Q: What is a special occupation?
A: 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. The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status in each fiscal year.
Q: What are the requirements for H-1B visa?
A: H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129 petition plus accompanying application fee of $460, antifraud fee of $500 and training fee of $750 or $1500 if the sponsoring employer has more than 25 employees in the United States. Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant status. 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.
Q: Can an H-1B worker change employer?
A: 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.
Q: What does it mean to keep H-1B status?
A: 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.
Q: What is “dual intent” for H-1B visa holders?
A: 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.
Q: What does the H-1B Cap mean?
A: Since there are only 65,000 H-1B visa available in a given fiscal year, all H-1B applicants who are subject to the Cap must file as early as April 1 in order to apply for an H-1B status starting from the October 1 in the same year.
Q: What kinds of organizations are exempt from H-1B cap?
A: Applicants for H-1B status sponsored by the following organization are exempt from the cap:
- An institution of higher education as defined in section 101(a) of the Higher Education Act, of 1965, 20 U.S.C. 1001(a).
- A nonprofit entity related to or affiliated with an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a)
- A nonprofit research organization or a governmental research organization as defined in 8 CFR 214.2(h)(19))(iii)(C).
- An organization that will employ the beneficiary to perform job duties at one of the three institutions above that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution, namely higher education or nonprofit or government research.
In addition, applications for following categories are exempt from the cap, including applications for amendment or extension of stay and those for beneficiaries who was previously granted status as an H-1B nonimmigrant in the past 6 years or is applying from abroad to reclaim the remaining portion of the six years or is seeking a 7th year extension based upon AC21 and the beneficiary’s previous H-1B petitioner/employer was not a CAP exempt organization as defined above in 1 through 3.