An H-1B petition is a non-immigrant petition for a specialty occupation which requires that the job offered be a professional position, i.e. one that requires a minimum of a Bachelor’s Degree and further that the prospective employee has a minimum of a bachelor’s degree or its equivalent in a field of study related to the occupation. As a general rule, an individual can be granted a total of six (6) years in H-1B status, which is granted in increments of no more than three (3) years, and an individual in H status must either file for Permanent Residence prior to the 5th year in H, and/or extend the 6 year term, or leave the U.S. when the six (6) year term ends. Dependents of the H-1 will process as H-4 dependents. If granted, H-4 dependents can enter the U.S./remain/live here but they cannot work.
H-1B status is specific as to employer, location, job title, and job duties. If any of these variables change, the employer must file an amendment to the application.
- Premium Processing is available; Decision in fifteen (15) days from date of filing
- Processing Time required prior to filing: up to six (6) weeks
- Work Authorization is effective on approval; Initial approval valid for three (3) years; Renewable for up to six (6) years in one (1) year increments.
- NOTE: PERMANENT RESIDENCE MUST STILL BE FILED/OBTAINED IN ORDER TO REMAIN IN THE U.S. BEYOND THE SIX (6) YEAR TERM.
An H-1B petition must be filed for all intended employees even if they currently hold, or have previously held, H-1B status. To initiate the process, the employer must authorize Dornbaum & Peregoy (D&P) to process the H-1. Once D&P receives that authorization, D&P sends (electronically) Questionnaires to the employer and employee for completion and return to D&P, to provide the information necessary to initiate the process.
An individual who has not currently held H-1B status will file a petition for either Consular Processing (generally for individuals currently outside of the U.S.) or a Change of Status (this would be for individuals currently in the U.S. holding F-1, L-1, H-4, TN (or another eligible nonimmigrant classification). These individuals are subject to the annual H-1B cap (Currently, only 58,200 H-1Bs are available per fiscal year, with an additional 20,000 available for individuals who have obtained a Master’s Degree (or higher) from a U.S. institution). Please be aware that the H-1B cap has been reached in each of the last several years, but the last date for filing has varied. Accordingly, new H-1s or changes of status to H-1 may not be available until the next fiscal year which begins in October. The category “opens” on April 1, which is the earliest date one can file for the H-1, but the effective date is still October 1 of that year even if the approval is received before then. Using “regular” processing procedures (non expedited), once filed, it takes approximately two to four (2-4) months for these petitions to be adjudicated at USCIS. In the alternative, an employer may apply for an expedited decision, via the Premium Processing procedure, which takes fifteen (15) days from date of filing, at a cost of $1225 in additional filing fees (to USCIS) assuming no additional Request for Evidence is issued by USCIS.
If an individual currently holds H-1B status, the employer must also file an I-129 Petition, but these applications are not subject to the H-1 cap (because they were previously “counted” when the original H was issued) and they are entitled to commence H-1B employment upon the filing of the H-1B petition. It is our strong recommendation, however, that employment does not commence until we have a Filing Fee Receipt from USCIS. It takes approximately two (2) weeks for USCIS to issue a receipt for cases filed using regular processing procedures. If the employer chooses to utilize Premium Processing (described above, at an additional fee to USCIS of $1225), USCIS generally issues a receipt within 1 week. An employer must consider these time frames when determining a reasonable start date for an individual applying for H status.
Additionally, current employees are required to apply for extensions of their H-1B status in order to maintain/extend the status granted under the original H-1, for the full 6 years to which they are entitled. This can be done up to six (6) months (and as late as the day before) prior to the current H-1B expiration date. Once a petition is filed, the individual is granted an automatic 240 day extension of status beyond the expiration date, while the application is being adjudicated, which allows him/her to continue to work in the U.S. during the adjudication period. However, the individual will encounter difficulties in renewing his/her driver’s license, and in obtaining a visa to travel or may be unable to travel at all, if his/her case has not been adjudicated before the expiration of the current H approval.
