Immigration Lawyers for H-1B Visa in Boston

What Is an H-1B Visa?

An H-1B visa allows a foreign person with at least a bachelor’s degree or its equivalent in work experience to work in the U.S., if the position the foreigner will fill requires such preparation, and the employer agrees to pay the individual the prevailing wage for such a position in the location of employment. The person will be in non-immigrant status (meaning that the person will not be residing permanently in the U.S.). However, the individual may apply for permanent residency thereafter. This is appropriate for someone who has a specialty job offer in the U.S. (requiring a bachelor degree or its equivalent in relevant work) and wants to start working as soon as possible.

There is a premium processing option for H visa petitions filed in the US, which for an additional filing fee, the U.S. Immigration Service will commit to process the application within 15 business days from receipt of the application. This does not mean that there will necessarily be a final decision in 15 days, but that there will be a response by this time. This response may be a visa approval, a denial or it may also include a request for additional documentation. Click here for more information on premium processing.

Who Is Eligible for an H-1B Visa in the US?

Foreigners with a bachelor degree, or its equivalent in work experience and specialized skills, are eligible for an H-1B visa (their dependents are eligible for an H-4 visa). To apply for this visa you must have the following requirements:

• A job offer in the U.S. with a company willing to sponsor you,
• A job offer for a position which is professional—requiring a 4 year college degree,
• A salary and working conditions that matches what others are making in the same field in the geographic area where you will be working,
• A bachelor degree or experience in the field of employment equivalent to a bachelor degree

Important Note regarding H1b Visa Limitations:
By law, there are only 65,000 (for professionals with a bachelors’ degree) and 20,000 (for advanced degree professionals) capped H-1B visas available each year. There are certain H-1B visas not subject to the yearly cap or maximum, available for employees of universities, government agencies and no-profit research organizations—see link below.

The USCIS starts accepting H-1B visa applications on April 1st each year, for the visas that will be issued in October of that year. Generally, H-1B visas have ran out by April, 1st, so it is suggested that you apply no later than  this date. The USCIS regularly reports on the number of H-1B visas still available for the year and you may check their web site for this information: USCIS on H-1B Fiscal Year (FY) 2014 Cap Season

What Is the H-1B Visa Duration?

H-1B visas last for 3 years.

Renewability

In most instances it can be renewed or transferred repeatedly, for a total of 6 years of validity. The visa holder may also apply for a permanent residency soon after applying for the H-1 (as a dual intent applicant). Extensions beyond 6 years, commonly known as 7th year extensions, are available for individuals for whom:
1). An LCA (Labor Condition Application) was filed prior to the beginning their 6th year on the H1b visa, and
2). This LCA is pending, or if it has been approved, there is a related I-140 (employment residency petition) pending, or an I-140 approved related to the specific LCA that was filed before the 6th year of the H1b visa.

In the event the H-1B beneficiary seeks alternative employment, he/she will need to transfer the H-1B visa. The H-1B holder may begin working in the new job prior the approval of this transfer, however, if the transfer is not approved the original H-1B visa will be lost. It is therefore recommended to complete the transfer before starting work in the new job.

Family Benefits

H-1B dependents (family members) or H-4’s can live and study in the U.S. as long as the H-1B or “primary” visa remains valid.

What are the Employer’s Obligations?

• If the H-1B employee is terminated for any reason before his/her authorization to work in the U.S. expires, the employer is liable for the reasonable transportation costs to return to the immigrant’s last place of residence.
• Employer is prohibited from charging a terminated H-1B employee a penalty for leaving his/her employment prior to any agreed date.
• Employer must pay the H-1B employee the required wage no later than 30 days from the H-1B employee’s entry into the U.S., or 60 days from the approval date of the visa petition if the H-1B employee is already in the U.S.
• Employer must provide the same working conditions and pay the same benefits to H-1B employees as they do for U.S. employees.
• The employer shall keep a copy of the LCA application and appropriate employment and wage records supporting the validity of the statements made in its LCA application and shall make this information available in the event that the U.S. Department of Labor or the U.S. Immigration Service requests it.

