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Should I apply for an H-1B work visa?

Law Offices of Yu & Associates

Before the annual H-1B cap opens on April 1 each year, foreign professional workers throughout the US roll up their sleeves to take advantage of this fleeting chance. If you are in one of the following categories, then you should strongly consider taking action to submit an H-1B petition during this time.

Who should be concerned about submitting an H-1B petition on April 1st?

  1. Foreign university students who will soon graduate and have already found a job;
  2. H-1B workers who are applying for an H-1B transfer in order to change jobs, and who were not counted against the H-1B cap for their original jobs, but will be for their new employment. This is usually the case if you originally worked for an institution of higher education, a non-profit attached to an institution of higher education, a non-profit research organization or a government research organization, but your new employer is not in any of these categories.
  3. H-1B workers who are employed part-time or full-time and plan to get a second job, and whose first job was cap-exempt.

Foreign professionals who are starting their first job in the US should also apply for H-1B visas in order to work legally in the US. US companies can also bring foreign workers from abroad on H-1B visas. This includes foreign companies who have set up branch offices in the US.

What is an H-1B visa?

In order to qualify for the H-1B category, the worker must be a professional in a specialty occupation, and must have an academic degree equivalent to a US bachelor's degree or higher, or twelve years of work experience in his or her professional field. Specialty occupations include many highly skilled, professional and academic areas, such as accounting, architecture, literature and art, business, education, engineering, computer science, law, mathematics, pharmaceutics, physics, sociology and theology.

An H-1B petition can only be filed by a US employer, not by the individual worker. An H-1B visa allows a US employer to legally employ a foreign professional for 3 years, and can be extended another 3 years, for a maximum total of 6 years. After that, the foreign worker must leave the US for at least one year before being able to apply for another H-1B visa.

H-1B is a type of nonimmigrant work visa, but immigration laws allow an H-1B visa holder to have dual intent -- that is, to have immigrant and nonimmigrant intent at the same time. 'Nonimmigrant' means someone staying only temporarily in the US, and 'immigrant' means someone applying to move to the US permanently. Many nonimmigrant visas require applicants to show that they intend to return to their native country -- that they do not have immigrant intent. H-1B visas allow dual intent. This means that an H-1B visa holder can apply for an immigrant visa (the first step to a green card) without his or her nonimmigrant H-1B status being affected, and is a key difference between H-1B and other nonimmigrant visas, which do not allow dual intent.

The H-1B Cap

Since 2003, the annual cap for H-1B visas has been 65,000, and 6,800 of those are set aside for workers from Singapore and Chile, according to free trade agreements with each of these countries. Competition to get in under the cap is fierce; every year, it fills up long before the start of the fiscal year (which runs from October 1 to September 30). USCIS has added 20,000 additional visas for workers with a masterí»s degree or higher, but there are still not enough to go around. In recent years, USCIS has received enough petitions to fill both the regular cap and master's degree cap in less than a week after April 1.

There are a few jobs that are not subject to the cap (cap-exempt), such as working for an institution of higher education, a non-profit attached to a university, a non-profit research organization or a government research organization. For those individuals not working for a cap-exempt employer, and who do not already hold an H-1B visa but plan to start work after October 1 of this year, it is important to seize the moment and apply as soon as the cap opens. H-1B petitions can be submitted up to 6 months ahead of time, therefore petitions to start work on October 1 of this year can be submitted starting April 1. The cap normally fills within a few days or even on the first day, therefore applicants and their employers should be ready to submit petitions on April 1. If you are unable to find work and submit an H-1B petition before the cap fills up, you should consult with an experienced lawyer to determine how to maintain legal status in the US until would can find work and/or apply for an H-1B visa.

Wage standards for H-1B visas

Immigration laws require that an H-1B worker's salary not be lower than the prevailing wage for that profession. Therefore, if your salary is not high enough to meet the Department of Labor's standards for prevailing wage, this will make it difficult to apply for an H-1B visa. In this case, you and your employer need to come up with a solution, such as changing full-time employment to part-time, adjusting your job title, or changing your work location to an area with lower wage standards.

Small companies and H-1B

US Citizenship and Immigration Services (USCIS) examines H-1B petitions from small companies very closely, especially those from small companies that employ many H-1B workers. Small companies who are petitioning for H-1B visas should be especially careful and thorough in completing their application and collecting documentation. The employer must show, through submitting the company's financial reports or tax returns, that the company's financial situation can handle paying an H-1B worker. If the company doesn't have documentation to show its gross income and net income, or doesn't have income or profits, then it will need to submit other materials, such as contracts, sources of capital, or other investments, to demonstrate its operating situation.

