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PUSIN & SKLAR, LLC, ATTORNEYS AT LAW
H-1B VISA APPLICATIONS
Basic information about H-1B visas:
H-1B visa status allows certain alien professionals to work in
the U.S. for the H-1B sponsoring employer. The duration of H-1B
status is nominally six years (each H-1B term can be a maximum of
three years, with the total of all terms subject to a six year
cap). Where that six year cap has been hit, an alien may be
required to depart the U.S. for a year if later additional H-1B
status is again desired. However, if applications seeking lawful
permanent residence (LPRS) status for the benefit of the H-1B-holding alien are filed with U.S. immigration authorities before
the end of the fifth year of H-1B status, the six year cap is a
flexible cap, in that it may be possible to extend H-1B status
beyond six years, in one year increments. This can be useful in
allowing an H-1B alien to remain in the U.S. while the effort to
obtain LPR status goes forward.
The basic requirements for H-1B status are as follows:
- The alien must possess either a) a bachelor's degree (whether
from a U.S. college or university or from a foreign institution
where the degree is credibly evaluated to be equivalent to a
bachelor's degree from a U.S. institution); or b) the evaluated
equivalent of a bachelor's degree based on work experience and/or
on a combination of education and work experience
- The job at the heart of the H-1B application must be one for
which the U.S. immigration authorities agree it is reasonable for
an employer to require a bachelor's degree (or equivalent) of the
type that the alien holds
- The employer must pay the alien at least the minimum salary
that the government requires to be paid for
the position being sponsored. Wage requirements are based
both on the job description and the geographic location of the
job
Additional logistical considerations:
The number of H-1B statuses that may be granted to aliens who are
not already in H-1B status is subject to annual quota. Depending
on the timing of an intended application, the status of H-1B
quotas may either warrant moving quickly on an application or
waiting some time before the government will accept an
application. In recent years, USCIS has run an H-1B lottery in February or March. Persons who are sponsored by a U.S. employer to register for that lottery have to get lucky enough to be selected for further processing. If they are selected in the lottery, the sponsoring employer can apply for them to begin H-1B employment (if the H-1B petition for them is approved), beginning as early as the following October 1.
Once they obtain H-1B status, they may be eligible to be sponsored for renewal H-1B extension terms without needing to brave the lottery again.
H-1B visa services
provided by Pusin & Sklar, LLC:
We provide the following services in H-1B cases:
- Thorough explanation of the H-1B visa application process
- Careful design of H-1B applications, including:
- Analysis of whether work experience should be evaluated for
bachelor's degree equivalence
- Attention to visa needs of spouses and children
- Planning which takes visa transitions and quota timing issues into
account
An H-1B Success Story:
One of our clients came to us several years ago to
explore visa planning options. It seems his prior immigration
lawyer had successfully obtained for him H-2B visa status. H-2B
visa status differs from H-1B visa status in the following
respects: H-2B status is limited to one year duration (three
years maximum in extraordinary circumstances), it requires more
onerous application preparation including advertising of the
sponsored position and application for labor certification from
the Department of Labor, and it accordingly costs significantly
more than H-1B applications do with regard to lawyers' fees.
The client's education had ended at the high school level;
however, he had approximately 19 years of progressively
responsible experience in industrial glass manufacture, the field
of work for which he was being sponsored. We recognized that
work experience based bachelor's degree equivalence was a
possibility, obtained an evaluation letter to that effect, and
therefore were able to get his employer to apply for and obtain
H-1B status for this client. At a significant savings in legal
fees and other costs, employer and client obtained a much more
useful visa (when status duration is considered) than they had
been able to do previously. Moreover, because he had obtained H-1B status, the client was then able to process successfully for
permanent residence status, and that without having to leave the
U.S.
The discussion of H-1B basics and case history provided above, and the content of this web site generally, are not intended to be and should not be relied upon as legal advice. To be effective and reliable, legal advice must be tailored to the specific facts and relevant law pertaining to each individual case.
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