Common H1B Visa Questions
Do I qualify for an H1B Visa?
While it’s much easier to answer this for sure after speaking with you personally, there are a few general requirements that must be met. First of all, there MUST be a job offer in place from a United States employer, and it must require, at a minimum, a bachelor’s degree or equivalent. The employee’s degree should be applicable to the occupation of the job being offered and the wage being offered must meet the minimum prevailing wage for the position.
I’ve heard that an H1B visa job must be a “specialty occupation.” What is meant by the term “specialty occupation”?
As defined by the H1B regulations, a “specialty occupation” is one that requires “theoretical and practical application of a body of highly specialized knowlege to perform the occupation”. In order for an H1B visa job offer to qualify as a “specialty occupation, it must meet ONE of the following items:
- A bachelor’s degree or higher or the equivalent to a bachelor’s degree (see below for how to determine equivalency) is normally the minimum requirement for entry into the position;
- The bachelor’s degree or higher requirement is common to the industry related to the employment in parallel positions among similar organizations or, in the alternative, the employer may show that its particular position is so complex or unique that it can only be performed by an individual with a bachelor’s degree or higher or its equivalent;
- The sponsoring employer normally requires a bachelor’s degree or higher or its equivalent for the position; OR
- The nature of the duties of the position are so specialized and complex that knowledge required to perform the job duties is usually associated with the attainment of a bachelor’s degree or higher.
How many H1B visas are available every year?
Every year on April 1 the United States government makes available 65,000 regular cap H-1B visas and 20,000 master’s cap H-1B visas available for the upcoming government “fiscal year”. The government fiscal year begins on October 1 of every year. For example, when the H-1B visa window opened on April 1, 2010, the government made available H1b visas for the 2011 fiscal year, which begins on October 1, 2010.
When can I submit an application?
If you’ve never been subject to the H1B cap, you can only submit an H1B visa application if there are H1B visas available (as discussed, there are a limited number of H1B visas available every year). If you’ve been subject to the H1B visa cap previously (this means you were previously approved for an H1B) you can submit an application at anytime. At the present time, there are no H1B visas available as they were all taken during the first week of April 2015. If you haven’t been subject to the H1B cap previously and your employer is not “cap exempt” then you cannot submit an H-1B application until April 1, 2016. As mentioned above, a new allotment of H1B visas are made available on April 1st of every year. It is always strongly advised to be in a position to submit your H1B visa applicaton on April 1. That being said, you should start working with an attorney around January or Februrary. While the demand for the H1B visa seemed to be in decline from 2009 through 2012, the three most recent H1B seasons (2013, 2014 and 2015 aka Fiscal Years 2014, 2015 and 2016) saw a huge surge in demand as the cap for both years closed within the first week of April. In 2013 (Fiscal Year 2014) USCIS received 124,000 applications for the 85,000 (65,000 regular and 20,000 masters) spots available, in 2014 (Fiscal Year 2015) USCIS received 172,500 applications, and in 2015 (Fiscal Year 2016) USCIS received a whopping 233,000 visa petitions! This is in stark contrast to 2012 (FY 2013) and 2011 (FY 2012). In FY 2013 the cap remained open until June 12, 2012, and in FY 2012, the cap remained open until November 23, 2011. The H1B visa allotment for Fiscal Years 2014, 2015 and 2016, the two most recent cap season, opened and closed in a matter of 5 business days and all applications received were subject to a lottery. For Fiscal Year 2015, USCIS announced on April 7, 2014 that they had received 172,500 petitions and that they would start running the lottery. In the most recent cap season, Fiscal Year 2016, USCIS announced on April 7, 2015 that the cap was reached and they announced on April 13, 2015 that they had received 233,000 petitions for the lottery. If you would like a better understanding of the H-1B visa lottery, please see Learn How the H-1B Visa Lottery Works for more info.
Are there H1B Visas presently available?
No, not at the present moment unless one of the following apply: 1) you are in the H-1B status working for a cap-subject employer and you’re seeking to transfer employers; 2) you have previously been approved for an H-1B; or 3) you’re applying with an employer that is cap-exempt. USCIS announced on April 7, 2015 that the H-1B visa cap for Fiscal Year 2016 was reached. Unless one of the exceptions discussed at the beginning of this “Q & A” applies, you cannot file an H1B petition until April 1, 2016 for the Fiscal Year 2017 H1B cap. It’s important to note that the earliest start date for a FY 2017 H-1B is October 1, 2016. To track the H1B visa numbers over the past several years and learn more about the H1B cap and the H-1B lottery, please see the following posts on our site: H-1B Visa Quota Update and Learn How the H-1B Visa Lottery Works.
When should I start preparing my application?
It’s never too early to start to prepare your H1B application, but generally speaking it’s a good idea to start at least several months in advance to avoid any potential hiccups or delays. For example, many clients start working with us in December and January for the April 1 cap-subject filing filing.
What start date can I request for my H1b employment for a new application?
