H-1B Visa
The H-1B is one of the most common visas used by companies employing foreign high-skilled workers in the U.S. Unfortunately, there are several limitations and restrictions when it comes to actually obtaining one, including the annual lottery; the limited number of visas available; and the strict criteria for qualifying.
H-1B Lottery
Congress has allotted a maximum of 65,000 H-1B visas to be made available every fiscal year. An additional 10,000 visas are allotted for employees who possess a U.S. Master's degree from either a public or non-private educational institution. Every fiscal year, USCIS runs an H-1B lottery whereby U.S. employers can register the employees that it wants to petition for H-1B status that year.
The lottery typically begins at the beginning of March and remains open for 2-3 weeks. Once the window closes, USCIS runs a lottery and notifies all employers which applications were selected. The employer than has about 90 days to submit the H-1B petition to USCIS.
For various reasons, not all employers who submitted registrations will actually proceed to submit H-1B petitions if selected. If there are any unused H-1B visas left after the first draw, USCIS may run a second lottery later in the fiscal year.
H-1B Transfer
Employers that want to hire a new employee who are currently in H-1B status with another employer may 'transfer' that H-1B over. To be able to transfer an H-1B over, the candidate must have already been selected in an H-1B lottery. They do not necessarily have to be working for that, or any employer.
If the candidate is currently in the U.S., the new employer will have to demonstrate to USCIS that they are maintaining lawful status. Typically, the candidate is currently working for another company on an H-1B. However, they could be in another status, such as an H-4 spouse, but they previously had an H-1B that they can still use.
If the candidate was recently laid off from their H-1B employer, a new employer can transfer their H-1B over so long as the petition is submitted within 60 days of the last day of their employment. If it has been more than 60 days since the candidate was terminated, the new employer can still transfer the H-1B over but should do so via Consular Processing.
H-1B Recapture
Foreign workers who have an H-1B visa are allowed a maximum of six years before they have to leave the U.S. for at least one year and have a company enter them in a new lottery. When renewing an H-1B, employers can recapture any time the employee has spent outside of the U.S. while they were in H-1B status and add those days back to an extension.
This is most beneficial when the H-1B employee is either on their first extension, or if they have already done an extension and is looking to recapture any unused days over the course of the previous six years.
H-1B Amendment
Employers must submit an amendment to an approved H-1B when there is a material change in the terms of one's H-1B employment. These include: 1) a material change in the city or county where the employee will work; or 2) a material change in the terms and conditions of employment.
An amendment is not typically required when: 1) the employee is moving to a new job location within the same area of intended employment; 2) there is a short-term placement for fewer than 30 days at a new, temporary job location; and 3) the employee is going to a non-worksite location.
AC21
The American Competitiveness in the Twenty-First Century Act of 2000 covered several topics. For H-1B purposes, AC21 allows H-1B holders who have an approved I-140 petition from their, or a previous employer, to have their H-1B status extended beyond the maximum six years until their Priority Date becomes current.
This is crucial for foreign nationals in H-1B status who are from countries where Priority Dates are backlogged, including India, China, Mexico and the Philippines. For these employees, Priority Dates may not become current until well after their six-year H-1B maximum expires. Under AC21, they can continue working for their employers so long as an I-140 was approved by a certain time.
Public Access File
Employers that have employees in H-1B status are required to maintain a Public Access File. This is a file that must be made available to the public upon request, and may be requested or audited by USCIS without notice. There are specific documents and contents that must be included in a Public Access File for each H-1B employee, and there are also requirements for how long the file must be maintained - even after the employee has been terminated or resigned.