-1B petitions under the 2010 FY cap is April 1, 2009.

Q: I am currently in H-1B status working in a company, am I subject to the annual cap if I change
employment and my new employer files an H-1B petition in my behalf?

A: No, current H-1B workers who have used the H-1B quota are not subject to the annual cap.

Q: I was in H-1B status working in a company for a few months 3 years ago, and then I changed
my status from H-1B to F-1 student. Now I found a job and my employer is willing to file H-1B for
me, am I subject to the annual cap?

A: No, a foreign worker is not subject to the annual cap if he/she used the H-1B quota in the past 6 years.

Q: Who can file H-1B petition for a foreign worker?

A: H-1B petition must be filed by a U.S. employer. The U.S. branch or subsidiary of a foreign company is
considered as a “U.S. employer” for H-1B purposes if its U.S. entity meets the following requirements: 1) it
engages a person to work within the U.S.; 2) it has the authority to hire, pay, fire, and supervise
employees; and 3) it has an IRS Tax ID Number, also known as Employer ID Number (EIN).

Q: What is Labor Condition Application (LCA)?

A: H-1B petitioning employer is required to file a Labor Condition Application (LCA) with the Department of
Labor (DOL) attesting to a number of items, including payment of prevailing wages for the position, and
the working conditions offered. The LCA must be certified by DOL before the H-1B petition is filed with
USCIS.

Q: How long can a foreign worker be in H-1B status?

A: Under current law, a foreign worker can be in H-1B status for a maximum period of six (6) years at a
time. After being on H-1B for six years, the foreign worker must remain outside the United States for at
least one year before another H-1B petition can be approved. There are, however, a few exceptions to
the six-year limit, which allow a foreign worker to extend their H-1B status beyond six years.

Q: Who can extend H-1B status beyond the six-year maximum period?

A: A foreign worker can obtain an extension of H-1B status beyond the 6-year maximum period if he or
she meets one of the following conditions:

1.        365 days or more have passed since the filing of a Labor Certification (Form ETA-9089), or an
employment-based immigrant petition (Form I-140) if Labor Certification is not required; or
2.        An employment-based immigrant petition (Form I-140) has been approved but due to the
retrogression of priority date, the foreign worker is unable to obtain green card.

Q: How can I extend H-1B status for one (1) year at a time beyond the six-year maximum period?

A: You will be able to extend H-1B status in one-year increments beyond the six-year limit if your Labor
Certification application (Form ETA-9089) or your employment-based immigrant petition (Form I-140) has
been pending for 365 days or more. Therefore, to be eligible for the one-year extension at a time, a
Labor Certification application or I-140 petition must be filed before the H-1B reaches the 6th year.

Q: How can I extend H-1B status for three (3) years at a time beyond the six-year maximum
period?

A: You will be eligible to extend H-1B status in three-year increments beyond the six-year limit if your I-140
petition has been approved but you are unable to obtain green card due to the retrogression of priority
date.

Q: Can an H-1B employee work for more than one employer?

A: Yes, H-1B workers may work for more than one U.S. employer, but each employer involved must file an
H-1B petition and the petition must be approved.

Q: Can I change H-1B employer?

A: Yes, you may change H-1B employers and at the same time keep you H-1B status, but the new H-1B
employer must file a new H-1B petition for you properly before you begin working for the new employer.

Q: I am currently in H-1B status and will change employer. When can I work for the new
employer?

A: According to the H-1B portability rule, you can start to work for the new employer after your new
employer properly files the H-1B petition in your behalf. You do not need to wait till the new H-1B approval
to change your employment. For more information about H-1B portability, please read our special section
on H-1B Portability Issues Related to Change of Employer.

Q: What is H-1B visa’s “dual intent”?

A: Unlike other non-immigrant visas such as F and J that do not allow immigrant intent, H-1B visa has dual
intent, which among other things, allows filing of immigrant applications without affecting their non-
immigrant status.

Q: I am in F-1 status and have filed immigrant petition, can I change status to H-1B?

A: Yes, you may change status to H-1B even after you filed immigrant petition. Although H-1B is a non-
immigrant visa, it allows immigrant intent and an H-1B petition cannot be denied on the immigrant intent
basis.

Q: Must I work at all times to keep my H-1B status?

A: As long as the employer/employee relationship exists in compliance with the H-1B requirements, you
are in valid status. Just like other workers, you may be on vacation, sick/maternity/paternity leave, on
strike, or otherwise inactive without affecting your status.

Q: Is a part-time worker eligible for H-1B?

A: Yes, a foreign H-1B worker can work part-time, but the work hours must be specified in the H-1B
petition.

Q: How are H-1B cases handled in your law firm?

A: H-1B cases, like other types of cases, are professionally handled by an experienced attorney in our law
firm. At each step of the process, employers and beneficiaries will be contacted and advised by an
experienced attorney, NOT a paralegal, law clerk, or legal assistant. For more details, please see the
Step by Step H-1B Processing Flowchart.

Q: My employer plans to file an H-1B petition for me, but we do not know if I am qualified. How
can you help us evaluate the chance of success?

A: If you are interested in filing H-1B and want to know your qualifications, please complete a brief H-1B
Evaluation Questionnaire and email it with your resume to h1b@niwus.com for a fee evaluation. The H-
1B Evaluation Questionnaire can be obtained from Here.