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H-1B

H-1B

These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in these FAQs without first seeking advice from a qualified attorney.


What are the basic requirements for H-1B status?

The position at the company must require at least a Bachelor’s degree or its equivalent (3 years experience =1 year of Bachelor’s level education) in a specialized field, and the potential employee must have the Bachelor’s or equivalent in that specialized field.


Must the employer place ads and prove that there are no U.S. workers who can fill the H-1B position?

No, this is not generally required for the H-1B.


What is the difference between transferring an H-1B visa and sponsoring a new one?

As far as the work and time required by the employer and/or immigration counsel, as well as the basic visa requirements, there is no substantive difference in transferring versus sponsoring a new visa. However, two things to consider for a new H-1B visa application are:

  1. There needs to be an H-1B number available for a new visa, and
  2. The H-1B applicant may begin to work for the sponsoring employer only after the petition is approved in the new-visa context.

H-1B visa numbers are limited to approximately 85,000 in any one year. When the demand for new visas exceeds the supply, there may be a lottery to determine who receives a new H visa. In contrast, for H-1B visa transfers, an H number has already been assigned, so in moving from one company to another, there is no need to secure a new H number. Also, an H transferring employee may begin to work with the new employer immediately upon filing the new H petition rather than waiting for an approval, which can take several months after filing.


How much time will it take someone at the company to do the work necessary for an H-1B petition?

If the person at the company does not have any exposure to U.S. immigration law, it could take 15- 25 hours to figure out the various parts of the process, complete the necessary government registration and postings, and comply with the government’s instructions. It is a complicated process and one that requires expertise. If an  experienced immigration attorney is retained to work with the company respresentative, then the employer’s involvement on the initial H could be approximately 5-10 hours for the first H petition, and on repeat H-1Bs could be as little as 1 hour or less.


What does it take to make the H-1B visa process go smoothly?

Engaging counsel who knows the process — and has systems in place for moving through the necessary requirements and gathering the required information and documentation — will make it go more smoothly. Also, having one person at the employer charged with managing the visa process who is able to partner with counsel will improve the chances of success.


 What factors make the process difficult?

Some factors that will delay the process or make it more challenging and costly are:

  1.  if a transferring employee is at the end of the six year maximum period of time permitted in H status (in the fifth year without a permanent residence application on file)
  2. if the employee has not been working for more than a week but has remained in the US in violation of H status
  3. if the employee has previous violations of immigration status — worked without authorization, not worked for the authorized employer, failed to maintain valid student status
  4. if the government’s stated prevailing wage for the position is significantly higher than what the employer is willing to pay,
  5. if the degree of the foreign national is not related to the position or the person does not have a degree, just many years of experience, or,
  6. if the person has been in the US on a J visa that requires them to return to their home country for 2 years.

How long does the process take?

If you are working with someone with immigration expertise, from initiating a case to filing will take approximately 3 - 4 weeks depending on how quickly the requested information and documentation is provided by the employer and potential employee. For someone without immigration expertise, it could take six weeks or longer. The USCIS generally* takes 2 - 4 months to process H transfer petitions. That can be shortened to 15 days if the USCIS expedite fee of $1,225 is paid.

*processing times can vary.

 

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