U.S. employers may require the services of a foreign national to work for their company or business. These employers, however, are required to hire only individuals who may legally work in the United States. If the individual is already a U.S. Permanent Resident (green card holder) or a U.S. Citizen, the U.S. employer may hire that individual, but must comply with the I-9 employment eligibility verification requirements. If, on the other hand, the foreign national is not a U.S. Permanent Resident or a U.S. citizen, or does not yet have employment authorization (i.e. temporary employment authorization under the Optical Practical Training (OPT) for international students), then the U.S. employer may want to consider filing an H-1B petition on behalf of the potential employee so that the foreign national can legally work for the U.S. employer.
The H-1B visa category is one of the most common non-immigrant visa classifications available to foreign professionals. It enables U.S. companies to hire foreign skilled professionals to perform services in a specialty occupation. The law defines "profession" as including, but not limited to, architects, engineers, lawyers, physicians, surgeons, and teachers. The specialty occupation requires the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent through a combination of education, training, and work experience) as a minimum for entry into the occupation in the United States.
H-1B visa applications may be filed beginning April 1, 2014, and if approved, the prospective employee may begin work on or after October 1, 2014. There is a quota on the number of available H-1B visas of 65,000 in each fiscal year, and there is a separate annual quota of 20,000 for individuals who have earned a master's or higher degree from a U.S. institution of higher education. It is important to note that if the foreign national will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations, such petitions for new H-1B employment are exempt from the annual cap and the petitioning employer may file a petition for these cap-exempt H-1B categories seeking work dates starting in fiscal year 2014 and fiscal year 2015.
In previous years, the quota has been met as quickly as the first day (April 1st). Therefore, U.S. companies seeking to bring in foreign specialty occupation H1-B workers usually begin the paperwork process at least a few weeks in advance of April 1st, as a Labor Condition Application (LCA) with the Department of Labor must be approved before the filing of the H-1B application.
H-1B visas are generally approved for a period of three (3) years, and can be renewed for three (3) additional years, for a maximum period of six (6) years. The spouse of the H-1B holder and/or unmarried children under age 21 are entitled to H-4 nonimmigrant classification, subject to the same period of admission and limitations as the beneficiary if they are accompanying or joining the beneficiary in the United States. H-4 dependents may attend school and may be eligible for student status. H-4 dependents, however, may not accept employment unless they qualify independently for a classification in which employment can be authorized.
If the foreign national’s OPT authorization is still valid when the U.S employer submits the H-1B petition to U.S. Citizenship and Immigration Services (USCIS), the foreign national’s OPT authorization is extended, and he or she can continue working in F-1 status for the U.S. employer through the extension date, without the need of waiting until October 1st, 2014 to begin working for the U.S. employer.
Further, H-1B petitions that are timely filed, on behalf of an eligible international student under F-1 visa, that request a change of status to H-1B on October 1 qualify for a cap-gap extension. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, 2014 while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the "grace period").
The H-1B Cap Gap Extension allows certain students with pending or approved H-1B petitions to remain in the U.S. in F-1 status until the start date of their approved H-1B employment period, even if the OPT authorization and/or F-1 grace period would have otherwise expired before October 1.
E. Adriana Kostencki, Esq.
Attorney at Law Licensed in Florida, U.S.A. and Venezuela