THE H1B VISA REQUIREMENTS PAGE

USCIS has proposed a new rule on December 3, 2018 to require petitioners seeking to file H-1B petitions for cap-subject H1B workers to register prior to filing an H-1B petition. We will update the procedure for employer registration once USCIS issues the final rule.

H1B Visa Requirements

h1b visa requirementsWelcome to our H1b visa requirements section. Here we will try to explain to you what the H1B visa requirements are and H1B visa is all about and how it works. There are books and books written on the visa and the issues are endless. We have tried here to provide you the most important and useful H-1 visa information you need to know and can instantly use. If you have questions on the H1 visa, feel free to call us for a consultation.

The H-1B visa is a visa under the Immigration and Nationality Act, Section 101(a)(15)(H) that allows for U.S. employers to temporarily employ foreign workers in a specialty occupation for generally a maximum of 6 years.

Employer:
To qualify for the H-1B visa, first, the employer must be a valid, operating U.S. entity. Second, there must be a valid employer-employee relationship. A valid employer-employee relationship is one in which the employer may hire, pay, fire, supervise, or otherwise control the work of the employee. The employee must be an employee on the company’s payroll (W-2 employee), and cannot be an independent contractor (Misc 1099 payments).

In certain cases, where an H-1B employee would be placed at third-party locations (at a work site that is not operated by the petitioner/employer, i.e. consultants), the employer must satisfy the right to control through the following criteria:
• That the petitioner supervises the H1B worker and is the supervision off-site or on-site.
• If supervision is off-site, how is the supervision conducted (weekly calls, routine reporting to main office, site visits).
• That the petitioner has the right to control the work of the H1B worker on a day to day basis if required.
• That the petitioner provides the tools/equipment necessary for the H1B worker to perform the duties.
• That the petitioner hires, pays, and has the ability to fire the H1B worker.
• That the petitioner conduct evaluations of the H1B worker including progress or performance reviews.
• That the petitioner claims the H1B worker for tax purposes.
• That the petitioner provides employee benefits to the H1B worker.
• That the H1B worker uses the employer’s proprietary information to perform the duties.
• That the H1B worker produces an end-product that is directly linked to the petitioner’s line of business.
• That the petitioner has the ability to control the manner and means in which the work product of the H1B worker is accomplished.

Specialty Occupation:

A specialty occupation is one that requires at least a 4-year bachelor’s degree or its equivalent and the degree must be related to the occupation. The position must meet one of the following four criteria to qualify:

• A U.S. bachelor’s degree or its equivalent is normally the minimum application requirement for entry into the position;

• The duties of the position offered must be so complex or unique that only an individual with the bachelor’s or higher degree can perform the duties;

• The employer must typically require a degree for the position; or,

• The duties of the job are so specialized and complex that the attainment of a U.S. bachelor’s degree or higher is required to perform the duties.

H-1B Beneficiary Requirements:

The H-1B visa beneficiary (H-1B worker) must meet one of the following four criteria to be eligible:

• Hold a U.S. Bachelor’s degree from an accredited US Institution in the field related to the offered position;

• Have a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation. Obtain a U.S. Bachelor’s degree equivalence related to the field of employment from an evaluation service that is able to provide evaluations from professors that have the authority to grant US college level credits.

• Hold a registration, certification, or unrestricted state license authorizing full practice of the specialty occupation;

• Possess expertise in the specialty occupation through related positions and have training, education and/or experience in that specialty. Experience in the chosen field of specialty can be considered equivalent to college education. Every 3 years of industry experience equates to 1 year of college or university. Again, the experience must be evaluated from an institution that has the ability to grant U.S. college or university level credits.

The H-1B2 Visa is for researchers and development project workers for the DOD (Department of Defense) cooperative research and development or co-production project under a government-to-government agreement administered by the U.S. Department of Defense. The job must require a U.S. bachelor’s or higher degree (or its equivalent).

The H-1B3 if for Fashion Models who have distinguished merit and ability coming to work or provide services that require a fashion model of prominence.

TEMPORARY INTENT AND DUAL INTENT OF THE H1:

As with other visas, the H1b requirements mandate that you must be entering the United States temporarily and not for permanent work. However, the H1B visa is part of a group of visas that allow for ‘dual intent’. In other words, you can enter on a temporary basis with the visa and at the same time have the same employer or a different one apply for a Green Card on your behalf, which, when completed, would allow you to live in the US permanently.

The dual intent situation permitted under the H1B visa requirements is quite unique in that you must enter with the intent of working in the United States for a temporary period-of-time. However, that time-period, which is a maximum of 6 years, can be extended if you have filed a PERM/Labor Certification and an approved I-140 petition, or have filed a case for a Green Card/labor certification that has been pending for 365 days or more. So, in reality, many clients enter and don’t ever leave, as they apply for a Green Card. Moreover, many people enter as students under the F1 student visa and then during OPT or Optional Practical Training (a period during which you are allowed to work for a US employer) locate an H1B visa sponsoring employer, and then a Green Card employer willing to sponsor for the Green Card. A common question people ask is whether their H1B sponsoring company must also sponsor the Green Card and the answer is no; they can be two different companies and often are.

