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H-1B Temporary Worker

Q: What is an H-1B? How can I 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 Step by Step H-1B Processing Flowchart, 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 a 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 a 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 cap-subject H-1B visas are available each fiscal year?

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

Q: I obtained a master's degree from a Canadian university. Can I use the additional 20,000 H-1B visas for advanced-degreed professionals?

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

Q: I obtained a master's 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-degreed 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-degreed professionals.

Q: When can U.S. employers file new H-1B petitions under the FY 2018 cap?

A: The earliest date for U.S. employers to file new H-1B petitions under the FY 2018 cap is April 1, 2017.

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 have 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 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 the Labor Condition Application (LCA)?

A: An 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 the 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 employers?

A: Yes, you may change H-1B employers and at the same time keep your 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 employers. 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 on your behalf. You do not need to wait until 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 an immigrant petition. Can I change status to H-1B?

A: Yes, you may change status to H-1B even after you have filed an 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 by 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 e-mail it with your resume to evaluate@niwus.com for a free evaluation. The H- 1B Evaluation Questionnaire can be obtained from Here.

Q: How does the H-1B lottery work?

A: Each year, there is a cap or limit on the number of H-1B filings accepted by the USCIS. USCIS accepts cases for a minimum of five business days after the H-1B cap season begins. Clients can submit H-1B petitions during this time. If USCIS receives more than 65,000 H-1B Regular Cap and 20,000 U.S. Master's Cap petitions, then the USCIS will stop accepting filings. All H-1B cap petitions received during the five business days will be entered into a random computerized lottery to select the cases for processing. If by the end of the 5 business days the USCIS has received less than the cap limit, then USCIS will continue to accept H-1B cap cases until the cap is reached. It will then conduct a lottery for all cases received on the day the cap is reached.

Q: What do I need to know when filing H-1B petition for the lottery?

A: In general, filing an H-1B in a timely manner is crucial to having any chance at obtaining H-1B status. The USCIS consider an H-1B case to be filed when it arrives at the appropriate USCIS filing location. The case must also be properly filed for consideration, meaning it must contain all required forms, with all necessary signatures, and the required filing fees. Cases are considered accepted on the date that USCIS receives a properly filed petition with the correct fee and does not consider the date that the petition is postmarked.

Q: Will premium processing give me a better chance of selection in the H-1B lottery?

A: No. USCIS does not consider premium processing during the lottery. The probability of selection is the same for both regular and premium processing cases.

Q: If there is a lottery for cases filed during the first 5 business days, when will I know if my H-1B petition was selected or rejected?

A: USCIS usually begins issuing Receipt Notices for all selected petitions within the week after the lottery is conducted. Given the high volume of cases in most lotteries, it may take 3-4 weeks for all Receipt Notices to be delivered. From our experience, if there is a lottery after 5 business days, clients will receive Receipt Notices around late April. After all receipt notices are processed, USCIS will reutrn the packages that were not selected in the lottery. Petitioners can expect to receive the rejection packages around May. Our firm will e-mail clients a scanned copy of the Receipt Notice or Rejection Notice as soon as we receive it.

Q: My case was selected in the lottery, and I requested premium processing. When will I receive a decision?

A: USCIS announces when premium processing begins. Once premium processing starts, USCIS will approve, deny, or issue Request for Evidence within 15 calendar days. USCIS may issue an update after the lottery is completed. Our firm will let clients known as soon as we receive more information.

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