H-1B dependent employers

If a company employs a certain number or proportion of H-1B workers, it will be deemed an H-1B dependent employer. H-1B dependent companies are: 1) Companies with 25 or fewer employees of whom 8 or more are H-1B workers; 2) companies with 26-50 employees of whom 13 or more are H-1B workers; 3) companies with 51 or more employees of whom 15% or more are H-1B workers. When petitioning for additional H-1B workers or for H-1B extensions, these companies must meet two strict requirements. First, the company must guarantee that while hiring H-1B employees, it did not lay off any US workers. Second, the company must demonstrate that before hiring H-1B employees, it made an effort to hire US workers. If the H-1B worker has a master's degree or higher or receives a salary of $60,000 or more, however, then the company does not need to meet these two requirements.

Responsibilities of the H-1B employer

Immigration laws require companies that employ H-1B workers to pay the reasonable costs of return to their home country if any of the H-1B employees are terminated prior to the expiration of their H-1B visas. This does not include voluntary resignations on the part of H-1B employees.

What if an H-1B worker leaves the US?

If you have submitted an H-1B petition, but it has not yet been approved, then you cannot travel outside the US during this time, otherwise, your H1B application will be cancelled. If you have an approved H-1B petition, then if you travel outside the US, you will need to obtain a visa again before re-entering the US. For those individuals who are in H-1B status but have already begun the process of adjusting status to permanent resident and already possess an employment authorization document (EAD) and advance parole (AP), there are two possible ways to re-enter the US after travel abroad: the first is to re-enter using advance parole, and then use your EAD to work; the second is to bring your H-1B petition materials and approval notice with you and go to the US consulate abroad to apply for an H-1B visa, then re-enter the US and continue working in H-1B status.

When should I apply for a green card while I am holding H1B status?

If you are in the fifth year of H-1B status, and you plan to continue to live and work in the US beyond the end of your H-1B status, then you should get started on applying for a green card before the end of the fifth year. Otherwise, if your H-1B status expires and you have no other status to change to, you will have to leave the US. If you submit your green card application before the end of the fifth year, then as the end of your H-1B status approaches, you can apply to extend it beyond the usual 6-year limit. Under immigration laws, you can apply for an extension of H-1B status beyond the 6-year limit under the following conditions:

  1. You have been waiting for over 365 days for your Labor Certification application to be approved;
  2. Your immigration petition (I-140) was submitted over 365 days ago; or
  3. Your I-140 petition has been approved, but you are waiting for your priority date to become current in order to submit Form I-485 (adjust status).

In a memorandum issued December 5, 2006, USCIS eased the rules on applicants who meet the above requirements, allowing them to extend H-1B status for a seventh year as long they have maintained legal status in the US.

If you were not able to begin your green card application before the end of your fifth year of H-1B status, then you will not meet the requirements above and will not, in principle, be able to extend H-1B status for a seventh year. This can be a difficult situation, but it is possible to find a solution. In this case, you should contact an experienced lawyer to analyze your situation and try to find a strategy for extending your stay. For instance, if you spent a period of time outside the US, this could be the basis for an extension of H-1B status.

Lastly, if you did not apply for a green card during the 6-year H-1B visa validity period or your application was denied, and now you wish to return to the US to work, there are a few options for you to work legally in the US. If you left the US before the six years were up and now wish to return, then your options will depend on the length of time you have been outside the US. If your time outside the US was less than one year, then you will only be able to return for the unused portion of your six years of H-1B status. If you will be working for your original employer, then you can use your original H-1B approval notice to apply for a visa to re-enter the US. If you will be working for a different employer, then you will need to apply for an H-1B transfer, and you will usually not be subject to the annual cap in this situation. If you have been outside the US for more than one year, then you have more options. One is to forget about the original H-1B visa and apply for an entirely new H-1B visa which you will be able to use for six years, although in this case you must get in under the annual cap, unless your work is cap-exempt. Another option is to use the unused portion of your original H-1B stay, which will not be subject to the cap.

The above is a general introduction to immigration policies, and should not be construed as individual legal advice. For specific legal questions, please contact the Law Offices of Yu & Associates. Attorney Xiaohui (Sharon) Yu is a graduate of New York University School of Law, one of the top five law schools in the US, and has practiced law at some of the top firms in the US, UK and China.

Tel: 301-838-8986, Fax: 202-595-1918; E-mail:, Address: 110 N. Washington St., Suite 328E, Rockville, MD 20850. (All rights reserved.)

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