The H1b visa is a nonimmigrant visa for specialty occupations & professionals. It is typically granted in three year increments for a total time of six years. Note, exceptions to the six year maximum are only available in limited situations where applications for permanent residency are in process. This visa requires (1) that the employee have at least a bachelor’s degree in a specialty occupation (it is possible to combine education and experience to reach bachelor’s level equivalency); (2) the position for which the employee is being hired must normally require a bachelor’s degree in that specialty; and (3) the employer must pay the higher of the actual wage paid to US employees by the employer for that position or the prevailing wage in the industry for that position in the metropolitan area of employment. For founders, this visa is typically only an option if the founder can show that they report to an independent board (i.e. the founder cannot have complete control of the company and decisions on his/her own). The biggest issue with the H1b visa is that there is an annual quota of 65,000 visas that can be issued per year (an additional 20,000 visas are available to graduates of US universities with Masters degrees or higher). The annual quota is typically reached within the first week of the filing period every year and the applications received are subjected to a lottery process to see which cases will be processed. In 2017: 236,000 petitions were received for the 85,000 spaces. Thus, these filings are not possible except during one week during the year and even then you have to be lucky enough to be chosen in a lottery for processing. Note, H1b transfers, amendments and extensions are not subject to the quota so hiring someone already in the US on an H1b visa is an option year round. The H1b visa is one that has been under heavy attack recently and we anticipate that this visa will be restricted even further in the coming year so any news regarding this visa is something you should definitely keep an eye on.
Who is Exempt from the H1b Quota?
The H1b quota is only applicable to foreign nationals who are classified as ‘new’ H1b applicants. If a potential employee is not subject to the H1b quota, you may file an H1b petition for them at any time for immediate employment. Foreign nationals are not considered ‘new’ h1b applicants, and thus are exempt from the quota, if:
1) They are currently in H1b status with another employer (except for exempt H1b employers) and are seeking to either transfer their H1b to your company or to file an H1b application for concurrent employment with your company
2) They are currently outside the US or are in the US in another status but they were previously granted H1b status (other than for an exempt H1b employer) and have not left the US for more than one year since obtaining H1b status
3) They were granted H1b status (other than for an exempt H1b employer), have been outside the US for more than one year, but did not previously use up their H1b period of stay.
4) They are currently in H1b status with your company and you are seeking to extend or amend their current H1b.
H1b exempt employers:
· Certain institutions of higher education
· Certain nonprofit organizations or entities related to or affiliated with an institution of higher education
· Certain nonprofit or governmental research organizations
Extensions beyond the Six Year H1b Maximum
· Beneficiary of a labor certification or I140 which has been pending for at least 365 days can get extensions in 1 year increments until a decision is made on his/her permanent residency;
· Beneficiary of an approved I140 who cannot adjust status due to per country quota limitations can obtain 3 year extension