H-1B for Professional Employees

The H-1B category applies to foreign nationals coming temporarily to perform services in a specialty occupation. The term “specialty occupation” encompasses the definition of a professional, in which the position requires at least a Bachelor’s degree in a specialized field.

The current annual cap on H-1B admissions, starting on October 1 of each calendar year, is 65,000 workers plus an additional 20,000 for holders of U.S. Master’s degrees or higher. Under a new electronic registration process starting in Fiscal Year 2021 (October 1, 2020), employers seeking H-1B workers subject to the cap submit an online application between March 1 and March 20 of that same calendar year. Assuming the cap is exhausted, the H-1B random selection process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions for an effective start date of October 1, 2020. F-1 students in Optional Practical Training (OPT) status who are sponsored for H-1B status by a petitioning employer and whose OPT status expires after April 1 are eligible to apply for a “cap gap fix” to extend their OPT status until September 30.

Employers that are cap-exempt, which enables the employer to file an H-B petition at any time of the year, include colleges and universities and related or affiliated non-profit entities, non-profit research organizations, and governmental research organizations.

Some terms and conditions of the H-1B classification include:

• Work authorization for H-1B foreign specialty workers is employer-specific, i.e. limited to employment with the approved employer/petitioner for the specific position described in the submitted H-1B petition.
• A change of employer or material change in the terms of the previously approved petition requires a new H-1B petition; new employment (any employment other than the originally approved employment) cannot begin until a petition for change of employment (Form I-129) is either filed with the USCIS, if the employee is already in valid H-1B nonimmigrant status, or approved if the employee is either not in the U.S. or in the U.S. in a different nonimmigrant status.
• Multiple employers require multiple H-1B petitions.
• The employer is responsible for return transportation costs for an H-1B employee terminated prior to the end of the approved period of employment.
• H-1B foreign specialty workers are not required to maintain a foreign residence and may seek permanent residence in the U.S.
• Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal.

H-4 EADs for Spouses of H-1B Professional Employees

A new  federal regulation implemented in  June 2015 permits certain H-4 visa status holders to apply for work authorization while their H-1B spouse is navigating the employment-based permanent residence process.

To apply for an EAD under this new program, an applicant must satisfy the following criteria:

• Be in H-4 status, or be eligible for a change to H-4 status;
• Be married to someone in H-1B status – H-4 children are not eligible; and
• The H-1B spouse must be the beneficiary of an approved I-140 OR have a “7th-year H-1B extension.”

If you or your spouse would like help determining eligibility for this program, or with preparing and submitting an application, please call us at (215)-925-0705, or click here to request a consultation.

*Aside from being the beneficiary of an approved I-140, an H-1B employee may otherwise extended their H-1B status past 6 years under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 if at least 365 days have elapsed since  the filing of either a PERM labor certification application or an I-140 immigrant visa petition.  This is commonly referred to as a “7th-year extension.”