1. The
Annual H-1B Visa Cap
There
is an annual numerical limit or cap on the number of H-1B visas issued.
Currently, only 65,000 foreign nationals per year can be issued visas or given status in H-1B
classification, with additional 20,000 H-1B's set aside each year for holders of U.S. Masters Degrees or higher.
These H-1B caps can be reached quickly each year, and this can result in a great deal of hardship to both employers and H-1B candidates.
The
following H-1B applications are not subject to the cap:
- Applications
for extensions of H-1B status;
- H-1B
petitions for concurrent employment where the alien worker is presently in
H-1B status;
- H-1B
petitions to change employers;
- H-1B
applications sponsored by institutes of higher education or a related or
affiliated nonprofit entity, government or nonprofit research
organizations;
- H-1B
applications for physicians who received J-1 waivers under a Conrad State 30
Program.
The H-1B cap does not apply to H-1B extensions of status with the same company, a petition for a second H-1B,
and transfers from one H-1B employer to another H-1B employer. However, the cap does
apply to an H-1B transfer applicant who was previously working in a cap exempt H-1B position,
such for a government research organization, and now wishes to transfer to a for-profit cap-subject organization.
Also,
the
Bureau of Citizenship and Immigration Services (USCIS) will not count someone towards the H-1B cap, if they have been in H-1B
status within the previous six-year time period, unless the individual is
applying for a new six-year period of stay at the time the petition is filed. Also,
any H-1B petition revoked for fraud or willful misrepresentation shall be added
back to the cap in the year the petition was revoked, regardless of when the
visa was actually issued.
2.
The Fees
for H-1B Application
Before October 1, 2003,
employers who used the H-1B program were required to pay an additional $1,000
fee imposed by the American Competitiveness and Workforce Improvement Act of
1998. The fee is used for U.S. citizens, lawful permanent
residents, and other U.S. workers to attend job training and receive low-income
scholarships or grants for mathematics, engineering or science enrichment
courses administered by the National Science Foundation and the Department of
Labor.
The H-1B provisions of the
Omnibus Appropriations Act raises the fee to $1,500.
Petitioners who employ no more than 25 full-time equivalent employees, including
any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of
petitions are exempt
from the $1,500 or $750 fee.
In addition, the Act creates a Fraud Prevention and Detection Fee of $500, which must be paid by petitioners
seeking a beneficiary’s initial grant of H-1B nonimmigrant classification. Other than petitions to amend or extend stay filed by an
existing H-1B employer, there are no exemptions from the $500 fee.
Each of these fees is in
addition to the base processing fee to file a Petition for a
Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.
3.
About the H-4 Visa
H-4 visas are issued to the H-1 holder's spouse and
children under twenty-one years of age. Holders of H-4 visas are considered to
be dependents of H-1B visa holders. As H-4 status holders, spouses and children
under twenty-one years of age may be entitled to enter and remain in the United
States for the duration of the H-1 holder's authorized stay.
The spouse or dependent child of an H-1B worker may accompany or follow to join the principle
H-1B visa holder. These H-4 visa holders may attend school, but cannot work. The H-4 visa holder may remain for as long as his or her spouse is on H-1B.
The duration of their stay is limited to and equal
to that of the H-1B visa holder.
To
obtain an H-4 visa to enter the U.S. with their H-1B beneficiary spouse, both
husband and wife should visit the U.S. Consulate located in their home country,
and apply for both the H-1B visa and the H-4 visa simultaneously. All required
documentation should be brought to the U.S. Consulate at that time.
4.
H-1B Recapture of Overseas Trip Time and 7th Year H-1B Extension
USCIS has issued a memorandum setting forth the procedures for
calculating the maximum period of stay allowed for H-1B nonimmigrants. It addressed issues pertaining to the recapture
of time spent abroad, and it does not alter the H-1B extensions beyond the six-year limitation that are commonly
referred to as seventh-year extensions. USCIS now allows for persons in H-1B to recapture each day that they spend
abroad during the standard H-1B duration.
Under the change in USCIS policy allowing for recapture of any time spent abroad, if a person on H-1B spends two weeks
outside of the U.S. on vacation each year during the six-year H-1B period, that person can request, and should
receive, twelve additional weeks of H-1B time. The earlier policy of only allowing recapture for meaningful
interruptions is no longer applicable. This is a significant change and will be beneficial to many people.
The reason for this is that the same terminology interpreted by the USCIS for H-1Bs also appears in the L-1
regulations. Thus, the logic is the same for both categories. Also, dependent family members, who would hold H-4
status, will be able to extend their statuses for the additional time granted to the primary applicant. There was no
mention of the need for the H-4 to also travel abroad. Thus, the H-4 could remain in the U.S. while the primary is
abroad on a business trip, yet be able to extend his or her status with the H-1B primary spouse.
A person claiming recapture needs to be prepared to document the time spent abroad. The appropriate evidence includes
passport stamps, I-94s, and/or plane tickets. Consequently, one should keep such evidence in a safe place, as it may
be needed many years hence.
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