Foreign workers are essential to the economy of the United States. Each year, hundreds of U.S. companies seek to fill domestic employment gaps with highly skilled foreign professionals. H-1B workers are an important complement to U.S. workers, allowing companies to hire the best and brightest from overseas with jobs unable to be filled domestically.

In this guide, the team at Loigica, Attorneys at Law, provides an overview of how you can participate as a foreign skilled worker in this important visa program. The H-1B immigration process, is both detailed and time-consuming, requiring patience and accuracy. An immigration lawyer is essential to a successful outcome.

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1. A History of the Program

Beginning in 1990, the U.S. Congress created a visa that allows domestic companies to petition for highly skilled foreign professionals to work in “specialty occupations.”
Overseas applicants must possess at least a bachelor’s degree or equivalent certification related to the open job position in order to participate.

From the start, American companies in engineering, mathematics, healthcare, science, and technology have all benefitted from opening positions to foreign professionals in the United States. At the same time, professionals seeking to deepen their resumes, spend time in the United States, and make a positive impact on global society have benefitted from the H-1B program. The positive effects of this visa on both sides of the process cannot be understated – nor it’s benefit to the United States economy.

Since the visa’s creation, Congress has struggled to find a cap number that remains stationary. In recent years, open slots have been filled in just days after positions open up, showing the demand for H-1B professionals is indeed strong. With the ever-continuing desire to protect jobs for domestic citizens first, these cap numbers fluctuate annually, with a dramatic drop occurring in recent years under the Trump Administration.

As the United States continues to grow it’s influence in the global economy, the H-1B visa will remain an important avenue for skilled professionals to work inside the country in a legal manner.

2. Getting Started

In order to help you understand the main questions others have when beginning their H-1B visa journey,
we’ve compiled a list of “frequently asked questions” to help guide you.

Q : What is an H1-B Visa?
An H-1B visa is temporary, allowing employers to petition for an employee to fill a specialty
occupational position inside the U.S.

In order for an employer to sponsor an employee for an H-1B visa, they must prove their ability to hire, pay, fire, supervise, and otherwise control the workflow of the employee

Q : What Are Examples of “Specialty Occupational Positions” That Might Qualify?
Any jobs that require theoretical or technical expertise in specialized fields usually apply. The most popular industries taking part in the H-1B program include organizations in IT, architecture, engineering, finance, mathematics, medicine, or science.

Any professional level job usually requiring a bachelor’s degree or higher can qualify as a specialty occupation. If you do not have a bachelor’s degree or higher, you may be able to show degree equivalence through work experience and/or other qualifications.

Q : What are the general criteria to obtain an H-1B Visa?

For an employee to qualify for an H-1B visa, they must meet the following criteria:

  • Possess a bachelor’s or higher degree from an accredited college or university in the U.S. If the degree is from an overseas institution, the criteria must be equivalent to a similar degree from an accredited, domestic school.
  • Own an unrestricted state license, registration, or certification which authorizes the employee to fully practice the specialty occupation.
  • Have documented education, training or professional experience in the occupation that is equivalent to a degree from a post-secondary institution.
Q : What documents do I need for an H-1B Application?

Employers must provide the following:

  • The organization’s legal name
  • Any names your organization does under “Doing Business As” (if applicable)
  • Your Employer Identification Number (EIN)
  • The primary office address of your organization (address must be located in the United States )

The potential candidate must provide the following:

  • The candidate’s legal name
  • Their degrees and certificates from education institutions (if the candidate possesses a master’s degree or higher from a U.S. institution of higher education, they are eligible for the advanced degree exemption under INA 214(g)(5)(C)). Consider applying for this if it applies!
  • The candidate’s date of birth
  • Their country of birth
  • Their country of citizenship
  • A valid passport number
Q : Who Is Allowed to Accompany an H-1B Visa Holder When They Relocate to the U.S.?
H-1B visa holders can bring the immediate family (a spouse and unmarried children under 21 years old). These family members must seek admission under the H-4 nonimmigrant visa as dependents.

An H4 Visa holder is allowed to reside in the US as long as the H-1B visa holder holds legal status.

Q : How long does an H-1B Visa last?
H-1B visas are initially awarded for up to three years and are renewable for an additional three years. Normally, the maximum time a foreign national can reside in the U.S. under H-1B visa status is six years.

Expired H-1B visa holders must leave the U.S. for at least one year before applying again for renewal status.

Q : What if I Spend Time Outside the U.S. While Holding an Active Visa?
Only time spent inside the U.S. counts against the H-1B visa’s six-year limit. Any time spent outside the country during your visa period can be “recaptured” to lengthen your total stay.

You can apply to recapture full days (not partial days) spent outside the U.S. during the visa’s effective dates. If you are successful in recapturing time, it automatically applies to your immediate family
(holding H-4 dependent status).

Q : What Happens If I Resign or My Employer Terminates the Position?
If you voluntarily resign or your position is terminated, then you must find another employer sponsor, change your visa status, or return to your country of origin.

Fortunately, you do have up to 60 days to handle unexpected changes in employment while legally remaining in the United States.

3. Renewing Your H-1B Visa

When H1B holders “renew” their visa they are simply extending their stay in the US to continue
working the same employer for an additional three years. To extend their H1B stay, employees and employers need to prepare an H1B petition with a new LCA, and new I-129.

There are no shortcuts! The advantage of newing the H1B visa is that the candidate is cap-exempt, and does not subject to the lottery.

Nonetheless, the following information is still needed when filing the extension petition:

Employers must provide the following:

  • The organization’s legal name
  • Any names your organization does under “Doing Business As” (if applicable)
  • Your Employer Identification Number (EIN)
  • The primary office address of your organization (address must be located in the United States )
  • Your organization’s contact person (authorized signatory) will need to provide their legal name, title, and contact information (daytime phone number and email address).

