H-1B Professional or Specialty Occupation

If the position you wish to fill is either a professional position or a position in a specialty occupation, normally (with certain exceptions) defined as requiring the type of specialized knowledge associated with the attainment of the minimum of the equivalent of a U.S. Bachelor’s degree or higher, then the H-1B visa might be the right choice for you whether you are immigrating to San Francisco, California or somewhere else in the United Stated.

Duration of Stay

The H-1B visa status can be initially granted for up to three years, with the possibility of an extension for up to an additional three years. If your employer is in the middle of applying for permanent residence on your behalf, in a process that will extend beyond the allowable six years, you may be able to obtain additional H-1B time in certain circumstances. Currently 65,000 new employment H-1B visas are available in any one fiscal year that extends from October 1 to September 30 of the subsequent year. To avoid delays, it is always advisable to apply as early as possible in the fiscal year.

Obtaining H-1B status

The H-1B application process is comprised of three sequential applications to separate government agencies:

  1. Department of Labor To qualify for H-1B eligibility, you must be offered a salary that is 100% of the prevailing wage for the particular occupation in your metropolitan area. In this regard the Department of Labor requires that your employer obtain its certification of a Labor Condition Application attesting to the prevailing wage and salary offered and other important conditions prior to filing the H-1B visa petition.
  2. Department of Homeland Security – United States Citizenship & Immigration Services (USCIS) Once your employer has obtained certification of the Labor Condition Application, the H-1B petition is filed with USCIS. It must be supported by sufficient evidence to show that the employer is a viable enterprise; that the position you will be taking realistically requires an individual with at least the equivalent of a U.S. Bachelor’s level of achievement; and that you as the foreign national have indeed achieved the equivalent of a Bachelor’s level of achievement. Equivalency can be established with either a foreign degree or by a combination of education and training that can be evaluated as the equivalent of a U.S. Bachelor’s degree according to complex formulae and criteria. Normal processing times can now take months, while premium processing guarantees an answer within 15 business days for a $1,000 additional filing fee.If you are already in valid non-immigrant status, your employer might request USCIS to change your status to H-1B visa status thereby allowing you to work right away without first having to obtain the H-1B visa stamp overseas. Even more fortuitously, if you have been in H status previously, then under a provision known as portability, you will be allowed to go on payroll on the date your H-1B employer transfer petition is received by USCIS without having to first wait for the petition to be approved.
  3. Department of Homeland Security – Department of State – Consular Post overseas If you are overseas you must first obtain your H-1Bvisa stamp from a U.S. Embassy or Consulate overseas prior to entry into the U.S. The non-immigrant visa application is comprised of several forms and documentary evidence, based upon showing the original Notice of Approval from USCIS, Form I-797, of the H-1B petition. Because of new security checks at the overseas posts since September 11, every visa applicant is now required to be personally interviewed, resulting in delays. It is important for planning purposes to bear in mind that applications that once could be accomplished in days, are now taking several weeks in some cases. If you have changed status without first going overseas, you will need to apply for a visa at the U.S. Embassy or Consular office on you next trip overseas in order to re-enter the U.S. Spouses and children of an H-1B employee qualify for H-4 status, which permits school attendance but not employment.