NY Skyline

H-1B Visa & Status

What is an H-1B Visa?

H-1B is a nonimmigrant visa category that allows a foreign worker to come to the United States to work in a "specialty occupation," which requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. Some examples of specialty occupations are architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

Features of H-1B Visa
h1b visa

* An employee may receive extensions of H1B status beyond six years in certain circumstances, if s/he is in the process of applying for employment-based permanent residence or green card.

**Certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, if the H-1B nonimmigrant: (a) Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or (b) Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).

Qualifying for H-1B Visa
h1b visa requirements
The H-1B Cap
h1b cap

The current annual cap on the H-1B category is 65,000 as set by Congress. From the annual cap, up to 6,800 visas are set aside each fiscal year for the H-1B1 program pursuant to the under the U.S.-Chile and U.S.-Singapore free trade agreements.

An additional 20,000 slots are allocated for individuals who have completed a master’s degree or higher education from an accredited U.S. institution or higher learning.

H-1B Cap-Exempt Categories

The law acknowledges that there are certain important sectors that require adequate supply of qualified workers, hence, there are classes of employers that are categorized as cap-exempt. Cap-exempt employers are non-profit institution universities and their non-profit affiliates and non-profit research organization or governmental research organizations.

Aside from these cap-exempt employers, there are also individuals who are not subject to the numerical restrictions, such as: individuals who have already been counted toward the cap (i.e. H-1B extensions, transfers, changes in employment contracts, and concurrent working second H-1B petition). J-1 non-immigrant physicians with waivers granted by the USCIS based on sponsorship by a state health department are also exempt from the cap.

These cap-exempt H-1B petitions may be filed at any time during the year.

H-1B Statistics
h1b visa petitions

For the past three (3) years, the H-1B cap had been reached within five (5) days from the filing period of April 1st – indicating an increased demand for H-1B workers. For FY 2015, the USCIS received a record-breaking 233,000 petitions. With increased demand for H-1B workers, the number of H-1B petitions for FY 2016 is likely to pass the 233,000 mark.

Considerations for FY 2016 H-1B Visa Season
  • Labor Condition Application (LCA)

Before filing an H-1B petition at the USCIS, an LCA must first be certified by the Department of Labor. The LCA is required to ensure that a foreign worker neither displaces nor adversely affects the wages or working conditions of U.S. workers in the same area where the employer intends to locate the H1B employee.

In the LCA, an employer makes statements concerning the offer of wage, work location, working conditions as well as termination of U.S. workers in similar position. Effective October 1, 2008, an employer must register with the DOL and create an online account in order to submit any LCA online.

The LCA must be secured way before the start of the filing period since time is of the essence in filing an H-1B petition. You must always check the DOL LCA processing times and plan accordingly. There is a big possibility that the USCIS may close the application window after a couple of days based on the trend in the previous years.

  • Timing

USCIS will start to accept petitions for the next fiscal year starting from April 1st of the previous fiscal year. A fiscal year starts on October 1st and ends on September 30th. For FY 2016 H1B quota, which starts from October 1st, 2016, USCIS is expected to accept applications starting April 1st, 2016.

h1b visa status
  • Random Selection or Lottery

Given the trend in the past three years, USCIS is expected to receive more petitions than it can actually accept. This scenario is expected to result in the use of a computer generated random selection process or lottery as USCIS had done in the past. The petitions that are subject to the cap and are not selected will be rejected.

USCIS
DAVIES & ASSOCIATES SERVICES FOR H-1B EMPLOYERS AND EMPLOYEES

At D&A, we cater to the needs of both the employers and employees. Our lawyers acknowledge the specific need to fill the crucial specialty occupation positions to maximize company productivity as well as the desire of employees to stay in the United States and have gainful employment.

