H-1B Visa for 2015-2016 Information Center

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Ortega-Medina & Associates literally receives scores of immigration-related inquiries every day of the week. The majority of these inquiries – by far – come from individuals asking about the H-1B visa. The questions range from the simple (“What is an H-1B visa?”) to the more technical (“If I am terminated from my H-1B employment, how much time do I have before I have to leave the United States?”)

Due to the high interest in the H-1B visa category, Ortega-Medina & Associates has launched this H-1B visa information center. The center is designed to answer many of the most common H-1B visa questions, provide alerts regarding H-1B visa caps and changes to the H-1B visa program, and news articles of interest to companies and individuals currently taking advantage of the H-1B visa program.

More complex questions concerned with specific individual matters require a more personalized approach. Thus, in the event that you do not find the answer to your question herein, we invite you to contact our law firm for a complimentary, personalized half-hour telephonic consultation with one of our lawyers.

Commonly Asked Questions about the H-1B Visa

What does “H-1B” mean?
The term “H-1B” comes from the section of the Immigration and Nationality Act authorizing issuance of the H-1B visa (i.e., INA 101(a)(15)).

What is an H-1B visa?
The H-1B visa is, in effect, a type of work permit used by an individual who will be employed in a “specialty occupation”— either in a professional capacity, or as a fashion model of distinguished merit and ability. It is not a “green card”, although it could eventually lead (in a collateral sense) to a green card.

What exactly does “specialty occupation” mean?
The term is a legal term of art found in the immigration regulations. The regulations define a “specialty occupation” as one requiring “theoretical and practical application of a body of specialized knowledge”, along with at least a bachelor’s degree or its equivalent. Clear examples of occupations include those in the fields of architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. However, this list is by no means exhaustive.

I don’t have a bachelor’s degree. Am I disqualified from getting an H-1B visa?
Setting aside the special case of fashion models, there are two issues involved with respect to bachelor’s degrees: 1.) the position offered must require a 4-year bachelor’s degree, as a minimum requirement; and 2.) the sponsored alien must hold a 4-year bachelor’s degree, or foreign equivalent. Also, if the position requires a bachelor’s degree in a specific field (e.g., mechanical engineering), then the H-1B visa beneficiary must hold the equivalent of such a degree. If the H-1B visa beneficiary never finished his or her degree program, then the law may allow relevant work experience of 3 years to take the place of 1 year of missing full-time studies.

What’s up with this H-1B “visa cap” I’ve heard so much about?
The H-1B “visa cap” is a statutory limit on the number of H-1B visas that can be issued in any particular fiscal year. (The fiscal year runs from 1 October through 30 September.) Current immigration law places a limit of 65,000 H-1B visas that can be issued in any one fiscal year.

The H-1B visa cap only applies to new H-1B visas. It does not apply to individuals seeking renewal of H-1B visa status, or those who have already been counted toward the cap in the last six years.

I’d like to apply for an H-1B visa. How can I do this?
You cannot apply for an H-1B visa on your own behalf. The H-1B visa requires sponsorship by a US employer. The employer, or its legal representative, must first file a Labor Condition Application (“LCA”) with the United States Department of Labor. In the LCA, the employer is required to attest to several items, such as payment of prevailing wage for the position offered, and the working conditions offered.

Once the US employer-sponsor receives the certified LCA, the employer must then provide it to the US immigration service, along with the appropriate petitions, documentary evidence, and filing fees. If the H-1B visa petition is approved then your are free to apply for the H-1B visa abroad, admission at a port of entry, or a change of nonimmigrant status from within the United States.

Once I’ve been admitted in H-1B visa status, for how long can I remain in the United States?
You may remain in H-1B visa status for a maximum period of six years at a time. After you have exhausted the six (6) year period, you must remain outside the United States for one year before another H-1B petition can be approved. However, you always have the option of changing to another non-immigrant visa category, such as L-1 or E-2, assuming you meet the qualifications for such a visa.

There is an exception to the six-year rule for certain individuals working on Department of Defense projects. These individuals may be able to remain in H-1B visa status for up to ten (10) years. Also, certain individuals may obtain an extension of H-1B visa status beyond the 6-year maximum period, under the two (2) following circumstances:

• One complete year or more has passed since an employer filed a “green card” petition on the individual’s behalf;
  or
• One complete year or more has passed since the H-1B visa holder filed an “adjustment of status” application.

As an H-1B visa holder, may I work for whomever I want?
No. If you are issued an H-1B visa, you may only work for the US employer that petitioned for you, and only in the position for which you were originally hired as described in the H-1B visa petition. Your employer may place you on the worksite of another employer, as long as if all applicable US Department of Labor rules are followed.

May I work for more than one employer?
Yes, but only if employer has first obtained a labor condition application for your job, filed a petition and obtained approval for the H-1B visa from the immigration service.

Will my H-1B visa become invalid if circumstances change for me at work?
This depends. Many changes at work (such as merger or sale of the company), will not put you out of status, as long as you continue to provide the same H-1B visa services for the successor employer. However, if the change means that you are working in a capacity other than the occupation for which you were approved, the conditions of your H-1B visa status will be violated.

I don’t like my H-1B visa employer. Can I change jobs?
You may switch from one US employer to another without affecting your H-1B visa status. Your new employer must file a new LCA and a new H-1B visa petition on your behalf, before you may start working for your new employer.

Do I have to work full-time?
As an H-1B visa holder, you may work either full-time or part-time, without endangering your H-1B visa status. You may also take vacation, participate in a strike, go on sick/maternity/paternity leave, or be otherwise inactive without violating your H-1B visa status — as long as the employer/employee relationship exists between you and the sponsoring US employer.

I haven’t been home in over two years. Will I lose my H-1B visa if I travel outside the U.S.?
In most cases one will not lose their H-1B visa simply by traveling outside the US. The H-1B visa should allow you re-enter the US during the validity period of the visa and approved petition. (One notable exception to this is the case of holders of an Iranian passport.)

Will I lose my H-1B visa if the immigration service discovers that my true intention is to eventually get a “green card”?
Not at all. As an H-1B visa holder, you can be the beneficiary of a “Green Card” petition, apply for Adjustment of Status, or take other steps toward Lawful Permanent Resident (LPR) status, without affecting your H-1B visa status. This is known as “dual intent” and it has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that your Green Card application is pending, you are free to travel on your H-1B visa rather than having to obtain special advance permission from the immigration service to return to the US.

Don’t see the answer to your question? Ortega-Medina & Associates invites you to submit your general H-1B visa questions for inclusion in this feature.

To find out if you qualify for an H-1B visa, please click here.

To see an H-1B visa processing flow chart, please click here.