Applying for an H1-B Visa in the U.S.

If you have a job offer in the U.S., then a H1-B visa may be the visa you need. This is a temporary visa that applies to employers who are petitioning for their employees to work in the U.S. in a specialty occupation. At Loigica, our experienced immigration attorneys in Miami help clients apply for the H1-B transfer visa throughout the U.S., utilizing cutting edge immigration strategies to ensure an optimal outcome. Take a moment to learn more about the H1-B visa and contact us for application advice and assistance.

What is an H1B Visa?

The H-1B visa applies to employers aiming for an employee to work int he U.S. in a specialty occupation (this could be services of exceptional merit, a fashion model of distinguished ability, cooperative research, etc.) An employee-employer relationship must be established (determined by whether or not the employer can hire, fire, pay, or supervise the employee.)

Qualifications:

To file for the H1-B visa, a labor condition application is required, and the employer must file form ETA 9035 with the form I-129 (petition for non-immigrant worker). However, the H1-B2 visa doesn’t require a labor condition application.

The family of an H1-B visa holder can accompany the holder, seeking admission under the H-4 non-immigrant classification.

Other categories include the H1-B2 and H1-B3 (for DOD Researcher and Development Project Worker and Fashion Model, respectively.)

Requirements:

Requirements to make an application include:

  • Minimum of a bachelor’s degree for the employee (or the foreign equivalent or higher of a U.S. bachelor’s degree)
  • A job so complex or unique the employee must have at least a bachelor’s in a related field to the position
  • A bachelor’s degree is generally required for the position
  • The employee must have all local and state registrations and certifications to fully practice the occupation
H1B Visa

Coming to America:
Your Ultimate Guide to Understanding the H-1B Visa System!

H-1B Visa Case Studies

H1B Visa
A litigation law firm planned to file an H1B for a strong performing Chinese national who had recently graduated with a law degree from an American university but who would not been admitted to the local State Bar in time for filing the H1B.

THE SOLUTION:

Loigica filed and Labor Condition Application under the ONET Code of “Paralegals and Legal Assistants” and argued that the job duties were so specialized and complex that only a person with J.D. or an L.L.M. would have the requisite knowledge to perform the duties.

THE RESULT

The USCIS granted a three-year H1B to graduate.

H1B Visa
A prominent national paincare center wished to hire a young doctor under its fellowship program on a part-time basis.

THE SOLUTION:

Loigica filed a part-time labor condition application, and classified the fellow under the ONET Code “Physicians and Surgeons, All Other” category.

THE RESULT

The USCIS granted a three-year H1B to the young doctor. Once he completed the program the employer filed an amendment to hire the young doctor as a full-time physician, and again the USCIS granted a new three-year H1B to him.

H1B Visa
A west-coast LED technology company moved its operations to the east-coast 1.5 years after its top employee had been approved an H1B to work at the old office.

THE SOLUTION:

Loigica prepared a new Labor Condition Application providing the new work-site location, an updated prevailing wage corresponding to the new location and kept the job title and ONET code the same as the previous H1B. Loigica argued that the only condition that had changed was the work location which often growing companies must do

THE RESULT

The USCIS granted another three-year H1B to the top worker.

Common Questions

See some common questions and answers below, or call us at 786-292-9704

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.

What is the general criteria to obtain an H1-B 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.
What are the H1-B requirements for specialty occupation?

H-1B visa applies to employers petitioning for employees to work in the U.S. in a specialty occupation. The following are some of the requirements:

  • Bachelor’s degree or higher degree (or its equivalent, including foreign degrees) is the minimum entry requirement for the position.
  • The job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position.
  • Employer normally requires a degree or its equivalent for the position
  • Petitioning employer has some degree of control over employee
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
What Are Examples of “Specialty Occupational Positions” That Might Qualify?

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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 )
  • 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 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 
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.

How long does an H1-B 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.

Can the H1B status be extended beyond the six-year maximum?
Under certain circumstances, extensions beyond the six-year limitation are possible. Such circumstances are:

  • If a PERM labor certification or I-140 was filed on behalf of the employee at least 365 days prior, H1B extensions may be obtained in one-year increments.
  • If an I-140 petition was approved on behalf of the employee, H1B extensions may be obtained in three-year increments as long as the priority date is not current.
How Do I Renew My 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  

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.

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).

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.

Are There Employment Visas to Consider Besides the H-1B?

Other work-related visa programs allow you to take advantage of the benefits the U.S. has to offer. These include:

  • H-3 Trainee visa
  • F-1 Optional Practical Training (OPT) Extension 
  • F-1 Curricular Practical Training (CPT) Extension
  • F-1 Student Visa 
  • O-1 or P-1 Extraordinary Ability Visas
  • L-1 Intracompany Transferee Visa
  • Permanent Residency – via Permanent Labor Certification
Why Should I Invest in an Immigration Attorney to Help With the Visa Process?

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, Attorneys at Law, we have extensive experience working for both applicants and companies. Speak with one of our multilingual immigration lawyers in Miami for more information. 

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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