H-1B Visa and Status

H-1B is a non-immigrant temporary visa that allows U.S. Companies or Nonprofit organizations to employ foreign skilled workers with a bachelor or higher degrees in specialty occupations that require specialized knowledge. The number of issuance of H-1B visa each fiscal year is limited by a cap/quota determined by the U.S. Congress. The current cap is 85,000 with additional 20,000 for foreign workers with a master’s or higher degrees. In addition, non-profit research organizations may hire an unlimited number of cap-exempt foreign skilled workers.

How long is an H-1B Visa for?

The visa is initially granted for three (3) years, and it is extendable to six (6) years.

Can an H-1B Visa lead to a Green Card?

Yes, an H-1B Visa can be a great filing towards receiving or providing a green card. One of the big advantages of H-1B is that it is a “dual intent” visa, meaning that the foreign national may apply for a Green Card without losing the validity of the visa status.

Can I bring my family on an H-1B Visa?

The dependent spouse and children of an H-1B holder are eligible for H-4 visas, but they may not apply for employment authorization, unless other specific conditions are met.

What is an H-1B Cap and H-1B Cap Exempt Organization?

The USCIS only starts to accept H-1B petitions subject to H-1B cap on the first business day of April (April 1st) for visas that count against the fiscal year starting in October. In other words, USCIS accepts H-1B Cap visa applications no more than 6 months in advance of the requested start date. Due to the high demand for H-1B visa under regular cap, it is important that the employers start contacting attorneys early to ensure the H-1B package could be prepared and filed on April 1st of any fiscal year.

However, other cap-exempt H-1B applications are accepted and may start throughout the year. To qualify as a cap-exempt organization, the employer must show that it is one of the following: (1) institute of higher education, (2) governmental research centers, or (3) nonprofit entities affiliated with institutes of higher education or government research centers.
There are some other scenarios not subject to H-1B cap/annual quota.

Can I do an H-1B Transfer and Extension?

A foreign national who holds H-1B status cannot work for employers other than the sponsoring employer. If a foreign national intends to work for two employers or more, each employer must file a separate H-1B petition on behalf of the foreign national for a part-time position.

A change of employer petition (COE) may be filed on behalf of a foreign national who already holds a valid H-1B status in the United States.

H-1B visa status is initially granted for up to three years, and then can be extended for another three years. Once the six-year cap is reached, the foreign national must be physically outside the U.S. for one full year in order to reset the six-year clock. The only exceptions for extensions beyond six years are when the foreign national is a beneficiary of an approved I-140 petition, or is a beneficiary of a labor certification petition or I-140 petition pending for over one year.

I am a J-1, can I receive an H-1B visa?

The H1B Visa is an ideal employment Visa option for J1 Visa Holders. Common J-1 categories for the H-1B are Public school teachers, Physicians, and Graduate students. Although, with higher education or professional career, the J-1 generally has a two-year home residency requirement restriction placed on their J-1 visa and DS-2019. 

Regarding this restriction, our office has years of experience in requesting waivers of the two-year home residency requirement. However, every country is different, and every waiver request is unique. A J-1 School Teacher from Columbia has a different waiver procedure than a J-1 School Teacher from the Philippines or Jamaica.

Moreover, timing is always critical, where some countries process a waiver request in as little as two days, whereas other countries can process closer to one year. The real focus should always be on whether the J1 restriction exists and what is the processing time for a waiver. Processing time is important when talking about an academic year for a public school teacher or the hiring date for a potential employer.

I am an F-1, F-1 on OPT, or F-1 on STEM OPT, can I receive an H-1B Visa?

Yes, an H1B Visa would allow the F1 Student to apply their education to a field of work. Moreover, an F-1 on OPT or STEM OPT may even be able to use the H-1B as a way to continue employment at the same employer/organization.

We at Fickey Martinez Law Firm happily serve North Carolina Employees and Employers for the H-1B visa and other possible immigration options. Please contact our office to schedule a Consultation with our Immigration Attorney.