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H-1B Visas for advanced degree professional employees

What is an H-1B visa?
An H-1B visa is a visa for foreign nationals who accept professional work assignment with employers in
the US. There is a yearly cap of 65,000 H-1B status visas issues each year. And an additional 20,000 visas
are issued to professionals with advanced degrees.

An H-1B visa may be valid for three years. During the validity of the visa, the foreign national may
change employers provided the new employer is also an H-1B employer. The foreign national who holds
an H-1B visa can apply to extend the visa for up to three years. Extension of a valid H-1B visa can be
made for a total of six years. A foreign national who holds a valid H-1B visa can also apply
simultaneously apply for permanent residence in the US. The dependent spouse and children of a
foreign national who has a valid H-1B visa can also qualify for an H-4 visa.

Who are qualified for an H1-B visa?
Professionals who pursue a specialty occupation may qualify for an H1-B visa. A professional occupation
requires theoretical and practical application of a body of highly specialized knowledge. The minimum
requirement is for a bachelor’s degree in the specialized field in areas such as architecture, engineering,
mathematics, physical sciences, social sciences, education, business, accounting, law, theology, and the
arts. Contractors of the Department of Defense who are engaged in research may qualify for this visa.
Persons occupying positions where a professional certification or licensure is required may also qualify
for an H-1B visa. Physicians, licensed practical nurses, vocational nurses and registered nurses,
occupational and physical therapists, speech-language pathologists and audiologists, medical
technologists, and other medical technicians fall under this category and they are qualified for an H1-B
visa.

A person occupying a specialty occupation must possess specialized learning, knowledge, skill or
distinguished merit or ability in fields of human endeavor. Writers may qualify for this visa provided
they can demonstrate they have achieved recognition of their expertise in a specialty occupation
resulting from training and experience. Expertise may be established by membership in an association or
society for the specialty occupation, or by publication of material in professional publications, trade
journals, books or newspapers.

What are the requirements for an H-1B visa?
The following are conditions that must be met by the foreign national applying for an H-1B visa:

  • The foreign national must have a professional assignment in a US company or employer.
  • The employment relationship must be under a valid employment contract or employment
    status.
  • The US company or employer must have applied for and have an approved labor condition
    application from the US Department of Labor.
  • There must be no ongoing labor dispute in the worksite for the particular occupation or position
    that the foreign national was hired for.
  • The foreign national must qualify for a specialty occupation. The applicant must hold a four-year
    bachelor’s degree or must have a combination of education, experience and training for the job.
  • The application for an H-1B visa must be within the available number of visa applications for the
    year.

Who files the petition for the issuance of an H-1B visa?
Note that it is the US employer who will file the application on behalf of the foreign professional who
seeks the H-1B visa. The foreign national himself or herself cannot file the petition on his or her own
behalf. The employer files the application.

What documents should the applicant attach as support for his petition for an H-1B visa?
The applicant must attach the following documents to his petition:

  • The offer of employment or an employment contract on the letter head of the company that
    describes the duties of the position, the term or period of employment and the requirements
    for the job.
  • Copies of the transcript of academic records or certificates, diplomas that evidence the
    academic credentials possessed by the applicant.
  • Copies of the curriculum vitae or resume of the applicant.
  • Basic information about the company (that evidences the ownership of the company, its
    capitalization, its structural organization and the business it regularly engages in.
  • Biographic pages of the passports of the foreign national applicant, the dependent spouse and
    children.

 

How do the visa limits or visa caps work?
Every year, only 65,000 H-1B visas are available. The application period begins on April 1 each year and
the US Citizenship and Immigration Services will process all applications until the cap is reached. Since
there are many more applications than there are available visas, the application period closes within the
first five business days after the 1 st of April each year. The USCIS publishes the end of the application
period.

However, acceptance of the applications does not mean that all accepted applications will be approved.
When the number of approved applications do not exhaust all the available visas for the year, the USCIS
uses a lottery system to decide on which H1B petitions received on the last date may be allocated an H-
1B visa number.

Can an employer file multiple petitions on behalf of an employer?
No, an employer cannot file more than one petition on behalf of an employee in one fiscal year. It is
prohibited for an employer to file multiple petitions. Filing multiple petitions will cause the employer to
pay filing fees for all the petitions, but the petitions will be denied, and the filing fees will not be
refunded. Filing multiple petitions for one employee to increase the chances of being selected in the visa
lottery is taken by the USCIS as an exploitation of the system that disrupts the fair and orderly
administration of the visa cap. Also, it given an unfair advantage to employers and makes the
adjudication process slower for all other H-1B visas. It also inhibits the USCIS’s ability accurately project
the number of petitions to accept to generate the number of approvals to reach the 65,000 limit every
year.

Are there types of employment that are not subject to the cap?
A professional employed in an institution of higher education, a nonprofit entity that is related or
affiliated with an institution of higher education, or a nonprofit or governmental research organization is
not subject to the H1-B cap.

The H-1B visa has a complex application process. Time is of the essence in submitting the petitions. It is
necessary for the petitions to be accurately and completely accomplished and all supporting documents
must be attached to the petition. Any inaccuracies, any blanks in the petition and all lacking documents
will cause delay. You will surely need help in filing the petition for an H1-B visa. Call our lawyers for
assistance today. The lawyers of Lluis Law are ready and willing to assist you.

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