Start Preparing Now to File for your H-1B Visa –Specialty Occupation Work Visa for Professional Employees [Feb 2014]

by Desmond P. FitzGerald

Dear friends,

Every beginning of the year reminds us it is time to start getting prepared to file your H1b visa petition on the 1st of April (the earliest they are accepted each year), as otherwise you run a greater risk of the application not being accepted by the USCIS.  To be ready for this filing date, it is important that you obtain the prevailing wage and file the labor certification promptly, as it can take several weeks to get approved.  If you or your employer need help with the filing of an H1b visa application, please call our office as soon as possible and make an appointment (617-523-6320, ext. 0) as this gives us the time to make sure that everything in the case is in order, to improve your chances of getting the visa approved.  We can also make a telephonic appointment with your employer if he/she has any questions about sponsorship of this visa.  The following is a list of Frequently Asked Questions we receive about filing H1b visa petitions:

1. Do I qualify to file for an H1b visa?

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

2. Why is it important to apply on April 1st (the first day the USCIS accepts them), for the H-1B visa?

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. In the past, H-1B visas have ran out early in the year (many times in the first days—in 2013 by April 5th), so it is suggested that you apply as close to April 1st, to have a higher chance of there being visas available. 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. Check USCIS on H-1B Fiscal Year (FY) 2014 Cap Season

3. What is the USCIS standard for approving an H1b visa?

The standards that the USCIS uses to approve an H1b visa are the following:

  • That the job being offered is a professional job which requires an a 4 year college degree (or it’s equivalent in job experience) in order for the duties to be performed,
  • That the employer is paying a wage that has been determined to be the prevailing wage in the industry within the geographical location where the job will be performed,
  • That the individual has the required education (or the equivalent in work experience) necessary to perform the job,
  • That the person is in lawful immigration status if they are present in the US

4. If I get an H1b visa, can my wife or husband work in the US?

The H1b visa, unlike an L1 visa and other non-immigrant visas, does not allow other family members, under the H4 derivative visa status, to work in the US. If a spouse desires to work in the US, he/she must obtain independent work authorization through his/her own employment sponsorship or a different type of visa if they fulfill the visa’s eligibility requirements. See the immigration section of our site which provides eligibility requirements and information about different types of visas.

H1-B Visas FAQ

5. Can my children attend public school in the US?

Yes. 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.

6. What documents do I need?

The following documents must be presented to the U.S. Immigration Service with the H1b application and their English translation. In order to save costs, we recommend to our clients that they bring these documents translated to our office:

  • 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:
    • present employer
    • previous employer (if possible)
    • previous instructors/professors (if possible)

7. What documents does my employer need to provide?

The following documentation is required from an employer sponsoring an 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

For more information on H-1B visas and fees, please visit our H-1B web page.

8. How long does the H1b application process take?

Time estimates vary depending on the volume and processing times of the different USCIS Service centers.

During the application process, there are three major stages that involve the following steps (estimated durations are in parenthesis):

  • Retrieving the prevailing wage from the Bureau of Labor Statistics (1 day)
  • Obtaining approval of the labor certification, form ETA 9035 by the U.S. Dept. of Labor (Approximately 1-4 weeks)
  • Filing the H-1B visa application, consisting of forms: I-129, I-129 H and I-129 W (Approximately 60-180 days)

There is currently a premium processing option, which for an additional $1,225 in filing fees, the U.S. Immigration Service will commit to processing the application within 15 business days from receipt of the application. Processing the application does not mean that there will necessarily be a final decision after 15 business days, but rather that there will be a response after this time. This response may be a visa approval, a denial or it may also include a request for additional documentation from the petitioner/employer. Click here for more information on premium processing.

For answers to more FAQs on H-1b visas or if you already have an H-1b visa and are interested in becoming a US resident read Part II or this newsletter


Desmond P. FitzGerald and
The FitzGerald & Company team

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