There are additional job posting requirements or “attestations” imposed on employers that are H-1B dependents. The guideline established by the Immigration and Nationalization Act (INA) below determines that an employer is H-1B dependent if:

• The employer has a total of 1 to 25 FTE’s (Full-time equivalent employees), and employs 7 or more
  H-1B employees.
• The employer has a total of 25 to 50 FTE’s (Full-time equivalent employees), and employs 12 or more H-1B employees.
• The employer has a total of 51 or more FTE’s (Full-time equivalent employees), and 15% or more of those employed are H-1B employees.

Note: H-1B employees that have a minimum of a Master’s degree or earn U.S. $60,000 or more, exempt their employers from these additional job posting requirements or “attestations”.

What Documentation Do I Need for an H-1B Visa?

The following documents must be presented to the U.S. Immigration Service with their English translation. It is cost-effective and therefore recommended to our clients that they bring these documents translated to our office:
Documentation needed from Employee/Beneficiary:

• Birth certificate
• Copy of passport, current visa, and your I-94 form (if you received one when you entered the U.S.)
• Copies of university transcript(s)
• Copy of your résumé
• Copy of any educational certificates or diplomas
• Letter from American sponsoring employer with offer of employment, including position and salary offered
• Not required but good to have, are letters of recommendation from:
  • 1. present employer
  • 2. previous employer (if possible)
  • 3. previous instructors/professors (if possible)

Documentation needed from Petitioner/Employer sponsoring the H-1B visa:

• A job description outlining duties and responsibilities and minimum experience and education required for position, that establish a requirement for a bachelors’ degree or greater for its performance
• Current financial statements (balance sheet and income statement or tax returns) that demonstrate the ability to pay the employee the prevailing wage for the position offered
• Address, telephone, and fax numbers
• Tax ID number
• Name and title of direct supervisor
• Description of their business and the business date of inception
• Number of current employees at company
• Number of current employees with H-1B visas at sponsoring company
• Any marketing material describing the employer and its business

What is the Process for an H-1B Visa Like?

A new process is underway for H-1B cap visas for the fiscal year 2021 (FY 2021).  Employers applying for H-1B visas and their representatives may create accounts starting on February 24^th, 2020, and will be required to register each prospective beneficiary for the lottery for an nonrefundable fee of $10.00, starting at noon ET on March 1, 2020 through March 20^th 2020.  The lottery selection will be done after the registration period closes, so it is not required to register on March 1^st.  If a registration for a prospective beneficiary is selected for an H1b Visa, then the company will be able to submit a complete application.  Below are the three stages for submitting a complete H-1B visa application.

Stage One:

Retrieving the prevailing wage from the Bureau of Labor Statistics (1 day)

Stage Two:

Obtaining approval of the labor certification, form ETA 9035 by the U.S. Dept. of Labor (Approximately 1-4 weeks)

Stage Three:

Filing and obtaining approval of the H-1B visa application, consisting of forms: I-129, I-129 H and I-129 W (Approximately 60-180 days). In certain circumstances, the USCIS may issue and RFE (request for further evidence) requesting additional documentation or evidence to support application. In the latter case, we will work with the client to provide the additional information to the US Immigration Service and we will prepare a response with the appropriate analysis and legal argument. This last scenario would increase the amount of time required to complete the process and may also increase the legal fees due, depending on the amount of additional work required.

Note: Time estimates vary depending on the volume and processing times of the different U.S. Immigration Service centers.

What are the U.S. Immigration Service filing fees?

The USCIS filing fee for an I-129, an Employment Fund Fee depending upon size of the company ($750.00 if company has 25 employees or less; $1,500.00 if the company has more than 25 employees–except for some non-profit research institutions), a visa fraud fee of $500.00 (for an initial visa not a renewal), a Public law 111-230 fee of $2,000.00 (applies to companies with more than 50 employees & more than 50% of employees in H1B status, except if the company is renewing the visa for a current employee) plus the fee for an I-907 if we will be requesting premium processing.

Click below links to verify the U.S. Immigration Service fees as these change regularly:
https://www.uscis.gov/forms

What are the Fees of our Boston Immigration lawyers to Petition for the H-1B Visa?

Click here to learn more about our immigration legal fees.
Click here if you would like to come in for an initial consultation with one of our immigration attorneys in Massachusetts.

Where can I get more Information?

FAQs (Frequently Asked Questions) on H-1b visas

Eligibility for H-1B visa

H-1B Fiscal Year (FY) Cap Season

Premium or fast processing of H-1B visas