H-1B Visa

The H-1B is a Professional/Technical Business employment Visa. It is good for a maximum of 3 years from date of issue and is renewable once for another 3 years. The job opening for which H-1B is obtained must require a Bachelor’s degree or higher. The prospective employer “sponsors” the candidate for employment. That is, the employer petitions the USCIS to grant the H-1B to the candidate. This process takes a minimum of 4 weeks, whether for a new H-1B or for a renewal of the H-1B.

The H-1B is issued to the candidate employee only for the particular employer who makes the petition and is not valid for other employers. The employee will hold a form 1-797 “Notice of Action” which authorizes him/her to work for that specific company. Application for H-1B renewal must be made before the initial expiration date. BCIS grants a 20 day grace period to an H-1B holder whose expiration happens while renewal application is in process. During this time, the H-1B holder may work, but not for a new employer.

On October 17 and 30, 2000, President Clinton signed into law several bills which significantly change the H-1B program as well as the employment based immigration program. Prominent among these bills is the American Competitiveness in the Twenty-First Century Act (AC21).

Section 214(g) of the Immigration and Nationality Act (Act) sets an annual limit on the number of aliens that can receive H-1B status in a fiscal year. The cap is set at 65,000.

AC21 exempts H-1B workers who are employed by or have an offer of employment from:

  • Institutions of higher education;
  • Related or affiliated nonprofit entity, or
  • Nonprofit or government research organization.

AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an “exempt” employer to an employer that does not have an exemption.

Almost all of the provisions of AC21 and the related legislation were effective immediately upon enactment. The law was officially enacted on October 18, 2000. The sole exception is the increase in H-1B petitioner fee from $500 to $1000, which took effect on December 17, 2000, 60 days after enactment.

Employers now exempt from paying the fee include:

  • Institutions of higher education and related or affiliated non-profit organizations;
  • Non-profit or governmental research organizations;
  • Any employer who is filing for a second extension of stay for an H-1B nonimmigrant;
  • Primary or secondary education institutions; or
  • Nonprofit entity engaged in “established curriculum-related clinical training of students”.

The USCIS published a Q & A for the H1-B Visa in 2000. For further information, please visit this section of the USCIS website: H-1B Questions and Answers

An H-1B holder who wishes to change jobs (to work for another company not named on his 1-797) must secure a new “sponsorship” (new H-1B) from another company before leaving his/her first company. Any number of new companies may “sponsor” (i.e., petition USCIS for the H-lB) the same candidate. In other words, a candidate can entertain several new offers from prospective new employers.

An H-1B holder making a 3-year H-1B renewal or wishing to change jobs (which requires a “new” H-1B) is not counted in the annual quota. However, the H-1B holder may not work more than 6 consecutive years under any number of H-1Bs. At that point, the H-1B holder must leave the USA for at least 1 year or have secured a different Visa (typically Permanent Residence).

 

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