The potential candidate must provide the following:

  • The candidate’s legal name
  • Their gender
  • Their degrees and certificates from education institutions (if the candidate possesses a masters degree or higher from a U.S. institution of higher education, they are eligible for the advanced degree exemption under INA 214(g)(5)(C)). Consider applying for this if it applies!
  • The candidate’s date of birth
  • Their country of birth
  • Their country of citizenship
  • A valid passport number

One Year H-1B Extensions

H-1B status is originally granted for a maximum of three years. It can then be renewed (“extended”) for an additional three years. In general, the length of time a foreign national is permitted to stay in the United States with a H-1B is six years. H-1B holders who have a Labor Certification Application that has been pending beyond a full year can extend the visa past the 6-year maximum. This takes place in one year increments.

A foreign national can apply for a H-1B visa extension beyond six years in the single year intervals noted above. However, the PERM petition or I-140 must have been filed at least 365 days prior to the 6-year
expiration date. Extensions can stretch until the point in time that a final decision is made on the candidate’s pending permanent residence.

Three-Year H-1B Extensions

A foreign professional can apply for an extension status upwards of three years if he has an approved I-140 petition for a green card This route allows the beneficiary to stay in the United States while waiting for priority dates to be current.

Recapture

H-1B holders who travel outside of the United States for extended periods of time have the potential to recapture time spent abroad in order to obtain the H-1B visa extension. He can request the extension if he traveled outside of the country when the visa was valid. He must submit dates of exit/re-entry, copies of I-94, and related stamps.

The “Request for Extension” Process

The request for extension is similar to the initial H-B petition in that there are required filing fees, a new employer letter, the supporting documents listed above, new LCA, new H forms and H1-B approval notice on the original petition. Yet only one copy of these documents is required in the extension package. The request can be submitted no earlier than six months prior to the date on which the H1-B status will expire.

Understanding the Competitive Landscape

In 2019, more than 200,000 people applied for an H-1B visa for skilled workers. Out of that number, only 85,000 were accepted, making the selection rate just 42.5%.

As the US economy continues to improve, competition for spots will continue to grow in 2020. Make sure to maintain proactive communication with your employer to ensure a smooth, punctual renewal process.

4. H-1B Visa Alternatives

It is disappointing to discover that you may not qualify for work under the H-1B Visa Program. The time and cost associated with migration are stressful enough without legal roadblocks in your way.
However, the good news is that other work-related visa programs allow you to take advantage of the benefits the U.S. has to offer:

F-1 Optional Practical Training (OPT) Extension or F-1 Curricular Practical Training (CPT)

F-1 Student Visa holders already in the US can remain on F-1 status while receiving work authorization.

Individuals who have STEM—science, technology, engineering, mathematics—degrees can apply for an F-1 Optional Practical Training (OPT) extension to stay for an additional 24 months by working with a U.S. company.

If you did not complete a STEM degree, then you have the opportunity to apply for the F-1
Curricular Practical Training (CPT) program, which allows you to work in a field related to your studies in the U.S. The eligibility and availability of this program varies by state and school

O-1 or P-1 Extraordinary Ability Visas

Workers who have extraordinary abilities in education, business, medicine, science, or the arts are a perfect fit for the O-1 or P-1 Extraordinary Ability Visa program.
Critically acclaimed artists, royals, journalists, performers, and more are eligible to apply. The O-1 visa is designed for individuals, while a P-1 visa is given to a group of collective talents.

L-1 Intracompany Transferee

The L-1 Intracompany Transferee visa allows international companies abroad to transfer employees for work in their U.S. offices. It is an excellent option for companies who want to establish or broaden their U.S. presence while protecting nationals currently employed abroad.
In general, individuals already living in the U.S. do not qualify for an L-1 visa.

Permanent Residency

In some work arrangements, the U.S employer will hire an employee on H-1B visa status with a green card sponsorship in the future. However, it is possible to receive a green card o

If you have the following from a country, other than India or China, you can apply for a green card:

  • Master’s degree,
  • —OR—
  • Bachelor’s degree with five years’ experience
    The reason why the process is not fast-tracked for India and China is due to the significant backlog of applications. As for December 2019, the backlog was 800,000 from these nations.

5. Why Partner With An Immigration Attorney?

Some applicants and sponsors forgo the knowledge and experience of an attorney to save money. It is a risk. There are situations where it is helpful for the employer and employee to have legal assistance when completing the H-1B Visa petition.

Having an immigration attorney on your side can help by:

  • Answering questions and guiding the process
  • Discussing expectations for lottery selection
  • Accurately completing the Labor Conditions Application
  • Filing the H-1B Visa Petition with supporting documentation
  • Strategically responding to USCIS evidence requests
  • Following up on petition reviews and lottery results

At Loigica, PA, we have extensive experience working for both applicants and companies.

About Our Firm

Loigica is a bilingual, multicultural immigration law firm located in the heart of Miami, with offices in Bogota and Barcelona. We are immigrants for immigrants, who will always have an experienced, compassionate attorney on your case to ensure the best possible outcome.

With deep experience and knowledge on how Latin American businesses operate, we’re able to offer cutting edge legal counsel for business immigration, start-ups, and international development opportunities.

Over the years, we have worked with foreign investors, tech companies, app developers, and a wide range of other organizations. Reach out to us today to help us make your dream of moving to
America a reality.

Request a free consultation with our legal team today by calling +1 (786) 292-9704 or sending us a message through our private contact form.

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