H1B Employers and Workers
H1b visa category is for highly skilled foreign nationals. Individuals with college degree of Bachelors, Masters or Ph.d. and even professionals qualify for this visa. An h1b worker can be lawfully employed in the United States for a maximum of 6 years and is granted 3 years of legal status at a time, working for the specific U.S. employer. One can have their spouse and children stay in the United States and children could go to school here. Employers highly desire H1B workers. Physicians and other health care professionals, engineers, professors and teachers, scientists, lawyers, fashion designers and many other professionals can work for U.S. employer upon approval of the h-1b petition.
Advantages of H1B status:
- lawful stay for up to 6 years and more,
- lawful stay for dependent family members and
- Dependent children could go to school
- Apply for lawful permanent residence (green card)
- extend h1b status beyond 6 yrs. pending green card
- spouse can obtain work authorization.
Qualification
Bachelor or higher educational degree as a job requirement. (Years of experience can substitute educational requirement.)
H-1B CAP
Each year, U.S. employers can hire h1b workers for a total of only 65,000 h1b positions for bachelor’s degree holders, called the "regular cap," and an additional 20,000 positions for master’s degree holder, called "advanced degree exemption." This is called the annual cap.
H1b numerical limit is the worst downside of the h1b employers and future employees equally. There is such a huge demand for professional workers that the h1b annual quota is filled as soon as the h1b registration period begins. Employers cannot file new h1b workers petitions for the rest of the year if the cap is reached. If a position opens up later in the year the employers interested in hiring qualified candidates for the cap subject h1b positions must then wait a whole year for the h1b quota to open up the next year.
Employer Registration
H1B process starts with employer registering with the USCIS. Registration of employers as h1b initiation process began for the first time in Fiscal Year 2021. Employers who wish to file h1b petitions to hire their foreign national candidates must first register with the USCIS. Since only 65,000 h-1b positions can be filled annually, a selection process is conducted through automated selection process if too many h1b registrations are sought. Since h1b workers are in very high demand, the lottery selection process is inevitable and happens year after year. Employers selected by the USCIS alone, (after registration) are notified and invited to submit the h1b petitions.
When to register:
H1b registration period for employers begins at an announced date, usually a couple of weeks in the month of March, when USCIS allows online registration by the employer. registration filing deadline has been extended by a day or two in the past when the agency faced technical glitches. Reportedly, this was due to system being overwhelmed with too many users.
The following h1b petitions can be filed at any time and are not cap subject:
Extension of stay
-
Change h1b employment terms
-
Change of h1b employer
-
Concurrent H1b petition
-
Recapture of h1b time spent outside
Employer's Obligation
H1b employer must pay higher of actual wage or the prevailing wage prevailing in the area for the position, upon termination of employment pay return travel expenses among other obligations. Call for advice.
American Competitiveness in the Twenty First Century Act (AC-21) porting
7th year extension, beyond six years period of h1b employment is possible in many cases; if the employment-based immigrant visa petition is approved for 6 months or is pending for over a year. H1b worker can remain employed for a maximum period of 6 years, three years initial period is extendable to another three years. AC21, however, allows additional h1b employment beyond six years under some circumstances!
Contact a knowledgeable attorney as early as possible for an uninterrupted and lawful stay and employment. Ideally, if you are considering 7th year extension, you should contact my office as early as possible and before the end of your 4th h1b year with information about permanent residence petition.
Premium Processing
Faster processing of h1b petitions is possible for an additional filing fee called “premium processing.” It requires the agency to take action on an H1B petition within 15 days of its receipt. However, deficient h1b applications may not benefit from this process. Premium processing is optional.
For more information on planning for your immigration status, call to schedule a consultation.
Amendment of h1b
Initial h1b petition requires an amendment under certain circumstances. Reasons could be organizational restructuring, significant changes in the job duties or change in work location should require changes in petition and new labor condition application.
Call for advice if have questions whether the employer is required to file an h1b amendment petition.
Call If You Need Help And You Are
U.S. EMPLOYER and have found a qualified foreign national you would like to hire for a period of up to three years; or,
FOREIGN NATIONAL with a job offer from a U.S. employer and would like to:
-
Apply for authorized employment; or,
-
Know if you qualify for h1b; or,
-
Have your employer file an h1b petition for you; AND... IF,
-
The position requires a Bachelor's Degree or higher as a minimum educational qualification.
(All requests are first assessed whether H1B eligibility criteria can be met.)
Legal Advice
Questions about initial h1b or extension eligibility with change of status or consular processing need; cap exempt h1b organizations; prevailing wage; employer obligation under Labor Condition Application (LCA); employer’s ability to pay issues; h1b fraud inspection; change of job location or of employer; business merger or acquisition; issues about h1b admission or change of status; or impending international travel.
