However, persons present in the US may change their status to H1B and extend their current H-1B status.
To be eligible for an H1B visa, you must
1. Have a minimum of a 4-year university degree or equivalent;
2. Be paid at the “prevailing wage” or the “actual wage”, whichever is higher;
3. The job must require a minimum 4-year university degree or equivalent.
H1B visas are subject to a numerical cap of 65,000 per fiscal year. In addition, 20,000 persons who obtain advanced degrees from universities in the U.S. have their own H1B cap. Up to 6,800 H1B visas are reserved for persons who are citizens of Chile and Singapore.
The Department of Homeland Security (DHS) recently proposed a regulation which would abolish the H-1B lottery and replace it with a system which would select H-1B applicants based on salaries. Those with the highest salaries in a particular occupation would be granted H-1Bs.
The proposed regulation will be published on November 2, 2020. Comments must be received by December 2, 2020.
Certain H-1Bs petitions are exempt from the numerical caps including employment “at” universities, at “affiliated” or “related” non-profit organizations or at governmental and non-profit research institutions.
You can stay up-to-date with the latest news regarding H1B visas, the waiting times in the Visa Bulletin and other immigration news by subscribing to our Free E-Mail Newsletter.
“Cheryl is a genius! If not for her I sincerely don't believe I would have a green card right now. I had a challenging case (work visa based) that took years, but with her knowledge of the law and experience she used everything in her power to make it work. In addition to her expert knowledge of the law she is also an absolute pleasure to work with (if you've worked with other attorneys you know that is often not the case).”
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USCIS started a new online electronic registration process in 2020. Prospective petitioners (also known as registrants), and their authorized representatives, who are seeking authorization to employ H-1B workers subject to the cap, will complete a registration process that requires only basic information about the prospective petitioner and each requested worker.
The initial registration period for the FY 2021 cap started on March 1, 2020 and closed on March 20, 2020. The H-1B random selection process was run on properly submitted electronic registrations. Only those with selected registrations are eligible to file H1B cap-subject petitions.
Employers started submitting their H1B petitions at the beginning of April. Persons on whose behalf H-1B petitions are approved may start employment on October 1st. However, there are special rules (known as the “cap-gap”) for graduates of universities in the U.S. working on Optional Practical Training (OPT) which enable them to continue working for their employers during the spring and summer and automatically change their status to H-1B on October 1st.
H1B visas are typically valid for 3 years and can easily be extended for an additional 3 years. If a PERM application or an I-140 visa petition has been submitted in a timely fashion, post-6th year extensions of H-1B status are possible. We recommend that you extend your H-1B status until the day that you become a lawful permanent resident of the U.S.
Certain H-4 spouses of H-1B professionals are eligible to apply for work permits (EADs).
We hope that the information listed below will help you to obtain an H1B visa, or, if you are an employer, to understand how to sponsor foreign-born professionals for H-1B status.
The H1B Visa Guide is divided into the following subtopics:
- H-1B News
- Success Stories
- American Competitiveness in the 21st Century Act (AC-21)
- Adjustment of Status to Permanent Residence
- H-1B Employer Data Hub (USCIS)
- American Competitiveness Act (ACWIA) and Regulations
- AAO Non-Precedent Decision Repository
H1B Visa Success Stories
- Getting an H-1B Approved for a Remote Worker
- Avoiding the H-1B Cap with a Little Help from the USCIS
American Competitiveness in the 21st Century Act (AC-21)
- How USCIS Determines Same or Similar Occupational Classifications for Job Portability Under AC21
- Supplemental Guidance Relating to AC-21 (5-30-08)
- Interim Guidance for Processing Form I-140 EB Immigrant Petitions And Form I-485 and H-1B Petitions under AC-21 (5-12-05)
- INS Adopts “Alien-Based” Approach to Portability (4-24-02)
- Initial Guidance for Processing H-1B Petitions as Affected by AC-21 (INS) (6-19-01)
- Traveling During H-1B Portability Period (State Department) (2-14-01)
- AC-21: INS FAQ
- New H-1B Law FAQ (AILA)
- Section-by-Section Analysis of the H-1B Cap Bill As Passed By Congress (10-3-00)
- Summary of H-1B Cap Bill As Passed By Congress (10-3-00)
- Text of the Bill To Raise the H-1B Fee to $1,000 (10-12-00)
ADJUSTMENT OF STATUS For H & L Visaholders
- Understanding H-1B Requirements
- INS Field Memo on Adjustment of Status for H and L Visaholders (May 2000)
- H and L Regulations on Adjustment of Status (6-1-99)
H1B VISA EMPLOYER DATE HUB (USCIS)
AMERICAN COMPETITIVENESS ACT (ACWIA)
- ACWIA (1998) – Complete Text of Law
- ACWIA – Section-by-Section Summary of Law
- ACWIA – Highlights of the Law
- ITAA Calls on Congress to Raise Cap for Temporary Workers
- H-1B Regulations: AILA Summary of Provisions of General Applicability
- H-1B Regulations: AILA Summary Of Provisions Relating To “H-1B Dependent” Employees
- DOL Letter Re: “Single Employer” Rule (2-21-01)
- Letter From Senators Abraham and Graham In Response To DOL’s Interim H-1B Regulations (1-1-01)
AAO Non-Precedent Decision Repository
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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