Jewish Journal

H-1B visas

by Cedric M. Shen

March 9, 2011 | 11:03 am

H-1B visas

OK, I’m going to jump ahead of the alphabet a little bit just because the H-1B season is in full swing.  This is probably one of the most popular, and most sought after, work visas offered by the United States.  Even people who are unfamiliar with U.S. immigration law have probably heard of the H-1B.  In fact, I was on an H-1B visa for a couple of years.  Every year, Congress issues 65,000 of H-1B work visas and most, if not all, are used up.

What is it?

The H-1B Non-Immigrant Work Visa may be issued to applicants seeking temporary work in a “Specialty Occupation” which requires the skills of a professional. “Specialty Occupations” may include: accountants, computer analysts, programmers, web designers, engineers, financial analysts, doctors, nurses, scientists, architects and attorneys, etc. In addition, Congress has authorized an additional 20,000 H-1B visas for people with advanced degrees (M.D., J.D., MBA, Ph.D. etc.).

Employers submit petitions based on their need for the prospective non-US.-resident employees. Generally speaking, H-1B visa holders should have at least a bachelor’s degree. However, relevant experience may be considered in lieu of such education requirement. In previous years, this type of applications reached the prescribed application quota in a short period of time.

The H-1B fiscal year begins on April 1st and, in prior years, the entire quota was met within the first few days.  That has not been the case in the past year.  In fact, the 2010 quota has not been met as of January 2011.  With April 1st lurking around the corner, most employers and attorneys have been working hard the past couple of months to get their applications ready.  I don’t expect the cap to be reached within the first few days as it did back in 2006.  However, it is probably wise for any potential H-1B applicants to start getting their papers ready for filing as soon as possible.

How do I apply?

You will need an employer who is willing to petition an H-1B visa on your behalf.  You will have to get a Labor Certification Approval, and the employer must pay you the minimum prevailing wage or higher.  The entire application process should take a couple of months.

What you need to know

If this is your first H-1B application, be sure to have the application prepared for filing on April 1st.  While the quota was not immediately met after April 1st in the last couple of years, it is likely that the quota will fill up fast as we come out of this recession.  The last thing you want is to have the quota met by May and not be able to file for H-1B for another year.  Depending on your country of citizenship, consider other visas to fill the time gap, such as a TN visa or L-1 visa.

You should also know that the H-1B allows for dual intent, which means that you can apply for permanent residency while on the visa.  Most people on an H-1B also have their employer sponsor them for a green card.

The H-1B is good for three years plus an additional three year extension.  You can also change employers on an H-1B.  If you are waiting for a green card while on your H-1B, you may request additional1-year extensions beyond the six years for an indefinite period of time.

Little known fact:  If you are seeking an H-1B extension and your application for green card is approved, you can seek a three year H-1B extension even beyond the first six years.

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Cedric M. Shen is a Los Angeles-based immigration attorney experienced in helping foreign nationals enter the United States. His law practice focuses on employment-based green...

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