The H1B nonimmigrant program is one of the most versatile and widely used work visa programs in the United States. Therefore, having a good understanding of the program can be helpful for both workers and their respective employers. Below are some of the most common H1B questions received by the Murthy Law Firm, sent from both foreign nationals and H1B employers.

1. What is an H1B?

H1B is a nonimmigrant visa category that allows a foreign worker to come to the United States and work in a “specialty occupation,” which includes many professional positions. The H1B gives a foreign national permission to work in the U.S. and a status that allows her/him to lawfully remain in the U.S. on a temporary basis. Generally, the maximum period that a worker can be in the U.S. in H1B status is six years, which can be granted in increments of no more than three years at a time. There are exceptions to this rule permitting extensions beyond the six years when an employer or the worker on his/her own behalf has filed for lawful permanent resident (commonly referred to as “green card”) status and certain conditions have been met.

For example, an extension may be granted if at least 365 days have passed since the filing of a labor certification application or, in the case of a self-sponsored worker, an immigrant petition. An extension may also be available where an immigrant petition has been approved but the worker’s priority date is not yet current, meaning a green card is not yet available.

2. What is a specialty occupation?

A specialty occupation is a job that requires the “theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor’s degree or higher in a specific specialty as a minimum for entry into the occupation in the United States.” This includes many professional positions.

The position must require a bachelor’s (or higher) degree in the specific field that is directly related to the offered job. The fact that a prospective H1B worker possesses a bachelor’s degree does not make that position a specialty occupation. Also, if a position requires a bachelor’s degree in any specific field or a more general field of study such as Business Administration, it is most likely not considered a specialty occupation, as the bachelor’s degree must be in the field in which the foreign national works in the U.S. In addition, the H1B beneficiary must have the required education or its equivalent at the time the case is filed.

3. What if the worker does not have a U.S. bachelor’s (or higher) degree?

Generally, a prospective H1B worker can qualify either with a bachelor’s (or higher) degree awarded by an accredited U.S. college or university; but there are alternative ways to meet this requirement. A degree awarded by a foreign university that is equivalent to a U.S. bachelor’s (or higher) degree will meet the specialty occupation degree requirement. Alternatively, if a candidate has a combination of both education and experience, or experience alone, that is determined to be the equivalent of a U.S. bachelor’s (or higher) degree she/he can qualify for the H1B.

4. Is there a particular salary that an employer must pay a worker in H1B status?

Yes. An H1B employee must be paid no less than the greater of the prevailing wage or the actual wage for the position.

A prevailing wage is specific to a position within the local area where the job is to be performed, based on the education and experience the employer requires for the position. The U.S. Department of Labor (DOL) has published guidelines on its website that explain how to determine the prevailing wage. Also, an employer can ask the DOL to determine the prevailing wage. The “actual wage” is the wage paid to all other employees at the work location with similar experience and qualifications for the position with that particular employer. If the actual wage is lower than the DOL’s prevailing wage, then the wage must meet the DOL’s prevailing wage.

5. What is the Labor Condition Application (LCA)?

The LCA filed and certified as part of the H1B program should not be confused with the Labor Certification, also known as a PERM application, that is filed as part of the green card process. An LCA for an H1B petition must be certified by the DOL before filing an H1B petition with the U.S. Citizenship and Immigration Services (USCIS). The DOL is responsible for ensuring 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.

The LCA requires an employer to make a series of attestations (signed under oath with federal criminal sanctions) regarding the correct wage being offered, the work location, working conditions, and termination of U.S. workers in the same position. The LCA is submitted and certified electronically. A certified LCA must be filed with the H1B petition to USCIS and the failure to include it generally will result in denial of the H1B petition. An employer filing an LCA on its own behalf must register with the DOL and establish an online account before submitting the application. When an attorney files on the employer’s behalf, the attorney can submit the LCA through their own account; however, in either case, the employer’s Federal Employer Identification Number (FEIN) must be verified with the DOL before the LCA can be certified. Once verified, the FEIN does not need to be verified again for future LCA filings.

6. What is the H1B cap and how does it work?

The H1B cap is an annual limitation on the number of individuals who may be granted H1B status, not including those who are exempt from the cap (which includes those who previously have been counted against the H1B cap). The cap is set by Congress and currently is at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for nationals of Chile and Singapore. This does not include the 20,000 additional H1B numbers available to persons who have earned master’s or higher degrees from public or non-profit U.S. Universities, commonly referred to as the master’s cap.

USCIS typically conducts a randomized selection of people registered for the H1B cap lottery by potential U.S. employers. An employer interested in sponsoring someone for a cap subject H1B starts by submitting a Registration during the period announced by the USCIS. Once the Registration period closes, the USCIS generates a list of eligible beneficiaries and issues Selection Notices to their prospective employers. A Selection Notice is required to file an H1B cap petition. Among other details, the Selection Notice will state the filing period and whether the sponsored employee is counted against the regular or master’s cap.

7. When should H1B petitions for cap-subject cases be filed and how does the timing work?

An H1B petition for a cap-subject worker can only be filed with USCIS if a Selection Notice was issued to the U.S. employer. The H1B petition cannot be filed any earlier than April 1st. The federal government’s fiscal year begins on October 1st and ends the following September 30th. Under the general rule, cases can be filed no more than six months in advance of the requested start date. Therefore, the earliest that cap-subject H1B petitions can be filed by employers is the first day in April, requesting an October 1st start date. However, the H1B petition can only be filed within the period designated on the Selection Notice.

8. I am graduating from a master’s program in the U.S. this coming May. Can the employer register me for the lottery under the master’s cap?

This depends. If one has completed all the requirements for the degree by the time the H1B Petition will be filed, then the employer may complete the registration for the master’s cap. When a person is picked in the H1B lottery, the Selection Notice will specify the period in which to file the H1B petition. By law, the USCIS should provide at least 90 days, starting on April 1, to file the cap H1B petition.

It is not necessary to have the physical diploma in one’s possession. However, a letter should be submitted from the university stating that the degree has effectively been awarded and the diploma will be sent or presented at a later date. One should not apply for the master’s cap if the degree requirements will not be completely fulfilled before the end date of the typical 90-day Selection Notice filing period.

9. Are there any exceptions to this cap? Are there people who do not have to compete for a new H1B?

The law has a few built-in exceptions to the H1B cap. First, if a foreign national was counted previously against the H1B cap and has not utilized the full six years (or is eligible to extend beyond the six-year limit), the individual is considered exempt from the H1B cap.

Second, in certain instances, the job itself or the employer may not be subject to the numerical limitation on H1Bs. Employment by or at an accredited, nonprofit university, or a university’s nonprofit affiliate is exempt from the H1B cap. Similarly, there is a cap exemption for employment at certain nonprofit or governmental research organizations.

Finally, a physician who has been granted a qualifying waiver to the J-1 home residency requirement (e.g., Conrad 30 waiver) is permanently exempt from the H1B cap.

10. Can I file an H1B petition on my own? Do I need to be sponsored by an employer?

Only a U.S. employer may file an H1B petition on behalf of a foreign national. A person cannot self-sponsor for H1B. However, a person who owns a separate U.S. business entity can be sponsored by that employer to work in H1B status. Where the benefic...

Murthy Law Firm | U.S Immigration Law

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