REQUIRED STEPS TO PROCESS AN H-1:
D&P’s Employer and Employee Questionnaires must be completed. Further, the prospective employee must forward the following documents:
- Degree (and transcripts if the area of study is not indicated on the degree;
- Education Evaluation if one has been previously obtained;
- Biographical page of passport for each individual processing H-1 (or H-4 dependent) status;
- Marriage Certificate, if applicable;
- Birth Certificate of any child processing as an H-4;
- Form I-94 for each individual being petitioned for;
- Visa (if any) for each individual;
- All prior Forms I-797, Approval Notice, of prior stay in H-1/L-1/H-4 status;
- Most recent pay stub (if in a work authorized status in the United States);
- If applicable, Form I-20 and Employment Authorization Cards;
- I-797 Receipt or Approval Notice for (I-130, I-140, or I-485) filings, if an immigrant visa petition or application for legal permanent residence has been filed; and
- If applicable, Forms IAP 66 of DS-2019, evidencing any stay in the U.S. in J-1 status, together with proof that the J-1 programs either did not contain a two year foreign residency requirement , or that the requirement has been fulfilled, or that a waiver has been granted by USCIS.
Upon receipt of the above, D&P will review the paperwork submitted, and assuming it is complete/in order, send a request for a Prevailing Wage Determination. The salary offered to the prospective employee must be 100% of the Prevailing Wage. It is preferable to utilize the Department of Labor’s Salary Survey (SESA); however, if the salary offered is less than the DOL Wage Scale, an alternative salary survey can be utilized in some cases, provided it meets the DOL’s sufficiency requirements. The amount of time it takes to obtain a SESA is currently four (4) weeks.
If the prospective employee’s educational credentials were obtained from a foreign institution and the individual has not previously obtained one, D&P will request and obtain an educational evaluation.
Upon receipt of the Prevailing Wage Determination, Dornbaum & Peregoy will file Form 9035, Labor Condition Application:
Labor Condition Application Form 9035 is filed with the Department of Labor upon return of the Prevailing Wage Determination
Immediately after filing, D&P will email the petitioning company a copy of the LCA for posting at two (2) conspicuous locations at the actual place (work site) where the H-1B worker will be employed;
- Petitioner must confirm posting of the document within 24 hours of receipt of our email as posting must occur prior to the LCA being certified;
- Once the LCA is certified by the Department of Labor (seven (7) business days) D& P prepares the I-129 packet which includes the LCA materials;
- Return two (2) copies of the signed form to D&P by some form of express mail;
- Confirmation of posting, both signed originals should be forwarded to D&P (Please note that all the other H-1 materials should be immediately returned as the ten (10) day period does not have to expire prior to the filing);
- Completion of the Public Inspection Folder: D&P prepares the Public Inspection Folder on behalf of the petitioner upon approval of the H-1.
D&P will prepare the I-129 petition to be forwarded to the employer for signature. This package includes::
- Form I-129, H Supplement and H-1B Data and Collection Form, which must be signed in four (4) places;
- Form G-28, Notice of Entry of Appearance which notifies USCIS that an attorney from D&P is the attorney of record;
- Support Letter, which is printed on company stationary and describes the company, the position being offered and the alien’s credentials; and
- Letter certifying that the employer has paid the $1500 H-1B Filing Fee and will not seek reimbursement of that fee from the employee (this letter is not included if this is a second or subsequent extension petition filed by the same employer on an individual’s behalf in which the application is exempt from that fee).
Additionally, if the individual has any dependents (spouse or child not maintaining an independent status such as H-1, F-1 or TN) the individual is required to file for H-4 status on their behalf. This is done on Form I-539 if the dependents are currently in the U.S. This petition is filed concurrently with the H-1B petition. The I-539 is generally signed by the individual’s dependent.
As soon as the employer and the individual return the signed materials, D&P will file the H-1B petition with USCIS.
