18
Mar, 2014

The H-1B is an extremely versatile and complex visa which encompasses many vocations, pursuits and professions. To qualify for an H-1B Professional visa, an applicant must have a US bachelor’s degree (or its equivalent) in the field in which he intends to work, and a job offer. Significant and relevant work experience may substitute for a bachelor’s degree but must be evaluated on a case-by-case basis.

H-1B visas are valid for an initial period of three years and can be renewed for a further three years. After that, the alien (or “beneficiary”) must leave the country for one year before once again applying for H-1B status.

A new H-1B must be obtained each time the beneficiary gets a job with a new employer. If the beneficiary is in the US and does not want to leave the country to get a visa stamped in his passport, he may apply for change of status. He will receive a new I-94 to put in his passport rather than a new visa. It is possible to get a visa stamped in the passport by applying to the US consulates in Canada or Mexico if the beneficiary does not want to return to his home country.

An H-1B holder should not be unemployed. This means there should be no “lag-time” between jobs. If time elapsed between H-1B jobs, the beneficiary may have to return to his home country to obtain his new H-1 at the US consulate.

An H-1B is a “dual intent” visa. This means that, although it is a nonimmigrant visa, the holder does not have to intend to return to his home country and may apply for Permanent Residence (“Green Card”) when he is in H-1B status.

The quota for H-1B visas is currently 65,000 per annum. However, the quota only applies to those applying for H-1B’s for the first time, or switching from another visa or status, eg an F-1 student visa to an H-1B . People already in H-1B status may change jobs or extend their H-1’s and are not affected by the quota.

Cap-Exempt H-1B Visas

Chile and Singapore:
6,800 of the 65,000 available visas are set aside for nationals of Chile and Singapore. These visas are issued for one- year periods only but extensions are not limited to the usual six-year period.
U.S. Master’s or higher degrees:
The first 20,000 H-1B visa petitions filed on behalf of those with a master’s or higher- level degree earned from a U.S. institution of higher education are exempt from the annual fiscal cap.
Institutions of higher education and related or affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations:
Petitions on behalf of aliens who will be working at these institutions, which include many city hospitals, are not subject to the cap at all and can be filed at any time.

Case Examples

Good lawyering allows for people with different qualifications and experience to obtain an H-1B in the field in which they wish to work. We have an excellent track record with obtaining H-1B visas for architects and designers for companies of all sizes. Recent challenging cases undertaken by this office include:

  • H-1B as Marketing Manager for a designer boutique in New York City with only three employees. The applicant had a foreign degree that was the equivalent of a U.S. degree in Business Administration. (2013)
  • H-1B as Market Research Analyst for small Real Estate brokerage in New York City, based on a combination of education and experience. Approved after receipt of Request for Evidence. (2013)
  • H-1B for Architectural Designer. USCIS queried the need for an architectural designer to have a bachelor’s degree in order to perform the duties of the position. We submitted copies of his designs and project plans, as well as substantive information showing the complexity and professional nature of the position, both in general and in this particular case. Approved after receipt of Request for Evidence. (2013)
  • H-1B as Technical Associate for a Japanese internet services company commencing U.S. operations. The applicant was a Romanian national who had an undergraduate degree in East Asian Studies and Chemistry. However, we were able to show that he spoke and wrote fluent Japanese, had gained experience interning with the company in Japan and had the requisite cultural knowledge to “tweak” the Japanese product and successfully launch a new application in the United States and worldwide. (2011)
  • H-1B for a Food Technologist for a bakery in Brooklyn, New York. This case was challenging in that Food Technologists are typically hired by large food manufacturing operations and the Immigration Service queried the need of a medium-sized bakery for the services of a Food Technologist. We submitted documentation showing that Brooklyn is the center of the artisanal food industry and the bakery produced foods for a variety of people with special dietary needs as well as for high-end retailers. These special requirements, and the growing demand for pure, organic products in the artisanal market, justified the need for a Food Technologist. Granted after a Request for Evidence. (2011)