Whether the employer institution qualifies to file cap exempt H1B requires an in-depth analysis. Normally, a non-profit or higher educational institution qualifies for this exemption, but many other institutions may also qualify through affiliation. Physicians, professors and researchers etc., seeking employment at a university or affiliated hospital or other institution may also qualify for cap exempt H-1B status.
Myth Buster
H1B employer need not be the one who had filed the Labor Certification for the employee.
Experience
H1b cases worked on so far, in the following industries: Healthcare, Business Management, Building Construction, Education, Engineering: Information Technology, Pharmaceutical, Environmental, Automotive, Sports, Manufacturing, Electronics, Heating & Cooling, and Communications. If you have a candidate "Haranlaw" would ike to help you.
H1B_CAP
What does it mean when the infamous CAP is reached!
H1B numbers are fixed by the Congress for each Fiscal Year for how many new H1b petitions could be approved. A total of 65,000 regular quota petitions (candidates with bachelor’s degree) and 20,000 petitions for advanced degree (Masters) candidates, could be filed per Fiscal Year i.e. a period of one year starting October 1st through September 30th of the following year. This means that no new cap subject H1B petitions can be approved beyond this number and consequently no new h1b position is available to U.S. employers until the filing begins for the next year.
So, it is very important that U.S. EMPLOYERS of future h1b employees plan early!
Due to a huge demand for professional workers in the United States and numerical limitations imposed on H1B petitions and limited available alternatives h1b worker category is oversubscribed.
NOTE: H1b extensions and New CAP EXEMPT h1b petitions can still be filed!
H1b category is oversubscribed (cap is reached) year after year. When the visa category is oversubscribed no further cap subject petitions could be filed. USCIS establishes a process for selecting the allowed number of petitions. Recently, to avoid the unnecessary efforts in preparing and filing petitions beyond the required numbers USCIS has started the employer registration process. Over the years an automated selection process picks the employers’ registration for specified candidates. Selected registrants are notified by the USCIS to file the H1b petition.
There are some H1B positions that are exempt from h1b cap. H1b petition can be filed for such positions anytime. Contact us if you are not sure whether your H1 position is cap exempt.
Preparing a successful H1B petition is a time-consuming process. Planning and preparation should start as early as possible.
H1B FAQs:
Yes, if
FULL-TIME Job position requires a bachelor’s degree or higher
and/or years of experience
or a combination.
Congratulations! This is a time involved process. A well-prepared packet can get approvals very quickly. If USCIS needs more information, it would issue Please call my office to get this information.
Yes!
No! You are not required to be working with the employer at the time of filing your h1b.
Yes!
Great question! Need more information and answer depends upon what is your goal? Please schedule a consultation and provide your approval notice and employment offer letter with the new employer.
Possibly yes, with strategic planning.
If you desire more information or would like to plan for your immigration status, call to schedule a consultation.
H1B - Extensions
H1B Worker Can't Be Removed
Badrawi v. U.S, 07-cv-01074-JCH, filed 4/12/11
The Federal Dist. Ct. Connecticut held that when an H1B worker filed a timely extension petition he is not removable upon expiry of his lawful stay.
The Court held that under the Federal Regulations such worker is employment authorized for 240 days from the date of expiry of his status. Fairnes and due process required that the foreign nationals stay within U.S. be considered authorized by the regulations.
H1B - Request For Evidence
H-1B Request For Evidence (RFE): now what?
H-1b petition as filed, if did not justify eligibility criteria, would meet with request for evidence popularly called RFE. When USCIS finds an h1b petition as approvable but there is insufficient supporting information to approve, it results in the request for evidence notice. Response is required within a time of 30/60/90 days failing which the petition will be denied.
Do not panic! Most of the times these RFEs can be well responded. Common reasons for RFE include last minute filing, employer serving third party clients, first time h1b filing, wages or educational criteria in issue, exempt employer but there may be others. An appropriate and timely response must be provided to obtain the h1b approval.
If you have questions; please call Haranlaw at (317) 660-6174 or email at lharan@haranlaw.com
Documents to prepare H1b petition
About the Employer:
-
Employer tax identification document
-
Organization structure
-
Authorized officer contact information
-
Position description with duties
-
Organization hierarchy & number of total employees
-
Re-organization, if any
-
Prior H1 employment
-
Prior lay offs at this position
-
Statement of Income & Expense/ Profit and Loss
-
Licensing requirements for the position
-
Additional documents are required for an employer that is a non profit affiliated entity
About the Foreign National Employee:
-
Resumé
-
Educational qualification i.e. graduation certificate, transcripts
-
Passport & I-94 (if available)
-
other records of educational, immigration, and biological information
Details of Family members (if any)
-
Birth certificate,
-
Marriage certificate
-
passport
-
I-94 (if any)