H-1B Visa (Immigration) Lawyer in Boston for Professional Employees in Specialty Occupations

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 ^[1] for such a position in the location of employment.  Under an H-1B visa, 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 afterwards. 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, including fashion models.

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

Generally, a foreigner with at least a bachelor degree, or its equivalent in work experience which is required for a specialized or professional occupation, may be eligible for an H-1B visa (their dependents are eligible for an H-4 visa).  In addition, fashion models may also be eligible for H1B visa status.

To apply for an H1B visa as a specialty worker 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 at least a 4 year college degree (Bachelor’s Degree),
• A salary and working conditions that meet the prevailing wage standard for the  geographic area where you will be working,
• A bachelor degree or a combination of education and /or work experience which is the equivalent of a bachelor’s degree in a field of study directly related to the position.

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 (non-cap H-1b visas), available for employees of universities, government agencies and no-profit research organizations.

Starting in 2020, USCIS changed the procedure for identifying which H1b applications are processed because there is generally a higher number of applications (often more than 275,000) than the 85,000 available H-1B visas ^[2].

Do H-1B Visas Qualify for Premium Processing?

Premium processing ^[3] is generally an option for H visa petitions filed in the US.  For a premium processing fee, the U.S. Immigration Service commits to processing the H1b application within 15 business days from receipt of the application. This does not mean that there will necessarily be a final decision within 15 business days, but that there will be a response by this time. This response may be a visa approval, a denial of the visa or it may also be a request for additional evidence (RFE) ^[4].

Duration of an H-1B Visa

H-1B visas last for 3 years.

H1B Visa Renewal / Extension

In most instances an H1b visa can be renewed or transferred repeatedly, for a total of 6 years of validity. The visa holder may also apply for a Green Card or US permanent residency soon after applying for the H-1 visa (as a dual intent applicant). Extensions beyond 6 years, commonly known as 7th year extensions ^[1], are available for individuals for whom:

1). An LCA (Labor Condition Application – Form ETA 9089) was filed prior to the beginning of their 6th year of their  H1b visa status, and
2). This LCA is pending; or if it has been approved, there is a related I-140 (employment based residency visa petition) pending or approved.

In the event the H-1B beneficiary seeks alternative employment, they will need to transfer the H-1B visa. The H-1B holder / beneficiary 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 of the H-1b visa before starting work in a new job.

Family Benefits of an H1-B Visa

H-1B dependents (family members) can apply for  H-4 visas.  With H-4 visa status, family members can live and study in the U.S. as long as the H-1B or “primary” visa remains valid.

The spouse of a person with an H-1B visa can apply for work authorization (I-765) if they are present in the U.S. with an H-4 visa and if the H-1B non-immigrant spouse:

• Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker ^[5]; or
• Has been granted a 7th year extension H-1B Visa.

Are my family members eligible for H-1b Visa status, if I am under an E visa?

Employer Obligations when Sponsoring an H1-B Visa

• 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.
• Provide employment consistent with the conditions in the LCA and H1-B visa petition.
• 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 USCIS requests it.
• If the H-1B employee is terminated for any reason before their authorization to work in the U.S. expires, the employer is liable for the reasonable transportation costs for the immigrant to return to their last place of residence.
• The employer is prohibited from charging a terminated H-1B employee a penalty for leaving their employment prior to any agreed date.

There are additional job posting requirements or “attestations” imposed on employers that are H-1B dependent. The guideline below 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 (Full-time equivalent) employees, and employs 7 or more
  H-1B employees.
• The employer has a total of 25 to 50 FTE  employees, and employs 12 or more H-1B employees.
• The employer has a total of 51 or more FTE  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”.

Documents Needed for an H-1B Visa

The following documents must be presented to the U.S. Immigration Service with their English translation in support of an H-1 visas application. It is cost-effective and therefore recommended to our clients that they bring these documents translated to our office:
Documentation needed from Employee/Beneficiary of an H-1B visa:

• Copy of birth certificate (if requested)
• Copy of passport, current visa, and I-94 form (if you received one when you entered the U.S.)
• Copies of university transcript(s)
• Copy of résumé
• Copy of any educational certificates or diplomas
• Copy of any prior H-1B petitions filed with USCIS
• Letter(s) of recommendation may be required 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 detailed job description outlining duties and responsibilities and minimum experience and education required for the position, that establish a requirement for a bachelors’ degree or greater to perform the job.
• Employment offer letter including position and salary.
• Copy of tax records or similar financial records  that demonstrate the ability to pay the employee the prevailing wage for the job
• Employer Address, telephone, fax numbers, and email addresses of company officers involved in the H-1B petition
• Employer Tax ID number
• Name and title of direct supervisor
• Description of the employer’s business and the business date of inception
• Copy of Company’’s Articles of Organization issued by the state government
• Number of current employees at sponsoring company
• Number of current employees with H-1B visas at sponsoring company
• Copy of relevant marketing material describing the employer and its business

Process to Apply for an H-1B Visa

Since 2020, all potential H-1B Cap petitioner employers must complete a registration process that is open between March 1st and March 20th of each year.  Petitioners must first create an H-1B registration account which can be done as early as February 24th, then they must register each prospective beneficiary for the lottery for an nonrefundable fee of $10.00, starting at noon ET on March 1,  through March 20^th each year.

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. USCIS intends to notify the H1B lottery winners by March 31st each year.

Below are the three stages for submitting a complete H-1B visa application (estimated duration is in parenthesis).

Stage One:

Retrieving the prevailing wage from the Bureau of Labor Statistics for the position offered in the location where it will be performed (1 day).

The prevailing wage for a position may be obtained from the Foreign Labor Certification Data Center’s Online Wage Library ^[7] for prevailing wage determinations.

Stage Two:

Obtaining approval of the labor condition application (LCA), form ETA 9035 by the U.S. Dept. of Labor (Approximately 1-4 weeks), attesting to compliance with the requirements of the H-1B, H-1B1 or E-3 program.

In order to file an LCA the employer must be registered with the Foreign Labor Application Gateway System (FLAG System ^[8]) of the U.S. Department of Labor.

NOTE LCAs may not be submitted more than 6 months before the beginning date of the period of employment.

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 90-180 days).

In certain circumstances, the USCIS may issue an RFE (request for further evidence) ^[4] requesting additional documentation to support the application. If an RFE is issued, it is important to work with the attorney to provide the additional information to USCIS and to prepare a response with the appropriate analysis and legal arguments. This last scenario would increase the amount of time required to complete the process and 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 Costs to Apply for an H-1B Visa?

Click here ^[11] if you would like to come in for an initial consultation with one of our immigration attorneys in Massachusetts. ^[12]

Where can I get more Information on H-1B Visas?

• FAQs (Frequently Asked Questions) on H-1b visas ^[13]
• Rights of H-1B Workers ^[14]
• H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models ^[15]
• H-1B Fiscal Year (FY) Cap Season ^[2]
• Premium or fast processing of H-1B visas ^[3]