Upon receipt of the form I-797 containing the filing fee receipt, the employer can complete the I-9 and the employee may start work, if the person holds H-1 status for a previous employer and is now “porting” to a new H-1 employer even if the case is not yet approved.
If the employer is not eligible to ‘port” they must await a final decision.
Only upon approval of a change of status application can the individual commence employment.
Upon approval of the application, D&P will forward the original approval to the individual and a copy to the employer. If the individual is overseas additional material as to consular processing will be provided.
Additional General Information Specialty Workers
This visa category is one of the most common work authorized categories. It applies to people who wish to perform services in a specialty occupation (i.e., professional); services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project; or services as a fashion model of distinguished merit or ability.
|Visa Category||General Requirements||Labor Condition Application Required?|
|H-1B Specialty Occupations||The job must meet one of the following criteria to qualify as a specialty occupation:
For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:
|Yes. The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker. See the links to the Department of Labor’s (DOL) Office of Foreign Labor Certification and USCIS forms to the right. For more information see the “Information for Employers & Employees” below.|
DOD Researcher and Development Project Worker
|The job must meet both of the following criteria to qualify as a DOD cooperative research and development project: The cooperative research and development project or a co-production project is provided for under a government-to-government agreement administered by the U.S. Department of Defense A bachelor’s or higher degree, or its equivalent is required to perform duties. To be eligible for this visa category you must must meet one of the following criteria: Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation Hold an unrestricted State license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.**||No.|
The position/services must require a fashion model of prominence.
To be eligible for this visa category you must be a fashion model of distinguished merit and ability.
|Yes. The prospective employer must file an approved LCA with the Form I-129. See the links to the Department of Labor’s Office of Foreign Labor Certification and USCIS forms below.|
*For more information, see 8 CFR §214.2(h)(4)(iii)(A).
**For more information see 8 CFR §214.2(h)(4)(iii)(C).
Step 1: (only required for specialty occupation and fashion model petitions): Employer Submits LCA to DOL for certification. The employer must apply for and receive DOL certification of an LCA. For further information regarding LCA requirements and DOL’s, see the “Foreign Labor Certification, Department of Labor” link below.
Step 2: Employer Submits Completed Form I-129 to USCIS. The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center. Please see the “I-129 Direct Filing Chart” link below. The DOL-certified LCA must be submitted with the Form I-129 (only for specialty occupation and fashion models). See the instructions to the Form I-129 for additional filing requirements.
Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.
Labor Condition Application (LCA)
Prospective specialty occupation and distinguished fashion model employers must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:
- The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
- The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
Period of Stay
As an H-1B nonimmigrant, you may be admitted for a period of up to three years. The time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).
The employer will be liable for the reasonable costs of the employees return transportation if the employer terminates the employee before the end of the period of authorized stay. The employer is not responsible for the costs of return transportation if the employee voluntarily resigns their position. Employers must also contact the Service Center that approved the petition in writing as soon as the employment relationship is terminated.
The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.
For further information about the numerical cap, see the “Fiscal Year (FY) 2011 H-1B Cap Season” below.
Family of H-1B Visa Holders
Spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.
- Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions
- Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)
- Frequently Asked Questions about Part 6 of Form I-129, Petition for a Nonimmigrant Worker
- Visas: H-1B
- USCIS Announces Proposed H-1B Electronic Registration System to Reduce Costs for U.S. Businesses
- USCIS to Accept H-1B Petitions for Fiscal Year 2014 on April 1, 2013
- Employment-Based Forms
- I-129, Petition for a Nonimmigrant Worker
- Direct Filing Addresses for Form I-129, Petition for Nonimmigrant Worker
Other USCIS Links
- TITLE 8 CODE OF FEDERAL REGULATIONS (8 CFR)
- Health Care Worker Certification
- Conrad 30 Waiver Program
- VIBE Program
- Numerical Limitation Exemption for H Nonimmigrants Employed in the CNMI and Guam (51 KB PDF)