Law Offices of Stuart J. Reich, PLLC

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H-1B Nonimmigrant Visa FAQs

Q: Who is eligible for an H-1B?

A: An individual coming to or remaining in the U.S. to perform a job which qualifies as a “specialty occupation” (an occupation which requires a Bachelor's or higher level degree or the equivalent, plus theoretical & practical application of a body of highly specialized knowledge). Also eligible for H-1B visas are fashion models and people coming to the U.S. to provide services to a Department of Defense cooperative research project.

Q: How does US Citizenship and Immigration Services determine whether a position is a "specialty occupation"?

A: This is a complex question, as there several possible tests which can be used to determine this. These tests deal with the complexity of the position, common practice in the company and in the industry with regard to requiring a Baccalaureate or higher degree, and other factors.

Further, USCIS will examine whether there is a relationship between the baccalaureate (or higher) coursework and the duties & responsibilities of the job, and whether the knowledge required is of a type that would be obtained through studies at an institution of higher education (as opposed to knowledge more appropriately learned through on-the-job experience).

Therefore, the job description must be carefully developed and clarified prior to filing for an H-1B visa.

Q: I've heard that there is a "Cap" on H-1Bs limiting the number available every year - what does this mean?

A: There is a limit of 65,000 H-1B visas available each federal fiscal year (October 1 of one year through September 30 of the following year), with an additional 20,000 H-1Bs available only for individuals with Master’s degrees from US institutions of higher education.

However, some of the base 65,000 are reserved for certain categories, and not all H-1Bs are counted against the cap. There are a great many complicated issues related to the cap - so many that they are explained separately in our H-1B Cap FAQs. This page also explains who gets selected for a cap-subject visa, and how

Q: Is there anything different about the procedure for obtaining an H-1B visa as opposed to the procedure for applying for most other nonimmigrant visas which allow employment, like the L-1, O-1 and most P categories?

A: Yes – actually, quite a bit.
Before a petition can be filed with US Citizenship and Immigration Services, a Labor Condition Application ("LCA") must first be approved by the U.S. Department of Labor. This can be done quickly and will not significantly delay the H-1B filing, but there are many complex rules and regulations surrounding the LCA. Therefore, we cover the LCA separately in our Labor Condition Application FAQs.

Q: I've heard that in some cases I can begin work with a company even before the H-1B is approved - is there any truth to this?

A: This only applies where a new employer applies for an H-1B for a foreign national already working for a U.S. employer in valid H-1B status. The filing of the petition for the new employer allows the foreign national to begin work with the new employer.

Of course, there is some risk involved in doing this - in the event that the amendment petition is not approved, the foreign national will have been without valid status since they left their previous employer.

Q: If I start my own business, can I get an H-1B to work for the business as President or otherwise?

A: Technically, you can obtain an H-1B to work for a company you own if the position qualifies for an H-1B and you possess a relevant bachelor's degree or the equivalent. However, in practice, doing so can be very difficult – especially if control of the business can’t be separated from control of the H-1b job.

Some things have traditionally been issues when applying for H-1Bs for entrepreneurs and company founders. U.S. Citizenship and Immigration Services inquires aggressively into the ability of newly formed businesses to pay the required salaries to begin with, and when the beneficiary of the petition is both the recipient of the salary and the source of funds USCIS can be extremely difficult to please.

Also, it may later be impossible to use the process of Labor Certification to obtain permanent residence for a business owner. It will normally be worthwhile to examine other visa options for a company owner.

Moreover, since the beginning of 2010, it has become much more difficult to obtain H-1B visas for entrepreneurs and founders where a significant amount of equity/ownership is involved. On January 8, 2010, US Citizenship and Immigration Services came out with the "Neufeld Memo" - an administrative memorandum from then-Associate Director of Service Center Operations Donald Neufeld containing guidance to adjudicators at the Service Centers on how to adjudicate H-1Bs under certain conditions.

Q: Can I begin the process of applying for permanent residence while on an H-1B visa?

A: Yes. The H-1B is considered a "dual intent" visa - a visa which allows the foreign national to want to remain in the U.S. temporarily for the time being, but also eventually to wish to stay permanently. Therefore, one may remain in the U.S. or leave and return to the U.S. on the H-1B while pursuing a permanent residence application.


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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.