H ONE B FAQs: FREQUENTLY ASKED QUESTIONS re: H-1B

Who is eligible for an H-1B?

The H-1B is a nonimmigrant visa that enables professionals in "specialty occupations", i.e., those that require a minimum of a baccalaureate, to work in the United States. A U.S. degree or acceptable foreign alternative is required.

In some cases, work experience and education may be combined to meet the requirements. Non-graduates may be employed on an H-1B VISA where they can claim to be “graduate equivalent” with twelve or more years work experience in the occupation (three years of relevant work experience may substitute for one year of education).

To simplify, you need either a Bachelors degree or 12 years experience. If you have 3 years of higher education and 3 years of experience, this would also probably be sufficient.

It is important to keep in mind that the job offered must be a "specialty occupation," i.e. one that requires four years of higher education.

I don't fully understand the concept of "specialty occupation." I have a Bachelor's degree and a job offer in the same field. Any possible problems?

Yes. Several years ago, our office assisted an employer in filing an H-1B on behalf of a Marketing Manager. The beneficiary had a Bachelor's degree in "Marketing Management" form a renowned university in the United States. Nevertheless, the petition was denied because the government (at that time, INS) argued that one does not need four years of undergraduate education to be a Marketing Manager.

In order to qualify for a "specialty occupation," the occupation in question must actually require four years of undergraduate education.

What is the duration for an H-1B?

The H-1B visa is valid for three years. It is renewable for another three years. After six years, it may be possible to continue renewing the H-1B in certain situations. For example, if your employer has filed an application for Labor Certification on your behalf before the start of your sixth years, you may be able to continue extending your H-1B in one year increments while awaiting approval of your green card.

What are the fees involved?

The employer must pay for form I-129. The fee is currently $320.00. In addition, there is a $500 Anti Fraud and Detection fee. Finally, if the company has 25 or more employees, there is a training fee of $1500.00. If the company has less than 25 employees, this fee is $750.00. Therefore, the total filing fee for a company with over 25 employees is $2,320.00.

If your company is filing an extension on your behalf after 3 years, the only fee is for form I-129, $320.00.

It is important that the application be submitted on April 1, 2008 in view of the quota. Even if the application is submitted on day one, there is no guaranty that your application will be selected for adjudication.

How does the H-1B visa quota system work?

On October 1st, the USCIS makes available a certain number of H-1B visas for the next 12 months.

The Quota for the Fiscal Year (FY) 2009 (October 1st, 2008 to September 30th, 2009) is 65,000. In addition, there is also a quota of 20,000 for US Master Degree Holders. The total quota is therefore 85,000.

The first date one can apply for the H-1B Visa is 6 months before the requested start date. On April 1, 2008, the employer may submit an application for a start date of October 1, 2008.

It should be noted that H-1B visa holders are not subject to the quota when applying for a transfer to another company or an extension with the same company.

If a Public School Systems is affiliated with a University (usually for student teaching), it will likely be exempt. Non-profit organizations affiliated with a University are exempt from the annual quota.

I am currently on OPTIONAL PRACTICAL TRAINING (OPT) which is scheduled to expire on July 15, 2008. If an employer files for the H-1B Visa for me on or after April 1, 2008, may I remain legally in the US until October 1, 2008 when my H-1B employment begins?

If your OPT expires ON or AFTER 8/1/08, you will be issued a change of status and an I-94. This means you will NOT be required to leave the US for Consular Processing. This is because you are allowed 60 days after your OPT expires to remain in status in the US.

If your OPT expires BEFORE 8/1/08, your H-1B petition will be approved, but your change of status will NOT be approved. You will be required to leave the US and appear at an American Consulate for an H-1B visa stamp before returning to the US to start work on 10/1/08. (It would be advisable to bring a copy of the complete H-1B application that your employer submitted.

To avoid leaving the US, you must somehow maintain legal status. A possible solution is to re-enroll in school from the time your OPT or grace period expires until 10/01/08.

Are H-1B Visa Holders required to pay US income taxes?

You bet. An H-1B visa holder is subject to withholding of Social Security (FICA) tax as well as federal and state income taxes. H-1B visa holders are taxed as "resident aliens", on their worldwide income and may claim deductions for family members.

There is a risk that my employer may lay me off. If this happens, what should I do? Will I be out of status?

USCIS has indicated that it considers H-1B Visa holders to be out of status once their employment ends, unless the H-1B holder has filed a petition to transfer their visa to another company or another type of visa (example: F-1 Student Visa, B-2 Tourist Visa, etc.). It has been rumored that H-1B holders have 10 days or 30 days after they are laid off to file a transfer petition. This is not true, however the USCIS has stated they are taking into account the current economic slowdown into account when adjudicating H-1B Transfers. As in many other aspects of immigration law, the adjudicators have a great deal of discretion.

I am currently in H-1B status with company A. Company B wants to hire me. And I would like to accept. What do I do?

Company B must file a petition to transfer your H-1B visa to their company. You may work for Company B immediately after the petition is filed with the USCIS. You may not commence employment until the petition is filed . To be in status, you should be working with your current employer until the new petition is filed.

Can an H-1B Holder start his or her own company and work for that company?

Yes, an H-1B Holder may start his own company and work for that company. In order for the person on an H-1B to work for their own company, the company must file a petition on behalf of the beneficiary (i.e. the person who will be working there.) In this scenario, it is prudent to await approval before actually working for the new company.

Individuals who are not citizens or lawful permanent residents may not own the shares of an S corporation.

It should be noted that the USCIS will not approve the petition unless they are convinced that the company is a real, legitimate company and will be able to generate enough revenue to pay your salary at least the prevailing wage.

It would be advisable to provide a business plan as well as copies of contracts with client companies, and a business lease.

PLEASE BE ADVISED THAT THE INFORMATION IS THIS PAGE IS HIGHLY GENERAL AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE.