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H-1B

Question 1.
What is the H1B cap?
The H1B cap is an annual limitation on the number of NEW visas available for H1B workers. The cap is currently set (by Congress) at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for programs for nationals of Chile and Singapore. In addition to the 65,000 listed above, 20,000 additional visa numbers available to persons who have earned masters' or higher degrees from U.S. institutions of higher education.

Question 2.
When should I file an H-1B application that is subject to the H-1B cap?
The Federal Goverenment's fiscal year begins on October 1st. Cases may be filed six months in advance of the requested start date. Therefore, cases can be filed on the preceding April 1st. However, the application can be prepared (and is recommended to be prepared) prior to that date. Our firm will begin preparing H-1B applications subject to the cap, as early as January.

Question 3.
Is every type of employment subject to the H-1B cap?
Are there certain types of employment that are exempt from the cap?
Some employment is exempt from the need for a cap number. Included is employment "by" or "at" universities and their nonprofit affiliates, as well as nonprofit and governmental research organizations. Please consult an attorney prior to filing an application that is deemed to be cap exempt to insure that the employment falls within the definition of cap exempt.

Question 4.
How do I qualify for H1B employment?
To qualify for H-1B employment the offered position must require a bachelor's degree or its equivalent or greater. The education must be in a field of specialized knowledge. One must have the required education or its equivalent at the time the case is filed to qualify.

Question 5.
When can I begin working for the employer who has filed my H-1B application?
It depends. If the beneficiary of the H-1B application (the prospective employee) is currently working on an H-1B visa with another employer, that individual may begin working with the new employer once the application has been received by the U.S. CIS. Otherwise, the beneficiary generally must await an approval of the H1B petition and a change of status.

Additional considerations need to be examined regarding the length of the previous H-1B approval notice. You should contact an attorney to assure that you are eligible to start employment with a new employer to avoid unlawful employment.

Question 6.
How long does an H-1B application take to get approved? Is there anything I can do to expedite my application?
Each USCIS service center and each USCIS officer has a different caseload and each one takes a different amount of time to process cases. The U.S. CIS has posted on their website approximate times for various types of applications, including H-1B applications. A link is provided on our main page.

A Premium Processing application may be filed with an H-1B application to expedite the process. A premium process application requires additional filing fees. The U.S. CIS will usually give a response (decision or a request for additional evidence) within 15 days of receipt of the application.

Question 7:
What is an RFE? How do I avoid getting one?
An RFE is a Request for Additional Evidence. An RFE is submitted by the U.S. CIS, when it does not have enough or the proper information to make a determination on an application. Additional time is provided to the Petitioner (the employer) to provide additional documentation in support of the H-1B application.

There is no absolute way to avoid receiving an RFE on an H-1B petition. However, providing additional documentation that is often requested with the initial application can avoid delay in getting a final decision and approval. We can provide you with a list of documents to provide in the application that will bolster the application and may reduce the chances of receiving an RFE.

Question 8.
I'm in F-1 status and have a practical training work permit. When should I file for an H-1B application? Should I wait till my practical training work authorization has expired?
It depends. If you employment is subject to the H-1B cap, then you will need to file your application in a timely manner to assure that the petition is accepted within the H-1B cap for the year you wish to begin employment. Both the Petitioner (employer) and beneficiary (employee) should be mindful of all approval and expiration dates for employment authorization to assure that an employee on practical training or an H-1B has proper work authorization.

Question 9:
Can I change my status from an H-4 (spouse/dependent) to an H-1B?
You will need to confirm that the employment position is one that qualifies for an H-1B visa. For additional information on the H-1b requirement, please see the link on our main page for the H-1B visa. In addition, you will need to confirm that the H-1B cap has not been met for those position that fall within the H-1B cap.

Question 10.
I currently hold H1B status and want to change employers. Am I subject to the H1B cap?
This depends. Typically, if one is in H1B status and has already been counted against the H1B cap, s/he is not subject to the H1B cap. However, individuals who have only held H1B status with cap-exempt employers are not deemed to have already been counted against the H1B quota. For a thorough analysis and strategies please contact our office to determine the options available.

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