H1B VISAS

What is a “Speciality Occupation?”

What is an H-1B visa?

H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. Our H1B Attorneys located in New York have extensive experience in H1B filings.

A Specialty Occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are Specialty Occupations.

What is the annual limit on H-1B visas?

The current law limits, or caps, the number of H-1B visas available for issue each year to 65,000. Of these, the first 20,000 are reserved for applicants who have a Master’s Degree or higher. If the Master’s Degree cap is not reached, the remaining available H-1B visas will be issued to the general H1-B applicant pool. There are other statutory exemptions to the H-1B cap, including, but not limited to, applicants who are or will be employed by an institution of higher learning, a nonprofit research organization or a government research organization.

What if an alien’s circumstances change?

As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

How long can one be in H-1B status?

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or 365 days or more have passed since the filing of an EB immigrant petition.

Who can an H-1B employee work for?

H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

Can an H-1B visa holder travel outside the United States?

Must an H-1B Alien work at all times?

Yes. An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.

As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

What is the April 1, 2017, filing deadline?

Employers who intend to employ a foreign national on an H-1B visa for FY 2017 must begin the process now so that they may timely file the H-1B visa petitions on April 1, 2017, the date that filings for initial H-1B visas are accepted by USCIS. A H-1B petition filed by April 1, 2017, if approved, will allow the employee to begin working on October 1, 2017. Since the H-1B visas has become more and more complex and filing timely is crucial, U.S. employers who intend to employ foreign workers on H-1B visas are advised to consult a knowledgeable and experienced U.S. immigration attorney.

Can an H-1B Alien intend to immigrate to the United States?

Yes. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as “dual intent” and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.

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