H1b Visa requirements: H1 FILING FEES

h1b visa requirements
There are 3 sets of filing fees the employer must pay for the H1B visa case: The I-129 fee is $460. Additionally, there is the $750 ACWIA training fee if the company has 25 or fewer employees or $1500 if more than 25. Third, there is a fraud prevention and detection fee of $500.

In addition, if the petitioner employs 50 or more employees in the U.S. and more than half of those employees are in H-1B, L-1A, or L-1B status and are filing a new petition or transferring from another employer after December 18, 2015, the employer must pay an additional fee of $4,000.

Fourth, if the employee is abroad, there are consulate fees, which are minor compared to these (but additional). The fees are payable to the Department of Homeland Security. The fraud prevention fee has to be separate; the others can be combined. Certain educational institutions are exempt from the $1500 fee. Nonprofits must still pay the fee.

Additionally, if you want a rapid answer on the approval or denial, you can pay the $1,410 Premium Processing fee to the government and you will receive a response in 15 calendar days.

H1b Visa requirements: LABOR CONDITION ATTESTATION

When an LCA [Labor Condition Attestation] (see below) is prepared, it will inform us of the ‘Prevailing Wage’ for the county in which the worker will work. The person must be paid 100% of that wage determination. In other words, for an H1 visa case, the worker must be paid what others are paid for that type of work in the county in which they live. An employer cannot simply make up the wage the company wishes to pay.

LCAs are required of all applicants, including doctors, fashion models, and all other workers.

The LCA must be certified and signed by the employer prior to filing the H1B petition.

H1b Visa requirements: PART-TIME H1B VISA

A part-time H-1B is a consideration, especially where the company is smaller in size. Often, employers are not prepared for the fees involved in an H1 visa case, let alone the wages. If the wages are much more than an employer is prepared for, an alternative is to simply hire the worker for less hours a week. A very handy feature of the H1 visa is that a person can work part-time. Something to be careful of here is that if the wages are too low, the case may not be approved as the worker may not make enough money to afford the cost of living in a particular city.

This is more of an issue where the position is one of low wages than of higher ones. In other words, if someone makes $15.00 an hour but only works 20 hours a week, it’s more of a challenge than a person who makes $90,000 a year but only works half-time, so he or she is still earning $45,000 and can support themselves while living in the United States.

H1b Visa requirements: H1 ANNUAL CAP

As you many know by now, there is an annual cap of 65,000 visas (less up to 6,800 that are set aside for the U.S.-Chile and U.S.-Singapore free trade agreements), plus and additional 20,000 available for people who have a Master’s degree or higher from a U.S. institution of higher education. The good news is that anyone who received a visa in the past 6 years cannot be counted against this numerical H-1B visa cap.

H1b Visa requirements: H1 VISA APPLICATION DEADLINE

The application deadline is, for all purposes, April 1st. This is for people who want to work as of October 1st of this year. If you haven’t followed the H1b visa trail lately, the application period begins on April 1st, but USCIS receives so many applications that the quota is met within a day. This is where the term h-1 lottery arose. They had to choose a certain number of h-1 visa applications from the pool of available applicants.

If you are certain you want an H1 visa, then apply for it April 1st. There is no benefit in waiting. If you are not sure, then you can take your time, only you know how you feel about it and how important it is to you.

USCIS has proposed a new rule on December 3, 2018 to require petitioners seeking to file H-1B petitions for cap-subject H1B workers to register prior to filing an H-1B petition. We will update the procedure for employer registration once USCIS issues the final rule.

H1b Visa requirements: ONLY ONE H1B Visa PER PERSON

An employer is not able to file more than one petition for an H1 visa beneficiary, In other words, one H1B visa application per person.

H1b Visa requirements: H1 VISA PORTABILITY

h1b visa requirements
The H1B offers portability. In other words, an H1B holder may transfer to a different H1B sponsoring employer. The new employer must file a legitimate new H-1B petition, file before the expiration of authorized stay, and no illegal work has been conducted (i.e. without authorization). The employee can begin working for the new employer as soon as the H1B application has been received by USCIS (as it may take time for the case to be adjudicated). In order to port, or transfer your visa, you will have to file a completely new case for the new position.

Consultation: (877) 223-4684
From outside the US: (619) 677-5727   •   From Canada: (877) 223-4684.
All numbers go to the same line.
From Italy: 0689385848   •    From England: 2033710984

If the applicant has a criminal record, a waiver may have to be filed: Click here for more info
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