H1B Visa FAQ: Most Commonly Asked Questions Answered

H1B visas are extremely popular. This is because they are the most common nonimmigrant work visas available to professionals or “specialty workers.” H1B visas are routinely utilized by US corporations and organizations throughout the country, regardless of industry or job duties. In my practice, I often see the same questions posed by foreign nationals regarding the nuances of the visa. I wanted to collect these most “commonly asked questions” and compile the answers for you.

In this guide, I will explain the most complicated H1B visa concepts and simplify them. If you have any questions, feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and I would be happy to help you.

Introduction:

1. H1B Visa Requirements and Process

• What is the minimum education and work requirements to be eligible for an H1B?

• What is the H1B visa process exactly?

2. Timing your H1B

• How long does an H1B visa last for?

• How long does it take to get an approved H1B visa?

• When can I start working on my H1B visa?

3. Popular H1B Benefit: Portability

• What is the “portability” rule for H1B visas?

• Am I qualified to port my H1B visa?

4. Popular H1B Questions from Employers

• What information must my employer provide to file an H1B?

• How much should I get paid on an H1B visa?

• How does my employer determine what the required wage is for my H1B position?

• What is the difference between the prevailing wage and actual wage?

5. Conclusion

1. H1B Visa Requirements and Process

What is the minimum education and work requirements to be eligible for an H1B?

Here, an American employer can apply for an H1B with USCIS (United States Citizenship and Immigration Services) on behalf of a foreign worker, so long as that the offered job requires at least a bachelor’s degree in a field of study related to the offered job.  Common H1B fields include, yet are not limited to, computer sciences, engineering, mathematics, physical sciences, social sciences, architecture, health sciences, law, education, business, accounting, and other positions.

To be a “specialty occupation” the job must:

(1) require a degree or

(2) a combination of education and relevant work experience in a field closely related to the job offered.

For prong two, typically at least three years of related and progressive work experience can be evaluated to equate one year of formal college studies (this is also known as the 3 to 1 rule).

What is the H1B Visa Process exactly?

Pending on your situation, the H1B application process is typically three to four steps:

1. Collect all the information and documents needed for the petition

• Proof of educational or work qualifications, passport bio data page, proof of lawful status, etc.

2. Receive certification of a Labor Condition Application (LCA) with the Department of Labor (DOL)

• As of 2019, this is now done through what is called the “FLAG System.”

3. Preparing and submitting a Petition for Nonimmigrant Worker with the USCIS

• Here, you will submit your supporting evidence (point 1), Form I-129 and H Supplement, the certified LCA, and fees.

4. If you are outside the United States, have violated, or overstayed the terms of your current status, you may need to obtain an H-1B visa stamp from a U.S. Consulate abroad.

• Here, you will need to submit a DS-160, pay your visa interview fees, schedule an appointment at your local consulate, and obtain visa stamping.

Remember that government delays are always a risk at any of the H-1B stages. Due to this, we often encourage our clients to pursue premium processing, where USCIS guarantees a decision within 15 days, provided no additional information is needed from the employer.  The USCIS’ premium-processing program requires a supplemental $1,440 filing fee in addition to the regular H-1B filing fees.

2. Timing your H1B Visa

How long does an H1B visa last for?

Typically, you will be granted H1B status for an initial period of three years and extensions can be obtained for a maximum of six years. Note that you can apply beyond six years of H1B time if you have an approved I-140.

Employers can request for shortened H-1B visa validity (less than three years). This might be for an employee who would work on a short-term project or may be part-time (note that fulltime employment is not required for H-1Bs).  If your employer is requesting part-time H-1B status they must be able to demonstrate that the underlying H-1B employment is your primary purpose for being in America.  H-1Bs authorize a foreign national to only work for the petitioning employer under the specified terms of the visa.  Consequently, an H-1B worker may be the beneficiary of more than one H-1B petition and, therefore, can work for multiple employers at one time.

How long does it take to get an approved H1B visa?

The time it takes to get an approved H-1B can vary greatly. This typically depends on the processing time of the various government agencies involved. H-1Bs are unique as not all visas require both the Dept. of Labor and USCIS to work cohesively. Therefore, if you are thinking about getting an H-1B, try to start your process on the earlier end – keeping in mind that you cannot submit your petition any earlier than six months from the anticipated employment start date.

When can I start working on my H-1B visa?

If you are outside the United States or you are holding another nonimmigrant status other than H-1B (such as an F-1 student visa or L-1A Intracompany Transferee) you cannot begin working for the petitioning employer until the H-1B petition is approved and you have officially switched over to H-1B status. Although, if you are applying for an H-1B change of employer, you may be able to start working and “port” to your new employer upon filing the H-1B petition.  USCIS guarantees a decision within 15 business days if a supplemental $1,440 premium processing fee is paid and your case is not rendered an RFE (Request for Evidence).

