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H-1B Worker

An H-1B visa allows an employer to hire a nonimmigrant foreign worker to temporarily work in the U.S. in a specialty occupation or as a fashion model of distinguished merit and ability. The job offered to an H-1B worker must be a professional position that requires at least a bachelor's degree, or the equivalent, and the application of specialized knowledge. Many high-tech companies, such as Microsoft, IBM, Apple, Pfizer, as well as academic institutions, have utilized this program to bring in talented foreign professionals under H-1B status to help maintain their leadership in technology, science and business.

An H1B worker is authorized to work for the sponsoring employer for three years, with an option to extend for another three years. They may change jobs, with the approval of a new H1B petition, but the six-year limit is not extended. After the H1 expires, the foreign worker must leave and remain outside the U.S. for at least one year before being eligible for another H1 again. However, an H1B employee with a pending labor certification or immigration petition may qualify for an extension beyond the six year limitation.

How many H-1B visas are available every year?

There is a numerical limitation on the numbers of temporary workers each year. Currently the annual cap is 65,000, with an additional 20,000 available to people with a Master's or higher degree from a U.S. university. Out of 65,000 H-1B visas, 6,800 are reserved for Chile and Singapore citizens under the H-1B1 program. Unused H-1B1 visas will be added back to the annual cap.

H-1B workers for universities, other institutions of higher education and qualified non-profit organizations are exempt from the annual cap. Renewals and new petitions due to change of employers are not counted against the maximum quota either.

Despite the above exemptions, H-1B visas are in very short supply and often depleted rapidly in recent years. The 2008 annual cap was reached on the first day, and USCIS had to use a lottery system to randomly select applications, although lucky winners couldn't even start working until six months later on October 1st, 2007. The additional 20,000 visas for U.S. advanced degree holders were also exhausted within the first month.

How many H-1B visas are approved each year?

USCIS H-1B Statistics
Fiscal Year H-1B CapReceipts (I-129) ApprovedDeniedWithdrawnClosed and Other Status
200996,20587,5705,2411,6541,740
2010102,34386,56712,1202,2961,660
201193,24484,0815,5751,8691,719
201293,15285,2733,8991,8172,163

How long can I be in H-1B status?

A temporary worker may remain in H-1B status for a maximum of 6 years, and must renew it after the first three years. Certain aliens working for the Department of Defense (DOD) are allowed to remain in H1B status for 10 years. However, an alien worker is allowed to extend his or her H1B status beyond the 6-year maximum period, if any of the following conditions is met:

  • A labor certification (LC) application has been pending for 365 days or more;
  • An employment-based immigrant petition (I-140) has been pending for 365 days or more;
  • An I-140 has been approved, but a visa number is not available for adjustment of status.

The 7th year extension is issued in 1-year increments, but an alien with an approved immigrant petition may obtain a 3-year extension if he or she is unable to apply for a green card due to visa retrogression.

Can I start immigration process while still in H1B status?

Yes. H1B is one of the few nonimmigrant visa categories that allows "dual intent," meaning that you may apply for permanent residency without affecting your H1 status.

Can an H1B employee work for more than one employer?

Yes. But a separate H1 petition, Form I-129, must be approved for each employer.

Can I work part time under H-1B?

Yes. You may work only part-time as long as the employer/employee relationship exists.

Is an dependent of an H-1B authorized to work?

No. The spouse and children of an H-1B worker are under H4 status and not authorized to work, unless they obtain their own H-1B or EAD.

Can an H1B worker travel abroad and return to US?

Yes, if you have a valid H-1B visa (stamp on passport). Note the difference between status and visa: if you changed your status from F1 to H1, for example, you are in legal H1 status but it alone doesn't allow you to reenter the U.S. You still must obtain an H1 visa, issued by the Department of State (usually a US consulate), in order to return.

When is an H-1B petition considered accepted?

A case is considered accepted on the date that USCIS takes possession of the petition; not the postmarked date. This is very important as it is different from many other government agencies' policy, such as the IRS.

What if I haven't received my degree certificate at time of filing H-1B?

If you have met all the requirements for the degree, but the degree has not been awarded, you may alternatively submit a copy of the beneficiary's final transcript, or a letter from the school's Registrar confirming that all of the degree requirements have been met. If your school does not have a Registrar, a letter signed by the person in charge of academic records will be accepted by the USCIS.

I am the sole owner of a company, can I hire myself as an H-1B worker?

This is an interesting question. USCIS modified its FAQ in 2011 to clarify the H-1B Memo:

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

A: Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

How to Organize an H-1B Petition Package?

USCIS recommends the following order to assemble an H1B package:

  • Fee payment checks, stapled to the bottom right corner of the first document (a separate check for each applicable filing fee - Form I129, Premium Processing, Fraud Fee, etc. - is preferred;
  • Form I-907 (if filing for Premium Processing Service);
  • For G-28 (if represented by attorney or accredited representative)
  • Form I-129 (Petition for a Nonimmigrant Worker) - Important: Clearly label the H-1B cap case in red ink on the top margin of Form I-129 using codes "Regular Cap," "U.S. Masters," or "C/S Cap";
  • H Classification Supplement to Form I-129;
  • H-1B Data Collection and Filing Fee Exemption Supplement;
  • Supporting documents with a Table of Contents:
    • Tab documents as listed in Table of Contents;
    • Form I-94 (if beneficiary is already in the U.S.);
    • If applicable, the SEVIS Form I-20 (if current or former F-1 student or F-2 dependent), SEVIS Form DS-2019 (if current or former J-1 or J-2) or Form I-566 (if current A or G nonimmigrant)
    • Form ETA 9035, Certified Labor Condition Application (LCA) from DOL;
    • Employer, Attorney, or Representative letter(s); and
    • Other supporting documents (degree certificates, previous H-1B approval notices, etc.
  • Duplicate copy of the petition if the beneficiary will be seeking visa issurance (actual visa stamp on passport) abroad. Clearly mark the duplicate as COPY.

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