H-1B Visa

H1-B Visa Lawyer – H1-B Visa Attorney – ScagliariniLaw

H1-B visas have become one of the hottest visa categories and one of the most maddening visa to apply for given the recent setbacks in terms of number of petitions received, number of visas available and cut-off dates. 

If you need the assistance of an experienced H1-B visa lawyer, the Law Offices of Giuseppe Scagliarini offer proven, reliable expertise in representing specialized knowledge workers and other professionals seeking H1-B status.

H1-B visas are one of the main avenues available to foreign workers to gain lawful entry to the U.S. and obtain employment authorization. They are available in increments of up to 3 years, up to a total of 6 years and can under certain conditions be extended beyond the sixth year and “ported” from one employer to another. Additionally, H-1B visas allow “dual intent” i.e. the ability  to pursue permanent residence (a “green card”) while physically present in the United States in H-1B status.

This is in marked contrast with other nonimmigrant visa categories that do not allow the alien to harbor so-called “dual-intent” and that therefore may not be as desirable to potential immigrants.. In recent years, the numerical limits on H1-B visas have been repeatedly hit and applicants who did not know the intricate H1-B regulations were cut off, sometimes with no other recourse than going back to their home countries. This is especially true for students seeking a change of status from F-1 to H1-B during their period of Optional Practical training (“OPT”) who may not aware of “Cap-Gap” regulations that may or amy not apply to them.

While H1-B relief legislation is certainly auspicable and is being lobbied for,   the fact remains that securing an H1-B visa is becoming increasingly difficult and requires the skills, training, and a thorough knowledge of the H1-B rules ad regulations that an experienced H1-B visa attorney can offer. Please note that there are 20,000 extra H1-B visas allotted for holders of Master’s degrees issued by U.S. Universities. If you are a holder of a U.S- issued Master’s Degree, contact our offices as there may be a visa available for you even after the formal announcement that the H1-B cap has been hit.

The best time to file an H1-B petition subject to the H1-B cap is usually in the Spring (as close as possible to April 1st) for employment dates beginning the following October 1st or later. This is due to the vagaries of the regulations, that do not permit to apply more than six months before the date of intended employment, and to the Government Fiscal Year, when new H1-B visas become available, beginning October 1st of each year. Please note that in recent years H-1B visas have been exhausted in a matter of days. See e.g.: USCIS Reaches 2016 H-1B CAP

Attorney Giuseppe Scagliarini has decades of experiences in preparing and filing H-1B visa petitions minimizing the inconvenience to employers and employees and can ensure compliance with all U.S. immigration laws and regulations. Please note that our office does not offer any matching services between H-1B visa sponsors and employees, nor we provide lists of employers who accept applications from H-1B visa candidates. If you are interested in finding out if you are qualified for an H1-B visa or if a position offered to you qualifies for an H1-B visa please contact our office to schedule a consultation.

STRATEGIES TO AVOID THE H1-B CAP

As many are painfully aware by now, there is a numerical limit or “cap” on the number of h1b visas that can be issued every fiscal year by USCIS. In recent years, this has caused many applications to be rejected even if the h1b beneficiary was otherwise qualified, and generally caused uncertainty and timing issues in securing h1b visas. 

HOWEVER, not all h1b visa applications are subject to the cap. Candidates who will be working for an Institution of Higher Education (for example a U.S. College or University) or a “related or affiliated entity” or for nonprofit research organizations or governmental research organizations are not subject to the h1b visa cap.

It is important to note that USCIS has so far taken a fairly liberal view of what constitutes an “affiliated entity” for h1b visa purposes. This opens the possibiltiy for the right candidate to apply for a cap-exempt H1B visa, simplifying the process and avoiding the h1b rush at the beginning of the filing period. It also substantially enhances the chances of approval and makes it possibly to strategically plan forh1bB filing irrespective of the much dreaded October/April time frame (see our article on h1b visas in general).

For example, many medical doctors who come to the U.S. to perform Graduate Medical Studies (fellowship and residecy) could arguably qualify for cap-exempt h1b visas if they were to be employed by a Hospital or other medical institution affiliated with a U.S. University, as it is often the case. Another example would be an associate professor coming to the United States to teach or perform research for an nonprofit academic institution (again a U.S. College or University, or an affiliated nonprofit academic institution).

Yet another category of petitions exempt from the h1b cap are those where the beneficiary has been previously counted towards a non-cap exempt h1b position in the six years prior to the filing. While this scenario typically occurs upon request for a three-year extension, the law has been interpreted to allow new employment and a change in employment petiiton to be classified as cap-exempt when these conditions are present.

If you think you are qualified to apply for a h1b visa not subject to the h1b cap, or if you need help in determining whether the h1b cap applies to you, please contact our office to request a telephone or personal consultation.