H-1B CHECKLIST & PITFALLS

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The H1B visa is a non-immigrant visa designed to allow U.S. employers to recruit employ foreign professionals in specialty occupations within the U.S.A. for a specified period of time. The H-1B program provides the opportunity for foreign workers in specialty occupations to legally live and work in the U.S. for a total of 6 consecutive years, and entitles their spouses and children (under the age of 21) to accompany them and legally live in the U.S.A. on an H-4 visa. However, the spouse and children have to obtain their own work visa for working.

Under H-1B visa requirements, the company, organization or the employer is the petitioner. The petitioner must file an H-1B petition for hiring the employee, while the foreign worker is the beneficiary. Foreign individuals themselves cannot apply for an H-1B visa to allow themselves to work in the U.S. The number of H-1B visas issued each year is subject to an annual cap (known as H-1B cap) that is determined by the US Congress.

Foreign workers must possess at least a bachelor’s degree or its equivalent. This 
requirement can usually be met by having a 3-year degree and 3 years of relevant
post-graduate experience. Occupations that qualify for H-1B visas typically require highly specialized knowledge in a field of human endeavor including, but not limited to IT, Architecture, Engineering, Mathematics, Physical Scientific Research, Social Science, Biotechnology, HealthCare/Medicine, Education, Law, Accounting, Business, Theology, Arts, Computing, Finance, Accounting, Banking, Marketing, Sales, Recruiting, and Telecommunication.

Aside from the requirement that the position be a specialty occupation, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor (DOL). An employer filed LCA attests that the H1B visa worker is being paid the prevailing wage for the work being performed, and that employment of the foreign worker will not adversely affect the working conditions of similarly employed U.S. workers.

The initial H-1B visa may be issued for up to three years. It may then be extended in the first instance for up to two years, and later on for one year, for a maximum of 6 consecutive years. In some cases, the H-1B visa can be extended beyond the 6-year limits. The H1B visa can also “recapture” time spent abroad while in H-1B status. If an alien opts to “recapture” time abroad, then periods of time spent not in the U.S. will NOT count against the 6 year limit of the H1B visa.

  • FORMS
  • I-129, Petition for Nonimmigrant
    Worker
  • H Supplement
  • H1-B Data
    Collection
  • I-907, Premium
    Processing (optional)
  • Certified LCA from
    the DOL*
  • FEES
  •  
    $325

    $500 Fraud Fee (if
    applicable)

    $750/$1,500
     

  • None
  • None
  • $1,225
  • None
  • EVIDENCE FROM EMPLOYER
    • Department of Labor certified LCA, Form ETA 9035;
    • Current Job
      Offer
    • Company’s information. Including but not limited to: Tax Returns, Company’s brochures, printouts of Company’s website, Incorporation Documents.
  • None
  • None
  • None
    • Prevailing Wage;
    • Location of the Employment;
    • Job Description,
  • EMPLOYEE’S DOCUMENTS
    • Education credentials (with English translations when applicable)
    • Master Degree Certification if the visa is being filed based on the beneficiary’s earned master's (or higher) degree from a U.S. University;
    • Copy of your current resume;
    • Copy of your passport;
    • Copies of I20, if
      you have a
      degree from US;
    • Copy your I-94
      card.
    • Diploma
      Evaluation if
      applicable
  • None
  • None
  • None
Department of Labor

PITFALLS:

  • 1 H-1B REGULAR CAP:
    • A Requested start date must be on or after October 1st and within six months of filing;
    • B Includes current H-1B beneficiaries that were previously cap exempt and are now seeking to change to cap-subject employment
    • C Select the box for Item A. in Item Number 1 on Section 3 of Page 20 of the new Form I-129, with a revision date of 08/13/2015. For older versions of Form I-129 (with a revision date on or after 10/23/14, but before 08/13/15), select the box for Item A. in Item Number 1 on Part C of Page 20.
    • D If you are filing your petition under the Regular Cap, indicate by Printing “Regular Cap” at the top of Form I-129.
  • 2 H-1B ADVANCED DEGREE EXEMPTION:
    • A Requested start date must be on or after October 1st and within six months of filing;
    • B Beneficiary has earned a master’s (or higher) degree from a U.S. institution of higher education;
    • C Select the box for Item B. in Item Number 1. On Section 3 of Page 20 and complete Question 2, Section 3 on Page 20 of Form I-129 (revision date of 08/13/15. For older versions of Form I-129 (with a revision date on or after 10/23/14, but before 08/13/15), select the box for Item B. in Item Number 1. On Part C of Page 20 and complete Question 2, Part C on Page 20
    • D If you are filing your petition under the H-1B Advanced Degree Exemption, indicate by printing “U.S. Master’s” at the top of Form I-129.
  • 3 CAP-GAP PETITIONS:
    • A Beneficiary’s current status is F-1 (academic student) and he or she has not violated the terms or conditions of his or her F-1 status.
    • B Requested start date on the I-129 cap subject petition must be October 1st and within six months of the filing date;
    • C Must be requesting a change of status from F-1 to H-1B;
    • D If you are filing a cap-gap petition, indicate that the beneficiary is eligible for cap-gap by writing “Cap-Gap” at the top of the first page of Form I-129.
  • 4 CHILE/SINGAPORE H-1B1 CAP:
    • A Requested start date on the I-129 cap subject petition must be October 1st and within six months of the filing date;
    • B Beneficiary is a nation of Chile or Singapore;
    • C Select the box for Item C. in Item Number 1. On Section 3 of Page 20 of Form I-129 (revision date of 08/13/15). For older versions of Form I-129 (with a revision date on or after 10/23/14, but before 08/13/15), select the box for Item C. in Item Number 1. On Part C of Page 20.
    • D Complete and submit Page 11, Trade Agreement Supplement to the new version of Form I-129 (revision date of 08/13/15 or later). For older versions of Form I-129 (with a revision date on or after 10/23/14, but before 08/13/15), complete and submit Page 10, Trade Agreement Supplement.
  • 5 H-1B CAP-EXEMPT OR NON-CAP H-1B EXTENSION OF STAY:
    • A A If the petitioner is cap-exempt or the H-1B petition is otherwise not subject to the cap, select the box for Item D. in Item Number 1. On Section 3 of Page 20 and complete Question 3, Section 3 on Page 21 of Form I-129 (revision date of 08/13/15). ). For older versions of Form I-129 (with a revision date on or after 10/23/14, but before 08/13/15), select the box for Item D. in Item Number 1 on Part C of Page 20 and complete Question 3, Part C on Page 21.
    • B Includes current H-1Bs that were previously counted towards the cap
    • C B Included amended petitions where the petitioner is seeking to notify USCIS of changes to employment conditions of a current H-1B beneficiary.

Disclaimer: this checklist is provided to assist H-1B petitioners in completing H-1B Applications. It is not a substitution for or alteration of statutory or regulatory requirements or legal advice. We recommend that you seek legal counsel and review the relevant statutory or regulatory requirements, as well as the appropriate form instructions, before completing and submitting Form I-129.

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