For a new H1B application, you cannot request a start date earlier than October 1 of the same year if you’re applying with a cap subject employer. For example, if you apply on April 1, your start date cannot be earlier than October 1 of the same year, unless your position is not cap-subject. Likewise, if you apply on July 1, your start date cannot be any earlier than October 1. You also cannot request a start date more than 6 months in advance. This means that if you file an application on June 1, you can only request a start-date between October 1 and December 1. In this regard, it’s also important to recognize that if you are filing a change of status in the United States you must be able to maintain a legal status until your start-date request. Likewise, if you file an application after October 1, you can request a start date almost immediately or 6 months in advance. If you have already been subject to the H1B visa cap and you are not re-subjecting yourself to the H1B cap, then you can request a start as soon as possible or up to 6 months in advance of filing the petition.
What qualifies as a cap-exempt organization and what’s the difference compared to a cap-subject?
A cap-exempt organization is one of the following organizations:
- an institution of higher education as defined in section 101(a) of the Higher Education Act, of 1965, 20 U.S.C. 1001(a)
- a nonprofit entity related to or affiliated with an institution of higher education as defined in section 101(a) of the Higher Education Act, of 1965, 20 U.S.C. 1001(a)
- a nonprofit research organization as defined in 8 CFR 214.2(h)(19)
- a governmental research organization as defined in 8 CFR 214.2(h)(19)
The difference between a cap-subject organization and a cap-exempt organization is that if you are applying for an H1B to work for a cap-exempt organization then you are not subject to the H1B cap! Furthermore, you can file your application at any time and you can begin working upon approval; in other words you are not restricted by the April 1 filing date and October 1 start date.
Is any type of nonprofit organization or governmental organization exempt from the H1B cap?
No, only those that engage in RESEARCH are exempt from the cap. 8 CFR 214.2(h)(19) tells us the following in this respect:
- “A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research.”
- “A governmental research organization is a United States government entity whose primary mission is the performance or promotion of basic research and/or applied research.”
- “Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities.”
- “Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.”
I don’t have a bachelor’s degree. How can I still qualify?
In certain circumstances, experience can be substituted for education. 3 years of experience in the particular occupation equal 1 year of education. Therefore, in certain cases, 12 years of experience could be deemed equivalent to a bachelor’s degree for H1b visa purposes. A common scenario is where an applicant has only 2 or 3 years of education and 3 to 6+ years of experience. In those situations, it it is possible to have the education and experience combined to give the applicant the equivalent of a bachelor’s degree. In order to be successful in using work experience in lieu of education, it is essential to obtain letters from previous employers attesting to your work experience.
My bachelor’s degree is unrelated to the occupation?
In such a scenario it is important to speak with an experienced H1b visa lawyer to determine if this is in fact the case. A good H1b visa lawyer may be able to find the proper connection by evaluating the specific courses you took and your work experience. By focusing on specific courses and your work experience, it may be possible to obtain an evaluation equating your education and/or work experience to be equivalent to a specific United States degree.
My degree is from outside of the United States. Does it need to be evaluated?
In most cases, if your degree was obtained from outside of the United States, it should be evaluated by a competent degree evaluation company in order to ensure that it is equivalent to a specific United States bachelor’s degree. The evaluation company will evaluate the degree certificate, transcripts and translations, if necessary, and issue an evaluation stating that it is equivalent to a United States bachelor’s degree (or masters or higher) in a specific field of study.
My position normally requires a license, but I don’t have it. Can I still be approved?
This depends entirely on the nature of your occupation, the industry, and state laws. In some circumstances, an H-1B can be approved for an occupation that normally requires a license for an individual that does not have a license. For example, an H-1B can be approved for an individual who will be filling an “attorney-like” or “architect-like” role as long as that individual is working under the supervision of a licensed individual. As this can be a very nuanced matter, it’s best to discuss the details with your H-1B visa attorney.
What are some common H1B visa occupations?
While by know means exclusive, the following is a general overview of positions that have been considered “specialty occupations”: architects; engineers; professors; teachers; lawyers/attorneys; other related legal positions; programmers; computer systems analysts; database administrators; software engineers; computer-related occupations; accountants; financial analysts; budget analysts; economists; management consultants; public relations and communication specialists; doctors; dentists; physical therapists; dietitians; medicine and health related occupations; writers; editors; artists of varying types; librarians; archivists; marketing and advertising positions; social workers…and the list goes on! It is impossible to list each and every possible occupation or job that may qualify for an H1B visa, so please don’t panic if you don’t see yours here. Just contact us!
How do I determine the H1B prevailing wage for my position?
The prevailing wage is based on several factors, such as the occupation for the position, work location, and amount of experience required for the position. As part of our service, we determine what the H1B prevailing wage will be for the position. There are two ways to determine the prevailing wage: 1) Submit a prevailing wage request with the United States Department of Labor; OR 2) Classify the position ourselves and find the position online on the United States Department of Labor’s website (http://www.flcdatacenter.com/). Option 2) is the preferred method. For some positions we’re able to give clients an idea of the approximate prevailing wage even before we begin processing the case, but for other clients, where the position or occupation is less clear at the outset, we can only determine the prevailing wage after analyzing additional information related to the employer and the position.
