The H-1B is a temporary (non-immigrant) employer-sponsored visa for a foreign worker in a “specialty occupation.” The H-1B can be issued for up to three years, and then extended for an additional three years, for a total of six years in H-1B status. Thereafter, an employer must have started the green card process on behalf of the H-1B employee for extensions beyond this period. There is for most employers a “cap” on the number of new H-1Bs available for most petitions. The employer undertakes certain obligations when sponsoring an H-1B employee.
Caroline Ostrom, immigration attorney, assists employers and employees worldwide who are seeking U.S. H-1B visas. We encourage you to contact us if you need legal advice regarding the H-1B visa process.
For a successful H-1B petition, the job offered must be that of a “specialty occupation.” A specialty occupation is one which requires at a minimum a bachelor’s degree in a relevant field, or the equivalent. USCIS places great emphasis on the Bureau of Labor and Statistics’ Occupational Outlook Handbook to determine whether or not a particular position requires a specific degree. The employee must also have a degree in a relevant field, or the equivalent. This seems relatively straight-forward, but USCIS can take a narrow view on what is a “specialty” and whether or not the employee has the equivalent of a bachelor’s degree.
The number of new H-1Bs available each federal fiscal year for most employers is 85,000. Of this number, 20,000 are reserved for those with master’s degrees or higher. This limit on the number of new H-1Bs is called the “H-1B Cap.” The federal fiscal year runs from October 1st through September 30th.
An employer may submit online one H-1B registration for each potential H-1B employee in March (exact days announced by USCIS each year). USCIS then conducts a lottery to select specific H-1B registrations, first randomly selecting 65,000 registrations from the general pool (all registrations), and then another random selection of 20,000 from the remaining master’s degree registrations. If its H-1B registration is selected, the employer may file a new H-1B between April 1st and June 30th for an October 1st start date. If there are H-1B Cap draws that are unclaimed, the government runs subsequent lotteries for these slots during the H-1B Cap fiscal year.
The H-1B Cap applies to those seeking H-1B status or an H-1B visa for the first time, or to those who previously were in the U.S. in H-1B status for six years, spent one year abroad, and are now eligible for another six-year period. The Cap does not apply to H-1B employees who will work for an institution of higher education, nonprofits related to or affiliated with such institutions, nonprofit or US government research organizations, and organizations that require the H-1B employee to work at a cap-exempt employer. If an H-1B employee has only ever worked for or at a cap exempt employer, such as a university, and then wants to move to a cap-subject employer (most private sector organizations), the employee then becomes subject to the cap and will require one of the 85,000 visa slots through the lottery system.
We encourage you to contact us if you need legal advice regarding the H-1B Cap (lottery) process.
H-1B Cap Exempt
Certain employers are exempt from the H-1B Cap and can file H-1Bs for qualified employees for a start date at any time of year, without having to go through the lottery process.
These employers are:
- Institutions of higher education (public or nonprofit colleges or universities, which offer at least a 2-year program that leads to a four year or higher degree, and is accredited or pre-accredited)
- Nonprofits related to or affiliated with institutions of higher education
- Nonprofit or US governmental research organizations; and
- Organizations that require the H-1B employee to work at one of the above categories of employers.
If a nonprofit, it must be designated by the IRS as a such and granted tax exempt status as a 510(c)(3), (c)(4) or (c)(6) organization. A nonprofit connected to an institution of higher learning must be closely related, such as having common ownership or control, or have a strong affiliation agreement. A common example of a nonprofit related or affiliated with an institution of higher learning would be a nonprofit teaching hospital that is connected to a university medical school. Some primary and secondary schools can also qualify, if they have a strong affiliation agreement with a university, typically through a school district’s student teaching programs.
Employers may be able to hire H-1B visa holders who are currently working in H-1B status for a different company or have been recently laid off. If the H-1B worker was previously selected under the H-1B cap and is currently working for their H-1B sponsor or is within a 60-day grace period after termination, a new employer can file a petition to USCIS to transfer the petition to their company. In this case, the employee may be able to start work upon confirmation that USCIS has received the petition. There are time constraints prior to day 60 to apply within the grace period, as there needs to be sufficient time for the Department of Labor to certify the wage. Ostrom Law Office can assist the employer in analyzing a particular candidate’s case and the options available to them.
We encourage you to contact us if you need legal advice regarding the H-1B visa transfer process.
Spouses and children under 21 of H-1B employees can accompany and remain in the U.S. with the H-1B worker on H-4 visas. The H-4 in general does not allow for work authorization. If the H-1B spouse has either an approved I-140 Petition for Alien Worker, or is in the 7th year of an H-1B, based on underlying employment-based green card application, then the H-4 spouse can apply for work authorization.
Employer Responsibilities when Sponsoring an H-1B Visa
The employer when sponsoring an H-1B undertakes certain obligations. Among these are the following:
- Paying the H-1B the required wage for the position, which is the higher of the actual wage (what the employer typically offers for the position) or the prevailing wage (as determined by the Department of Labor or a recognized alternative wage source) for the position;
- Paying the standard filing fees to the government and attorney fees (these cannot be paid by the employee);
- Maintaining a Public Access file which contains the relevant required documents for H-1B sponsorship;
- Amending the H-1B when necessary, if there is a material change in job duties, job location, or a decrease in the wage; and
- Offering to provide the employee with the reasonable cost of airfare home if the employer ends the H-1B employee’s employment prior to the end of the H-1B visa.
How Ostrom Law Office Can Help
Caroline Ostrom, Minneapolis business immigration attorney, has over 20 years’ experience processing H-1Bs. We can help you assess whether the position offered, and the employee’s qualifications are a good fit for an H-1B. We can also provide you with insights for what the Department of Labor considers the Prevailing Wage for a position before you file. We can determine whether the H-1B Cap applies to your case, ensure that your Petition is complete if you need to file under the Cap, and suggest alternatives. With our H-1B filings, we provide support from A to Z for a successful H-1B Petition, as well as guidance and preparation of relevant documents required for the Public Access File, for immigration compliance.
Based in Minneapolis, our immigration team works with employees and companies in the Twin Cities and throughout the globe. We welcome you to contact Ostrom Law Office for assistance with your H-1B questions and cases.