H-1B - Degreed Persons in Specialty Occupations

The H-1B Visa is one of the most common temporary (nonimmigrant) worker visa category for individuals hired by US companies, where the individuals do not have US citizenship or Resident Alien Status ("Green Card"). Generally, a person is eligible for an H-1B if he/she has at least a US Bachelor's Degree (or foreign equivalent) in the field, and will be working for the organization in a capacity that normally requires at least a Bachelor Degree in that field to perform the duties and as entry-level requirement. H-1B's are subject by law to an annual numerical cap or limit by fiscal year (October 1 to September 30). Once the quota (annual limit of H-1B's), has been exhausted no new H-1B's will be granted to any employer until the government's next fiscal year, October 1st.

H-1B's are generally (see Exceptions under AC 21 below- extending beyond 6 years) limited to a maximum of six (6) years. All time spent in the US on another H-1B or L-1 will count against the six (6) year limit. The six (6) year limit may be restarted if the individual spends one (1) full year out of the US.

H-1B's Not Subject to the Quota - H-1B candidates who have valid H-1B status with another employer or who will be working for are not subject to the yearly H-1B quota. If the person is changing status from a J-1, F-1, TN or L-1 non-immigrant classification, however, they will likely be subject to the yearly quota.

H-1B "Portability" THE AMERICAN COMPETITIVENESS IN THE 21ST CENTURY ACT (AC21)

A new law changed the way H-1B's may be transferred from one employer to another. On October 17, 2000 the American Competitiveness in the 21st Century Act (AC21) became law. AC21 increased the speed with which H-1B worker's who are transferring from one employer to the other can commence the new H-1B employment. This law presents a major change to the regular immigration policy of requiring an actual approval notice before a nonimmigrant temporary H-1B beneficiary can commence employment with a new H-1B employer. This law allows an H-1B beneficiary who is requesting a change of employers to begin work with the new employer once the H-1B petition is filed for that new employer. Based on recent literature addressing AC21, the best proof of a proper filing is the formal Citizenship and Immigration Services (CIS) receipt notice that is usually mailed out by CIS within a week or so of filing at the appropriate CIS Regional Service Center.

To qualify for the "Portability" provision of AC21, it is our opinion that each candidate must meet a five-part test: 1) the candidate must be in valid H-1B nonimmigrant status; 2) he/she must have been previously accorded an H-1B visa (if required) prior to traveling; 3) was not employed in an unauthorized capacity before the petition was filed; 4) the petition is not frivolous and has been correctly filed with a certified LCA; 5) and, after the CIS receipt confirmation is received.

AC21 ALLOWS CERTAIN INDIVIDUALS IN H-1B STATUS TO EXTEND BEYOND THE NORMAL SIX (6) YEAR LIMIT UNDER 2 CIRCUMSTANCES:
1) Extension beyond 6 years may be permitted if the H-1B worker is the beneficiary of an employment based (EB) Lawful Permanent Resident ("Green Card") immigrant petition (I-140) or an application for adjustment of status (I-148); AND
2) 365 days or more have passed since the filing of a labor certification application, form ETA 750, or 365 days or more have passed since the filing of the EB immigrant petition (I-140).

Extensions beyond the 6-year general limit will be granted to those individuals who meet the criteria in one (1) year increments, until the CIS issues a final decision on the H-1B nonimmigrant's lawful permanent status.

A 2002 LAW ALSO ALLOWS EXTENTION TO 6 YEAR LIMIT WHERE A LABOR CERTIFICATION HAS BEEN FILED:
This law allows H-1B employees who have Labor Certifications (any type) filed before the end of the 5th year or an H-1B or L-1, to incrementally extend H-1B status 1 year at a time, until the Labor Certification is adjudicated.

DATA NEEDED TO APPLY FOR AN H-1B VISA

The following information is required by English & van Horne to apply for an H-1B visa:

• Name of Company, Division and actual location(s) (street, city, state, and zip) where the individual will actually be employed -i.e. job site.
• Human Resource and hiring Manager contact information, including phone numbers and email ID.
• US Salary (excluding bonus).
• Description of proposed duties in the US.

• Copies of all University degrees with transcripts, in with English Translation.
• Description of which degrees apply to the work performed.
• Detailed resume with specific dates of employment, employer's full names, addresses and duties with particular attention to authority held and exercised.
• US immigration history. Specifically, any prior periods (dates) of stay on an F-1, J-1, H-1B or other visa(s), and any presence in the US beyond period of authorized stay.
• Indicate any immigrant petitions or labor certifications previously filed on behalf of the individual.
• Has the individual ever been denied any US immigration benefit?
• Foreign home address.
• Copy of passport validity page.
• Full legal name, date and place of birth for the individual and any family members.
• Degree equivalencies: There may be a need to get degree equivalencies if the last or highest university degree was received outside of Canada or the US. (These will be obtained by English & van Horne, if none are presently available.)

• Copy of each and every page in his/her passport.
• Copy of front and back of I-94 Admission Card.
• Copy of any/all employment authorization card.
• Copies of any petition approvals from the CIS.
• US Social Security number.
• US home address.
• If any family members are in the US, what is the status?
• Copies of recent pay stubs for the past three months (just prior to final submission).
• Copies of marriage and birth certificates for self and all dependants.