3. Popular H-1B Benefit: Portability

What is the “portability” rule for H1Bs?

If you were previously granted an H-1B visa or provided H-1B status, you may begin working for a new H-1B employer as soon as that new employer files an H-1B petition for you. What is considered “filing” for purposes of USCIS? You do not even have to wait for the receipt or I-797 notice that the application has been receipted in; rather, you can actually start upon evidence that USCIS has received the application. Therefore, you are allowed to port to a new employer immediately upon the filing of your new H-1B petition without having to wait for the USCIS approval of the new petition that can take 90 days or longer.

Am I qualified to port my H1B?

To be eligible for immediate employment authorization portability, you must meet three conditions:

• You must have been lawfully admitted to the United States. Meaning, you did not enter without inspection. A lawful admission to the U.S. means that you were processed by CBP and granted an I-94 (presently, these are digitally issued one via CBP). If you are visa-exempt, you may have some other indication of a lawful admission.

• The petition for the new H-1B employment was filed before the end of your period of authorized stay that was either granted by USCIS or CBP. This means that the new H-1B petition must be filed before the end date on the person’s first H-1B petition as indicated on their I-94 or I-797.

• Lastly, you must not have been employed without authorization since you were lawfully admitted to the US.

Please be sure to speak to our office before commencing work under the portability rules, to assure you are not violating your H-1B provisions.

4. Popular H1B Questions from Employers

What information must my employer provide to file an H1B?

The basic information required from your employer petitioner to file an H-1B petition includes:

• Date the company or organization was established;
• IRS identification number;
• The total number of employees;
• Net and gross annual figures, or, if a non-profit organization, the annual budget;
• The specialty worker’s job title and a detailed description of the proposed job duties;
• Salary of job duties;
• Description of benefits;
• Name and title of the person of the employer’s signatory (person who will sign on behalf of the employer); and
• Information regarding the employer and the types of services it provides.

The company must be able to demonstrate the ability to pay the salary offered to the H-1B employee.  Therefore, if your employer has less than 100 employees or is newly formed, they may be required to show extensive documentation to establish this.  In these cases, they may want to furnish a financial statement or tax returns.

How much should I get paid on an H-1B?

In order to protect American workers, petitioning employers must compensate H-1B employee(s) with the same pay rate and benefits normally offered to an American worker in either (1) the same position and geographic area or (2) the “actual wage” previously offered to a similarly employed individual at their company, whichever is the highest of the two. Thus, the mandatory wage to pay an H-1B worker is the higher of the prevailing rate of pay or the actual wage for that position in the area of the work site. Keep in mind that employers are obligated to keep a Public Access File to establish they are paying the employee the required wage and are otherwise complying with the terms and conditions of the H-1B program.

How does my employer determine what the required wage is for my H-1B position?

Remember that the employer must pay the foreign national, H-1B employee, either (1) 100% of the prevailing wage or (2) the actual wage, whichever is higher.

What is the difference between the prevailing wage and actual wage?

The Department of Labor has defined the prevailing wage as the wage paid to workers in a specified occupation within an outlined geographic region. This wage is based upon a Department of Labor’s determination or another “authoritative source.” These authoritative sources are typically a geographically based salary surveys published within the past two years. Note that benefits may not be included in calculating the prevailing wage amount. Furthermore, employers must offer the same benefits to the foreign national as they would their similarly situated US workers - including but not limited to stock options, retirement benefits, vacation time, etc.  If you are working for an educational or non-profit institution, keep in mind that there are special prevailing wage rules that apply.

The actual wage is the amount paid by the petitioning employer to its employees “with similar experience and qualifications for the specific employment in question.” When the employer enumerates “specific employment in question” – in regard to job duties and qualifications – the employer must then delineate (if applicable) among their other employees, to determine which are “similarly employed” based upon:

• Job responsibility and function;
• Qualifications ;
• Education;
• Experience;
• Specialized knowledge; and,
• Legitimate business factors.

If such similarly employed workers are paid different salaries, the employer must be able to justify which of these above factors justify the pay differences.

To protect American wages, the Dept. of Labor does not allow employers to drive down salaries by employing foreign nationals at a lower rate. Thus, the Dept. of Labor requires that the employer retain and sign an actual wage memorandum in a “public inspection file,” along with other LCA materials. This memorandum would include an analysis of the above listed factors and why the foreign national’s pay is justifiably lower.

6. Conclusion

Remember, there are many complicated folds to an H-1B, and most may not apply to you at all. The process may seem daunting at first, although, I am happy to break down these legal complexities and work with you and your employer.

If you have any questions about how you may qualify for an H-1B or if you need help evaluating any complexities with your case, please feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and I would be happy to help you.