The Shapiro Law Firm, LLC
Attorneys & Counselors at Law
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H1B VISAS

What is an H-1B visa?

H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. Our H1B Attorneys located in New York have extensive experience in H1B filings.

What is the annual limit on H-1B visas?

The current law limits, or caps, the number of H-1B visas available for issue each year to 65,000. Of these, the first 20,000 are reserved for applicants who have a Master's Degree or higher. If the Master's Degree cap is not reached, the remaining available H-1B visas will be issued to the general H1-B applicant pool.  There are other statutory exemptions to the H-1B cap, including, but not limited to, applicants who are or will be employed by an institution of higher learning, a nonprofit research organization or a government research organization.

How long can one be in H-1B status?

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or 365 days or more have passed since the filing of an EB immigrant petition.

Must an H-1B Alien work at all times?

As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

What is a "SPECIALTY Occupation?"

A Specialty Occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are Specialty Occupations.

What if an alien’s circumstances change?

As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

Who can an H-1B employee work for?

H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

Can an H-1B visa holder travel outside the United States?

Yes. An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Why must H-1B petitions be filed around the first week of April each year?

Employers  who  intend  to  employ  a  foreign  national  on  an  H-1B  visa  must  begin  the  process  months  in  advance  so  that  they  may  timely  file  the  H-1B  visa  petitions  on  or  around  the  first  week  of  April  each  year,  the  date that  filings  for  initial  H-1B  visas  are  accepted  by  USCIS.    A  H-1B  petition  filed  by  the  annual  deadline,  if  approved,  will  allow  the  employee  to  begin  working  on  or  around  October  of  that  year.  Since  the  H-1B  visas  has become  more  and  more  complex  and  filing  timely  is  crucial,  U.S.  employers  who  intend  to  employ  foreign  workers  on  H-1B  visas  are  advised  to  consult  a  knowledgeable  and  experienced  U.S.  immigration  attorney. 

Can an H-1B Alien intend to immigrate to the United States?

Yes. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.

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