Changing employers

Basics

The H-1B “specialty occupation” visa is for occupations that require a completion of a specific bachelor’s or higher university degree for entry-level positions.

FAQs:

What are the requirements for the sponsoring employer (U.S. company)?

The employee must possess a university degree (a four-year bachelor’s degree or higher) in the same field that is generally required for jobs in the given occupation. In alternative, the employee may qualify for the job through a combination of education and experience, or through experience alone. Generally, three years of professional experience in the field are considered equivalent to one year of studying. 12 years of professional experience in the field in progressively responsible positions are considered as an equivalent to a four-year bachelor’s degree. People who possess degrees in other fields generally must demonstrate at least 6 years of professional experience in progressively responsible positions.

What are the requirements for the sponsored employee?

What are the requirements for the proposed job?

The job must be a “specialty occupation.” Most “specialty occupations” are professions that require at least a bachelor’s degree in a specific field for entry-level positions. These include engineers, lawyers, teachers, medical doctors, etc. However, especially complex positions within other occupations, for example higher-level jobs in business, management and marketing fields, may also qualify for H-1B visa if the petitioner can prove that the job requires a degree in a specific field. Such H-1B petitions require more extensive preparation, especially when the client is a startup or a small company, but we’ve done a great number of such petitions successfully.

Are there any rules about salaries to be paid H-1B workers?

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What are “H-1B Cap” and “H-1B Lottery”?

New H-1B visas are subject to annual quota of 65,000 (Regular Cap), plus additional 20,000 reserved for graduates of the U.S. masters’ or higher programs (U.S. Master’s Cap). The chances to get through the lottery depend entirely on the number of applications in each given year. In 2018, the total number of applications was about 190,000. Clearly, people with U.S. master’s degrees have a better chance to get in, but there are no guarantees for any applicant. The lottery is conducted electronically. The filing period for the H-1B lottery is in the first 5 business days of April, and the start date of the employment is always set for October 1, the beginning of the following financial year. The employer does not have to pay government filing fees for cases that are not selected in the lottery (but it still has to pay our office’s legal fees for the preparation of these petitions).

Are there H-1B petitions that are exempt from the quota and do not have to participate in the H-1B Lottery?

Yes, many H-1B petitions are exempt. First of all, most people who’ve had H-1B visas before are exempt from the quota. For example, a person who is currently in H-1B status working for another employer is normally exempt from the quota. In addition, the following categories of employers are exempt from the H-1B quota: most institutions of higher education, nonprofit organization or entity related to or affiliated with an institution of higher education, nonprofit research organization or a governmental research organization.

What is the longest I can stay in the United States with the H-1B visa?

The initial approval of the petition is for a maximum of three years. Generally, a foreign worker cannot remain in H-1B status for more than six years. If the maximum time has been reached, the foreign worker has to leave the United States and remain outside of the country for at least 12 months. After that the person will be eligible for a new H-1B 6-year term, but the petition on their behalf will be subject to the H-1B annual quota. There are exceptions to this rule for employees who are being sponsored for permanent residence by their employer and have a labor certification or an employment-based immigrant petition filed on their behalf.

I am an entrepreneur who founded a company in the United States. Can I apply for an H-1B using my own
company as an employer?

If you are sole or majority owner, probably not. H-1B generally requires the existence of “employer-employee relationship” between the company and the sponsored worker. There are some exceptions to this rule, but for the purposes of this FAQ it’s sufficient to say that filing such a petition would be risky. However, if you’re a co-founder with less than 50% stake in the company, you may be able to demonstrate the requisite “employer-employee relationship.”

Can H-1Bs work part-time?

Yes, as long as the petition is filed and approved for part-time employment.

Can H-1Bs be 1099 contractors?

No, H-1B should be W-2 employees.

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