H-1B Visa
All NEW first-time H-1B filings (Employee never counted against Cap and Employer not Cap exempt). Cap subject filings are received in the first five business days of April for approvals to commence on October 1. When more filings are received than the H-1B caps allow (there are 65,000 regular Cap spots, and 20,000 U.S. Advanced degree), a lottery is held to accept Petitions filed against the Cap. If you are chosen, your case is receipted and processed, if not, the case is rejected and filing fees returned.
With the existence of two distinct Caps, individuals who hold an advanced qualifying U.S. degree would first be entered in the 20,000 Cap exempt lottery and, if successful, receipted. If unsuccessful, the Petition is automatically entered in the 65,000 regular Cap lottery. Thus, an advantage exists for holders of qualifying U.S. advanced degrees. Ultimately, those cases not picked in the lottery are returned to the Attorney of Record several weeks after the filing is originally received.
Individuals already working in the U.S. may transfer their H-1B status to another employer. Technically, H-1B rules allow an individual to “port” their H-1B – meaning one can start working for the new employer without first receiving an approval – if they meet three criteria:
- The most recent entry or approval was in H-1 status;
- There has been no unlawful employment since the last entry;
- The new employer is filing a bonafide application.
Despite the existence of portability, many individuals wait until the filing is approved before changing employer to guard against the possibility of denial of the H-1 transfer. While we can never guarantee an outcome in a specific government filing, we rarely see denials of such filings.
Assuming the person transferring their H-1B was previously counted against the H-1B Cap, there is no requirement to again count under the Cap. We only face issues with timing or portability if a Cap exempt H-1B holder seeks to join a Cap subject employer.
Like all major immigration rules, there is an exception to the H-1B Cap. Certain employers are considered “cap exempt,” meaning the sponsored employee does not need to be counted against the cap prior to starting work. There are four qualifying employers:
- Institutions of higher education: Defined by Federal statute, this category generally includes accredited public and not-for-profit colleges and universities.
- Nonprofit entities affiliated with an institution of higher education: This category includes 501(c)(3), (4), or (6) entities that have an ownership, operation, or attachment connection to institutions of higher education (see #1) or hold active educational affiliation agreements with such institutions.
- Nonprofit research organization: This category includes 501(c)(3), (4), or (6) research organizations that are primarily engaged in research.
- Governmental research organization: This category includes federal, state, or local entities who are primarily engaged in research.
Additionally, a cap-subject employer can file “cap exempt” if petitioning for an individual who will primarily work at a cap-exempt institution. And should a cap-subject employer file a concurrent H-1B petition for an employee who is working full-time for a cap-exempt entity, that employee does not have to be counted against the cap to receive concurrent H-1B approval.
H-1Bs are location-, employer-, and job-specific, so changes to any of these elements may trigger a need to notify USCIS through the filing of an amendment. Clients should notify us in advance of any anticipated change so a timely filing can be made with USCIS. In some cases, an amendment is not required – for example where the employer moves its offices locally (within the same county or commuting distance); but additional wage notice is required. Conversely, an H-1B ceasing employment – for any reason – is a material change that requires notification of USCIS.
In general, Premium Processing (PP) offers the benefit of a quick decision for those who require timely approval of their application in order to give notice to current employers of the job change. Only certain application types may use PP (and at times USCIS has suspended PP for various H-1B filing types; we will inform clients if a PP option exists).
PP offers an advantage specifically to H-1B filings as it dramatically speeds up case processing (Regular filing = 5+ months; PP = 15 calendar days). If USCIS issues a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), the 15-day processing time stops, and it restarts at day one when the response is received. The current filing fee for Premium Processing is $1,410.
PP is often used in new hire situations or when timing requires a quick decision. In certain cases, based on the timing of other applications or status issues, it can eliminate future filings and even save money.
If one holds a valid H-1B visa, you only need to show the original approval notice on return to the U.S. If the visa has expired or a is different type, you will need to obtain a new visa at a U.S. consulate before returning to the U.S. *Note: Canadians do not require a visa – they just show the H-1 Approval or H-1 I-94.
The effect of travel on a pending application depends on a person’s current status. Depending on the timing and underlying status, the foreign national may not be eligible to re-enter the U.S. Please contact the attorney or paralegal working on your case prior to traveling to discuss the potential impact on your application.
Always plan a visa application several months in advance to secure an appointment and ensure the consular website is visited both when booking and prior to leaving the U.S. to ensure all necessary documents are brought to the interview.
While some of the information required for each petition will vary depending upon the particular circumstances, to help get you started, the following documents are required for every H-1B petition:
