ALL ABOUT H-1B STATUS

H-1B Status is one of many options that can be used to bring a foreign national to the United States for work. The H-1B is initially approved for a three year period, but can be extended for an additional three year period, for a total of six years. The H-1B is a nonimmigrant status, meaning it does not automatically lead to U.S. Permanent Residence, or a Green Card. However, a person in H-1B status can apply for U.S. Permanent Residence in a parallel process. In fact, so long as the H-1B Visa Holder starts the permanent residence process prior to the fifth year anniversary in H-1B status, the H-1B status may be extended indefinitely in one year increments until a decision is made on the pending application for permanent residence. The following describes the main requirements for H-1B status in detail, all of these requirements must be met in order to secure approval of an H-1B:

U.S. EMPLOYER SERVES AS THE SPONSOR:

Either an established or a brand new U.S. incorporated company must be the sponsor of the H-1B petition. The U.S. employer can be a start-up, with no financial history and only a business plan to share with Immigration or it can be an established corporation with employees and a financial history in the U.S. Immigration does require that the employer sponsor be properly incorporated and possess a valid Federal Employer Tax Identification Number from the Internal Revenue Service.

EMPLOYER SHOULD HAVE A COMMERCIAL ADDRESS:

While many successful companies started in a basement or a home office, Immigration prefers to see a commercial address for the employer-sponsor. If the employer does not presently possess a commercial address because it is a start-up or new corporation, then we must be able to explain to Immigration either why a commercial address is not needed or show that the business plan calls for a commercial address at some point in the near future.

THE EMPLOYEE / FOREIGN NATIONAL MUST BE A PROFESSIONAL:

The H-1B category is reserved for professionals. As such, one of the first requirements we must satisfy is proving that the foreign national possesses either a four year university diploma from the U.S. or abroad OR the equivalent. If the beneficiary has completed only some university coursework or none at all, s/he may still be eligible. Immigration considers three years of professional work experience the same as having completed one year of university coursework. In this case, to qualify for the H-1B, we need to show twelve years of professional work experience OR a combination. For example, if we show one year of university course work, we also need to show nine years of work experience. Our law firm works with professional credentials evaluators who review foreign university transcripts and work experience and issue a written determination that the person possesses the “equivalence” to a U.S. bachelor’s degree in a specific field of study.

THE JOB MUST BE A SPECIALTY OCCUPATION:

H-1B Status is reserved for professionals working in a field that the Department of Labor has defined as a “specialty occupation.” A job as a Receptionist in which the duties involve greeting clients, answering the telephone and making photocopies, will NOT qualify for H-1B Status. The following is a list of the job titles that based on our practice, are most frequently sponsored for H-1B Status by U.S. employers. There are many more jobs that could qualify for H-1B Status, contact us for a consultation if you are not sure.

Frequently Used Job Titles for H-1B Status:

  • Software Engineer; Database Administrator, Computer Systems Analyst, Programmer, Engineer (any specialty); Engineering Manager, Chief Technology Officer;
  • Financial Analyst, Budget Analysts, Financial Manager, Finance Director, Accountant, Treasurer, Chief Financial Officer;
  • Operations Research Analyst, Consultant;
  • Mid-Level Dental Provider; Mid-Level Medical Provider, Doctor;
  • Marketing Research Analyst, Marketing Manager, Public Relations Specialist, Client Relations Manager, Sales Analyst, Sales Manager;
  • Training & Development Manager, General & Operations Manager, President, Chief Executive Officer;
  • Transportation Manager, Storage & Distribution Manager;
  • Construction Manager;
  • Social Science Research Assistant, Professor, University Administrator;
  • Directors of Religious Activities and Education, Clergy;
  • Interior Designer, Fashion Designer, Graphic Designer.


THE H-1B WORKER MUST BE ON THE EMPLOYER’S PAYROLL:

Once the H-1B Status is approved, the H-1B worker is only in valid status so long as s/he is receiving paychecks matching or exceeding the salary listed on the H-1B petition. The employer must withhold required payroll taxes and issue a form W-2 to the tax authorities at the end of each tax year. H-1B workers MAY NOT be paid a using the tax form 1099. H-1B workers must be on the employer’s payroll.

PERIOD OF APPROVAL:

The initial status is approved for three years and may be extended for three more years for a total of six years. After six years, the worker must spend one year outside the United States before he or she is entitled to re-enter in H-1B status. However, if the H-1B worker begins the Permanent Residence process prior to the fifth year anniversary in H-1B status, the H-1B status may be continuously extended in one year increments until the U.S. Permanent Residence application is decided.