H-1B and H-1B1 Visas for Professionals
An H-1B and H-1B1 visas are nonimmigrant visa categories for U.S. employers seeking to temporarily employ foreign professionals in “Specialty Occupations”. H-1b visas are visas that allow for dual intent, and therefore, an applicant can apply for lawful permanent resident status while maintaining and renewing their H-1b nonimmigrant status. H-1b1 visas mimic the requirements for the H-1b visa but are only for nationals of Singapore and Chilean.
Specialty Occupation means an occupation that normally requires:
- Theoretical and practical application of a body of highly specialized knowledge; and
- A bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
To qualify for the H-1B visa the employer-sponsor must establish that:
- The position being offered is a specialty occupation.
- The foreign national (“applicant”) has the required specialty degree or its equivalent as well as any other prerequisites to qualify for the position; and
- An employer-employee relationship.
H-1B Lottery: Per Annual Visa Cap and When to Apply
USCIS issues 65,000 H-1B visas per year and an additional 20,000 visas for applicants holding a relevant master’s degree. Therefore, H-1B visas are subjected to a CAP on the number of visas available to be issued each year and are referred to as “Cap Subject H-1B». Due to the limited number of visas available each year, USCIS randomly selects applicants to apply for a H-1B visa through the H-1b Lottery process.
Each year, the H-1b Lottery begins in March and the H-1b applicants are randomly selected around the first week of April. An applicant is entered into the lottery by their employer-sponsor through an H-1B electronic registration process. If the beneficiary is selected, the employer will have approximately 60 days to submit the H-1b application with supporting evidence to USCIS for adjudication. Since the H-1b visas available for the year are released by USCIS on October 1st each year, the applicant cannot begin working for their employer under H-1b status before October 1st of that year.
H-1B Cap Exempt
Universities and related nonprofit entities, nonprofit research organizations and government research organizations are exempt from the cap, and therefore, the H-1B lottery. These employers are able to submit an H-1B application to the USCIS at any time during the year without concern for the fiscal year limit. However, an applicant who works for an H-1B cap-exempt employer who changes jobs to an employer that is not exempt may become subject to the H-1B cap which would require the applicant to enter the H-1b lottery.
Changing Employers or Positions while on H-1B
An H-1B employee can change their H-1b employer by obtaining a newly approved H-1B visa filed by the new employer. There are a lot of nuances in this process. Therefore, you should speak with an
experienced immigration attorney before taking any action towards changing your employer. H-1B employees can work for more than one employer, but each employer must have an approved H-1B application.
If the H-1B employees’ job duties or work location changes, an amended H-1B application must be filed and approved by USCIS.
H-1B1s for Nationals of Singapore and Chile
Citizens of Singapore and Chile can qualify for H-1b1s which has all the same requirements as H-1bs, but with many more advantages:
- H-1B1s can be applied for directly at the consulate which eliminates the employer’s requirement to pay hefty filing fees to USCIS.
- The consulate will issue the applicant an H-1B1 visa in their passport that allows the applicant to travel internationally.
• H-1B1 can be applied for year-round and does not require the applicant to enter the H-1B lottery process. Although, there are 6,800 (5,400 for Singapore and 1,400 for Chile) H-1B1 visas that can be issued each year, these numerical limits have never been reached.
H-4: Spouse and Children of H-1B and H-1B1 Visa Applicants
A spouse and unmarried children under the age of 21 may be eligible for H-4 classification. An H-4 spouse dependent is eligible to receive work authorization.
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