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H-1B Visas

Understanding H-1B Visas

The H-1B is a temporary work visa available to certain individuals with specialized knowledge and skills. One of the most common types of employment-based visas, the H-1B enables the qualified worker (and his/her spouse and children) to live in the United States for an initial period of up to three years. This visa may be extended for an additional three-year period. In most cases, when the employer starts the permanent residency process before the end of the employee’s fifth year in H-1B status, the H-1B can be extended beyond six years. The H-1B often serves as the link between temporary work authorization and permanent residency.

Requirements for the H-1B Visa

Employers wishing to file an H-1B petition for a foreign employee must follow strict government regulations. The first step in the H-1B process is for the employer to create a “Public Access File” and to file an electronic Labor Condition Application (“LCA”) with the Department of Labor. Part of the LCA process is for the employer to attest that it will pay the foreign worker a specific minimum salary that is usually determined by the United States Department of Labor wage surveys for a given geographic area and industry.

Once the Department of Labor certifies the LCA, the employer can then file the H-1B petition and supporting documentation. The petition must include evidence that the foreign worker possesses advanced skills in a specific area. The foreign employee usually must hold a four-year U.S. bachelor’s degree or the equivalent. While individuals in most industries may qualify for this visa, many H-1B candidates in the San Francisco Bay Area are IT / tech professionals.

The H-1B Cap

Congress has allocated a finite number of H-1B visas per year, which results in what is commonly referred to as the “H-1B cap.” Approximately 65,000 H-1B visas are available per fiscal year (October 1 through September 30) for new applicants who hold at least a bachelor’s degree or its equivalent. A certain amount of the 65,000 H-1B visas per year are reserved for H-1B1 visas held by nationals of Chile and Singapore, so the exact number available each year fluctuates depending on the number of H-1B1 applications received each year. An additional 20,000 H-1Bs are available to first-time applicants who hold a U.S. master’s degree or higher from a public or non-profit institution. Please note that applicants who already hold an H-1B visa and those who are sponsored by universities and certain affiliated nonprofit organizations may be exempt from the cap.

The ‘H-1B Lottery’

H-1B petitions can be filed no sooner than six months before an employee starts working on the H-1B visa. Consequently, USCIS accepts petitions each year is on April 1 for an October 1 start date. When the U.S. economy is strong, the USCIS often receives more than the allocated number of visas it can approve each year during the first few days in April. This results in a computer-generated random selection process, which is often referred to as the “H-1B lottery.”

The “H-1B lottery” is used to select a sufficient number of petitions needed to meet the 65,000 cap for the general category and the 20,000 petitions under the advanced degree cap. If a cap-subject petition is not selected in the random lottery, USCIS will reject and return the H-1B petition and will not cash the filing checks.

USCIS essentially conduct two lotteries. First, it conducts the U.S. master’s degree lottery. If the agency receives more than 20,000 petitions filed on behalf of workers who have a U.S. master’s degree from certain qualifying institutions, those advanced degree petitions not selected will be considered for the second general lottery, which has a 65,000 visa limit.

Since only a certain number of new cap subject H-1B petitions can be approved each year, it is essential for employers to consult early with an immigration attorney to assure new H-1B petitions are prepared and accepted for filing during the first week in April.

Spouses and Children of H-1B Visa Holders

Spouses and unmarried children under 21 of H-1B visa holders may be eligible for H-4 visas. The H-4 visa does not provide employment authorization, with limited exceptions.

When Can An H-4 Spouse Get a Work Permit?

As of May 26, 2015 some H-4 spouses of H-1B visa holders are eligible to apply for an employment authorization document.  Speaking about extending work authorization to some spouses of H-1B visa holders, USCIS Director Leon Rodriguez said that “it helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Under the new regulation, H-4 spouses of H-1B visa holders are eligible for employment authorization if the H-1B visa holders:

  • Are the principal beneficiaries of an approved I-140 visa petition; or
  • Have been granted an extension of their H-1B status under AC21 (which applies to extensions of H-1B status after the filing of either a labor certification or an I-140 visa petition).

Most spouses of H-1B visa holders are not eligible for work authorization. Those who are eligible are typically those whose spouses have immigrant visa petitions and green card applications that are subject to long backlogs.

Connecting Your Business With International Talent

At Becker & Lee LLP, employment-based immigration is one of our primary practice areas. Our experienced attorneys have worked with a range of talented individuals, employers and human resources professionals to obtain H-1B, and other temporary work visas for their employees. Past clients include California universities, Silicon Valley tech companies, and a range of additional startups and businesses.

Our H-1B visa lawyers offer comprehensive representation to help ensure legal compliance and help increase chances of success in the visa application process. Contact our San Francisco law firm to learn more about your options.