H1B WORK VISAS FOR WORKERS FROM ALL COUNTRIES
Need an H1B visa application done? We help American employers in America hire professionals from foreign countries by handling the H1B visa paperwork necessary to authorize their work.
To start the H1B visa process, an application called an “H1B I-129 Petition” is filed by the employer (called the “Petitioner”) requesting permission for the foreign worker to work temporarily in the United States. If it is a private company they can only submit it the first week of April of each year due to the H1B Visa Cap.
The H1B Petition package must include documents such as a job description, proof from an expert that the job is a “specialty occupation,” an employment job offer letter, a Labor Condition Application (LCA) certified by the Dept. of Labor, as well as other documents proving the foreign national is eligible for the H1B visa.
This H1B Petition must be approved by the USCIS (United States Citizenship Immigration Services) before the H1B worker can start work.
The H1B visa is employer specific, meaning the H1B worker can only work for the employer that gets the H1B visa approved. Other important factors are:
- The H1B job position can be part time or full time.
- The H1B job position must require a 4 year college degree or equivalent.
- The foreign worker should have the same 4 year college degree that the job requires.
- Transfers of H1B status to a new employer are possible but the new employer would need to file a new H1B Petition.
- If an employee intends to work for more than one employer at the same time, each employer must still file separate H1B Petitions.
What is the Difference Between a “Cap Subject” and Cap Exempt” Employer?
Every year only 85,000 H1B visas are granted. There are two types of H1B employers: “cap subject” and “cap exempt.” It is important to identify which type of employer is submitting the H1B visa application because the rules are different for each type of employer.
“Cap subject” employers can only submit H1B petitions on April 1st each year and those petitions are subject to a numerical limitation of 85,000. Often more than 200,000 are submitted each year. Once an employee has been counted under the “cap” for their first 3 year H1B visa, they don’t have to worry about being counted under the “cap” again for their second 3 year H1B visa.
“Cap subject” employers are also required to pay between $750 and $1,500 of the government fees. If their H1B petitions are not chosen, the government fees are returned.
“Cap exempt” employers can submit H1B petitions at any time, are unlimited in number, and sometimes do not have to pay government fees.
There is no list on the internet of “cap subject” employers that we know of – basically employers that are “for-profit” (no matter what size) are normally “subject” to the H1B Visa cap.
Certain American universities and groups are called “cap exempt” and are not subject to the H1B visa cap. Sorry, but we do not have a list of “cap exempt” American universities or employers.
No professions (including veterinarians) are automatically exempt from the H1B numerical cap if it is the first request for an H1B visa.
What if the Employee Has an American Master’s Degree?
The first 20,000 H1B visas selected in the “cap subject” lottery are issued to foreign nationals who obtained their Masters Degree in America.
Therefore, advanced degree holders have a better chance of being selected in the H1B lottery because the government first holds the lottery for 20,000 advanced degree visas; applications that are not drawn as part of that selection process are then added to the pool of applications for the 65,000 remaining regular H1B visas, giving the first-time advanced degree losers a second shot at getting an H1B visa.
Additional challenges arise when the petitioning employee doubles as the startup founder or co-founder of an American company because the USCIS requires the employee to have a distinct employer/employee relationship with the company. But sometimes it is possible for an American company that is owned by an H1B visa holder to get an H1B visa approved if it can prove that there is a separate Board of Directors with the power to hire (or fire), supervise and pay the H1B visa holder.
Can the H1B Visa be Transferred to a New Employer?
After receiving an H1B visa approval, an employee may seek a second or third H1B visa, either to work concurrently for a second and third American employer at the same time as working for the first employer, or to work for a different American employer completely. If the first H1B was from a “cap subject” employer, they do not have to be counted again under the H1B cap.
“Thank you so much for all the care and caution you took for my H1b approval. It would definitely be an unimaginably tough job without your proper guidance. Your expertise and help have been invaluable during this process. I can’t thank you enough for all the hard work.”
Veterinary Doctor VKS and family, (India) 2015
“Working with Danielle on getting my H1B work visa and later my green card was a pleasure. From start to finish, Danielle always went out of her way to make sure that we never missed any deadlines and helped with each step in the complex process of being allowed to work and live in this great country. Danielle is personable, easy to work with and an expert at what she does, taking pride in her expertise and using it to help her clients receive the best possible legal services when it comes to American work visas and immigration.”
Burckhardt R. (Germany) 2009, residing legally in California, USA
How Long is an H1B Visa Usually Valid?
The H1B work visa petition is normally approved for 3 years for most foreign nationals. An extension of the H1B work visa for an addition 3 years is possible. The maximum number of years that an employee may have an H1B visa is 6 years unless steps have been taken to start the process of permanent residency (started when the American employer initiates green card sponsorship, which is a separate process). Some employees only get their first H1B for 1 year (if a license is required but they can’t get the license approved until they enter the USA using their H1B visa).
If I file under Premium Processing (expedite), am I subject to the H1B Visa Cap?
Yes. You are subject still subject to the H1B Visa Cap because premium processing is simply a quicker way of getting processed – not a request for special consideration. We find that persons who ask for premium processing do find out whether they were selected in the lottery or not more quickly than those who do not ask for premium processing. Sometimes premium processing is not available for certain H1B visas and sometimes it is available.
Why Do H1B Visas Run Out Every Year for “Cap Subject” Employers?
The H1B visas are highly sought after because a foreign national’s employer can simultaneously start green card processing for the employee while they are in H-1B visa status, which is not true for many other types of work visas. There is also an 85,000 limit to the number of new H-1B petitions that the USCIS (United States Citizenship & Immigration Services) will grant each year.
Only the U.S. Congress has the power to raise the number of H-1B visas that are issued.
The numerical limitation of H1B visas does not apply to H1B visa holders who were already chosen in the lottery and are transferring to a new employer or extending their H1B visas.
Obtaining an approved H1B Petition for a Veterinarian can be challenging, and requires special knowledge about DVM degrees, Specialist Veterinarians, and about obtaining state licenses to practice veterinary medicine in one of the 50 states.
“Just to let you know I picked up the H1B visa [at the U.S. Embassy in London] the other day; it’s all stamped in my passport at last! Thank you for all of your help – I could not have done this without you!”
Dr. M (United Kingdom) 2017, Veterinarian working legally in New York
When May I Apply for an H1B Visa?
If the H1B visa must be “counted” under the “H1B cap” because it is being submitted by a “Cap Subject” employer, the USCIS will accept H1B visa petitions only the first week of April each year for foreign workers to be considered to start work (approximately) the following October using an H1B visa. Even if the H1B is approved prior to October, the start date of the H1B visa cannot be earlier than October 1.
If the H1B visa does not have to be “counted” under the“H1B cap” because (a) the employee was chosen in the lottery previously; or (b) the employer is not a for profit company; then in those cases the USCIS will accept H1B visa petitions from cap subject employers at any time.
Attorney Nelisse prepares H1B visas for American employers throughout the USA. When you call the office, just ask to speak to Danielle Nelisse.
Email email@example.com or call (619) 235-8811 to ask about your case at no charge.
UPDATED: JANUARY 2019