How much visa H1B experience do you have?
From first contact, you’ll have complete confidence that you are dealing with an experienced H1B Visa Attorney with strong H1 visa knowledge and experience. In fact, while Lightman Law Firm is experienced in many areas of immigration law, H-1B visas are among our most common and sought after services. We work with employees and employers in a wide range of professional fields, and with foreign nationals from across the United States and the world. Due to our experience in the field, we were recently asked to contribute our thoughts on the H-1B visa program and its impact on IT solution providers. See the following link for access to this article: H-1B Jobs: IT Solution Providers at a Disadvantage. There are a lot of factors to consider when deciding how to select an immigration lawyer for your H-1B visa application.
I don’t live in New York. Can you still work with me?
Absolutely. We work with foreign nationals and employers from all across the United States and throughout the world. Whether we meet in person, over the phone, or using the internet, our strong communication will be an asset to your case.
How long does the process take?
Much of this depends on how long it takes our clients to gather the information required to submit an application. Typically, from the moment that the all the materials have been provided, an application can be submitted within approximately 7 days. The 7 day delay is largely due to the time it takes to receive the certification of the Labor Condition Application (LCA) from the Department of Labor (DOL), as an H1b visa application must be submitted with a certified LCA. Approval time then depends on USCIS and the method of processing. If the application is submitted via regular processing, it can typically take anywhere from approximately a few weeks to a couple of months. If the application is submitted via premium processing, it can take up to 15 calendar days.
What type of information and documents do you need from me and my employer to prepare the application?
Generally speaking, information required for the proper preparation of the H1b visa application can be broken up into 3 parts: employer; position; and foreign national. We will need to discuss and document each of those items in detail. For a more indepth overview of what type of information and documents you should be prepared to provide, please see the following video:
What are the USCIS filing fees for a new H1b application?
The filing fees range from a total of $960 or $1,710 for some types of organizations to $2,460 for other types of organizations. If the company sponsoring you for an H1B is not a cap exempt organization (see above for a definition) or a primary or secondary education institution, then the filing fees will be $1,710 if they employ 25 or less employees in the United States OR $2,460 if they employ 26 or more employees in the United States. If the sponsoring organization is a cap-exempt organization (see above for a definition) or a primary or secondary education institution, then the filing fees will only be $825. It should also be noted that if the sponsoring organization employs 50 or more individuals in the United States AND 50% of those employees are in the H-1B or L nonimmigrant statuses, then there will be an additional fee of $2,000. Premium processing, which guarantees a response within 15 calendar days, costs an extra $1,225 for any type of application. For more info on H-1B filing fees, please see the following informative blog post on our site: Everything You Need to Know About H-1B Filing Fees.
How do I know how much the fees are for my new H1B application?
The fees consist of the following: a) $460 petition fee; b) $500 fraud fee; and c) $750 or $1,500 ACWIA fee. If your employer employs 25 or less employees, the total fees are $1,710 (ACWIA fee of only $750) whereas if your employer employs 26 employees or more the total fee is $2,460 (tack on $2,000 if 50 or more employees and more than 50% are in H-1B or L status). However, some employers are exempt entirely from the $750 or $1,500 ACWIA fee and therefore only pay total filing fees of $960 (cap exempt organizations or primary or secondary education institutions).
What are the fees if my employer is merely seeking to extend or amend my H1B?
If the petitioner is seeking for the first time to extend your H1B, and they previously filed an H1B for you, then the $500 fraud fee is not due again with the extension. That means that the filling fees will only consist of the $460 petition fee and the $750 or $1500 ACWIA fee (the additional $2,000 fee could still apply). If the petitioner is seeking for the second time to extend your status (this means it would be the 3rd petition the petitioner has submitted on your behalf) then the ACWIA fee and fraud fee are not required, leaving the total filing fee at $460. If the petitioner is merely seeking to amend your H1B and is not asking for an extension of stay, then the fee is only $460.
Who can pay the USCIS filing fees?
The foreign national or employer can pay the $460 petition fee, the $500 fraud fee, and the $1,225 premium processing fee. However, the employer must pay the $750 or $1,500 ACWIA fee. If the foreign national pays the $500 fraud fee, the amount will be deducted from the total wage paid to him/her in the H1B status when determining whether he/she has been paid the minimum prevailing wage.
What happens to the application and the USCIS filing fees if the H1B application is not selected as part of the H-1B lottery, assuming there is a lottery?
Applications that are not selected as part of any H-1B visa lottery are returned along with all USCIS filing fees. They are usually accompanied by a short letter from USCIS explaining that the application was not selected as part of the random selection process.
What are the H1B Lawyer legal fees for H1B representation?
Give us a call and we will be happy to discuss our fees with you. Rest easy, Lightman Law Firm prides itself in offering the highest level of service at an affordable FLAT rate. You will never experience any pressure or obligation to work with us.
Put our H1B Visa Lawyer experience to work for you. Contact us to discuss your case: 212-643-0985 , email us or fill out the contact form above.