Read part two here
Employer’s Eligibility Requirements
An H-1B employer is a US employer who has petitioned for an H-1B classification for a foreign worker. The employer will have to prove, apart from the abovementioned requirements as to the job and position (requiring a US bachelor’s degree or its equivalent as the minimum requirement for the specialty education), that there is a true business need for the worker and he can pay the prevailing wage for the position.
There is another sub-category of H-1B employers who are H-1B dependent employers. When a US employer meets one of the following conditions, then he is an H-1B dependent employer:
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- 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
- 26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers;
- 51 or more full-time equivalent employees, of whom15 percent or more are H-1B non-immigrant workers.
How long a worker may stay in the USA under H-1B Status?
H-1B is not an immigrant visa, and it does not allow one to work for an employer as long as he wishes. It is a temporary work status. The worker is allowed to work for 3 years starting from the date he commences his employment, which may be extended for another 3 years, totaling 6 years of the valid period of stay. However, the employer may be allowed to employ them for up to another 45 days using recapturing of H-1B time in case the worker spent those days outside the USA.
If the worker is out of status due to the expiry of a valid period of stay, he will have to leave USA. Afterwards, he may again find an employer who will sponsor him for H-1B visa and file a petition for H-1B classification. However, to do this process, the worker must spend 1 year outside the USA after he is out of status. Another disadvantage is that, the worker will have to go through the lottery process for H-1B cap again, and if the employer does not win a number in the H-1B lottery the employer cannot employ that worker again.
American Competitiveness in the 21st Century (AC) 21 Act
This legislation has changed the game for people waiting for the decision on Employment-based green card applications while being under the H-1B status. Accordingly, an H-1B status holder who is waiting for a decision on his employment-based green card application may extend his status for unlimited times till the decision on his application for an employment-based green card comes. To sum up, this Act requires two conditions:
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- The worker is under a valid H-1B visa/status.
- The worker’s employer has filed an employment-based green card petition (form: I-140) for him.
H-1B Cap
The number of the petition that can get H-1B classification is limited. There are only 850000 visas allotted under the H-1B cap each year. However, only 65000 visas (6800 reserved for H1B1 visa category) are allotted as the regular cap. The rest 20000 are only available for the worker who completed their advanced degree (Minimum Master’s or its equivalent) from the USA. As US employers file more H-1B petitions than H-1B capped numbers, a lottery determines if the employer’s H-1B petition can proceed to the next stage, adjudication. Under the process, if the employer will have to file an H-1B petition on or after the first of April, and if the employer wins the H-1B number through the lottery and his petition is approved, the worker is eligible to commence his work from October 1 of that year.
H-1B Cap Exempt
On the other hand, cap exemption allows the employer to file a petition any time of the year, and there is no lottery as well. Cap Exempt employers can be generally divided into two types:
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- Not-for-profit institutions of higher education, which are usually universities or colleges
- Not-for-profit research organizations or governmental research organizations including hospitals or other research centers.
However, a non-exempt employer may qualify as cap-exempt by having their workers perform all or part of their job duties at a cap-exempt employer’s place of business. But these two conditions must be fulfilled:
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- H-1B worker directly and predominantly furthers the essential purposes of the H-1B qualifying institution
- The place of performance of the worker’s job duties is actually the qualifying institution
Apart from the H-1B cap exempt employers, there exist, exempt employee. These are the workers who have been counted against cap and was previously employed by different employer. In that case, an employer may hire that person without going through the lottery process.