The demand for H-1B visas is consistently growing but the total annual cap remains fixed. Now, more than ever, there is a pressing need to get things done right the first time to improve your chances of securing an H-1B visa. Our experienced lawyers have successfully obtained H-1B visa approvals for different types of employers and varied specialty occupations with our hands-on and individualized approach. At D&A, we can competently guide you through every step of the way.

Consulting with employers and employees

At D&A, we recognize the need to take the time discuss the case or situation of every client in order to confirm whether the H-1B visa is the best visa solution available for the employer and employee. We open the discussion to possible alternatives and clarify respective responsibilities of every party. We plan accordingly given the timing issues with the H-1B application process.

Preparing your H-1B application package

Once we confirm that the H-1B visa is right for you, our lawyers will prepare your application package conscientiously to avoid Request for Evidence (RFE) or denials. It is a fact that there are many applications are denied for failure to meet the requirements, incomplete job description, inadequate showing of employer-employee relationship or even incorrect filing fees. Given the competition for H-1B visas, the employer and the employee cannot afford to make a mistake. At D&A, we commit to do things right the first time.

Submitting your application

At D&A, we will submit your application to the proper government agency on time. With our experience, we are fully aware with the timing issues and plan accordingly. After submission, we will coordinate with appropriate government agencies and update you on the developments consistently. You also have complete access to your records online.

Client Reviews
★★★★★
Mark is one of the best things happened to me in immigration. I was very skeptical as my last attempt to obtain an L1A was a negative one through another lawyer. Mark came in and… [made] sure that the case [was refiled] successfully. Rest assured, I can vouch for his services and will recommend him highly.
★★★★★
I have been dealing with this firm for the last several years. They got my E2 visa approved followed by my E2 visa renewal as well. They are the best immigration lawyers I have ever met….. No one can give you better service than this firm. Australian E-2 visa applicant
★★★★★
Several lawyers told me I would not be able to get a TN visa. Two weeks after contacting Davies & Associates I was working in New York, visa in hand. I have recommended this firm to several friends and colleagues, they do an excellent job every time." Individual Seeking 'Impossible' TN Visa
★★★★★
Davies & Associates provided me with truly outstanding customer service 7 days a week. Technically brilliant, Davies & Associates not only successfully obtained E-2 visa status for myself and my Indian wife but also seamlessly coordinated my entire legal team, ensuring the timely completion of my acquisition." E2 Visa Applicant and Business Owner
★★★★★
I was qualified as a physician in a foreign country. Being on a J-1 visa I was facing having to leave the United States and return to my home country. Davies & Associates secured one of only 30 J-1 visa waivers available in my State, allowing me to work for a US hospital and remain in the United States." Doctor Seeking J-1 Visa Waiver
★★★★★
My exisiting immigration lawyer, who has a global reputation in immigration law, told me that "it couldn't be done". Someone suggested I speak to Davies & Associates and they obtained the immigration benefits I wanted. I will always use this firm in the future, they are miracle workers." Small Professional Business With International Offices
★★★★★
I am very satisfied with the services Mark Davies has provided me. He has a very extensive knowledge in immigration laws and has a thorough approach to any case." U Visa Applicant, A Victim of Crime
★★★★★
There is no question that Davies & Associates is clearly the leading E-2 visa law firm in the United States." E2 Visa Applicant and Business Owner
★★★★★
Extremely knowledgable, available, and reliable Mark was a god-send when dealing with USCIS. He is very experienced so he knows the ins and outs of the process, can predict response times and is very available to answer questions in a timely and friendly manner. Highly recommended to anyone trying to navigate a complicated immigration process at any stage." Syrian Marriage Based Immigrant Visa Applicant with Two Year J-1 Waiver
★★★★★
I highly recommend Davies & Associates LLC Mark Davies is a joy to work with. His extensive knowledge, speedy response and attentive service took away all my fears of dealing with immigration and visa applications. He is very generous with his time in explaining every step along the way and I have already and will in the future recommend him to anybody who is looking for an immigration lawyer." Small Business Owner and E-2 Visa Applicant