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H-1B is a nonimmigrant visa category used by employers to gain authorization for temporary employment of professional workers. The key issues in determining eligibility for H-1B include: 1) whether the position is a specialty occupation; and 2) whether the beneficiary meets the requirements for the specialty occupation.
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| Specialty occupation |
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To establish that a job qualifies as a specialty occupation, one or more of the following criteria must be met:
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- a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
- the degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
- the employer normally requires a degree or its equivalent for the position; or
- the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree. In addition, the required degree must be in a specialty field related to the position.
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H-1B visa cap
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The H-1B visas are capped at 65,000 per fiscal year. The U.S.-Chile and U.S.-Singapore Free Trade agreements provided that 6,800 of the 65,000 visas are to be set aside for use by nationals of Singapore and Chile, with any unused numbers being added back to the general H-1B classification. Certain H-1B employees are exempt from the numerical limitations. They include: beneficiaries of employment offers at institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations; H-1B extensions of status with the same company; a petition for a second H-1B; and transfers from one H-1B cap subject employer to another H-1B employer. In addition, there is an exemption capped at 20,000 per fiscal year for aliens who have earned a master’s or higher degree from a U.S. institution of higher education.
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H-1B portability
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A person in H-1B status may accept new employment upon the filing of a new petition by the prospective employer if s/he meets the following conditions:
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- s/he was lawfully admitted;
- the new petition is nonfrivolous;
- the new petition was filed before the date of expiration of the period of stay authorized; and
- the H-1B beneficiary has not been employed without authorization before the filing of such petition.
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H-1B extension
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A timely filed H-1B extension application will continue the H-1B worker’s employment for 240 days beyond expiration of the I-94 while the extension application is pending.
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In addition, an H-1B can extend his or her status beyond the six-year limitation under two circumstances:
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- H-1B status can be extended in one year increments where a labor certification, an I-140 or employment-based adjustment application has been filed and 365 days or more have elapsed since the filing of a labor certification or the filing of the I-140 petition;
- H-1B status can be extended up to three years at a time where an H-1B has an approved I-140 but is unable to file I-485 due to per country limitations in immigrant visa.
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Travel while I-485 is pending
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If an H-1B is not under exclusion, deportation, and removal proceedings and is in valid H-1 status, s/he may travel while his or her adjustment of status application is pending without an advance parole if s/he: (1) is coming to resume employment with the H-1B employer; (2) is in possession of a valid H-1B visa.
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If the H-1B travels and re-enters on an advance parole, s/he will be considered in “parolee” status although s/he can continue working for the H-1B employer. Subsequently, when the H-1B files and receives an extension of his or her H-1B status, the parolee status will be terminated and s/he will be admitted as an H-1B.
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Want to find out whether you are qualified for H-1B? Please send your inquiry to us for a free evaluation.
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