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H-1B Visa - Professional Workers

H-1B Visa - Professional Workers


H-1B Visa

What is an H-1B?

An H-1B Visa (Specialty Occupation) is a non-immigrant visa that is available to a foreign national who has been offered a job by a United States company for services to be performed in the United States. H-1B Visas are available to workers in specialty or professional occupations. It allows you to stay and work in the U.S. for an initial period of three years, but not to exceed six years. H-1B Visa holders can travel in and out of the United States, when it has been granted by a United States Consulate. Spouses and unmarried children under the age of 21 may receive visas as well.

What is a specialty occupation?

A specialty occupation is one that requires theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree (or its equivalent) in the specific specialty. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Is there a limit on the number of H-1B visas issued?

Yes. Under current law, there is an annual limit of 65,000 H-1B visas (less 6,800 which are set aside for Singapore and Chile, so the total number of visas for all other countries is actually 58,200). There are an additional 20,000 H-1B visas for graduates of U.S. masters degree (or higher) programs. There are some types of jobs that are exempt from the H-1B cap and these are discussed below.

Are there any cap exemptions?

Not every H-1B applicant is subject to the cap. The following scenarios are not subject to the cap:

  1. Extensions
  2. Amendments: change in work location, job promotion, company mergers/acquisitions, change in number of hours, and change in job duties
  3. Change of Employers
  4. Concurrent Employment: current H-1B worker working concurrently for a new employer
  5. Non-Profit: workers of institutions of higher education, nonprofit research organizations, and government research organizations
  6. Physicians taking jobs under State 30 or federal government agency waivers based on serving underserved communities are exempt from the H-1B cap.

When is the best time to apply for an H-1B?

Over the past few years, the H-1B cap has been reached sooner and sooner:

  1. 2004 cap reached on October 1, 2004
  2. 2005 cap reached on August 10, 2005
  3. 2006 cap reached on May 26, 2006
  4. 2007 cap reached on April 1, 2007

Therefore, the earlier the case is submitted, the better its chances are of being accepted. However, H-1B Petitions may only be submitted 6 months ahead of the employment start date (meaning, applications with a start date of October 1st may be filed on April 1st).

How long can an individual be in H-1B status?

Under current law, an individual can be in H-1B status for a maximum period of six years at a time. After that time an individual must remain outside the United States for one year before another H-1B petition can be approved. Certain individuals working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain individuals may obtain an extension of H-1B status beyond the 6-year maximum period of stay (discussed below).

Extension of H-1B status beyond 6-year of maximum period of stay

Section 106 (a) of the American Competitiveness in the 21st Century Act of 2000 (AC21) (Pub. L. No. 106-313, 114 Stat. 1251 (Oct. 17, 2000) allows an H-1B worker to seek extensions in one-year increments beyond the six-year period when a labor certification application of an EB immigrant petition (I-140 immigrant petition for and extraordinary ability, multinational manager, outstanding researcher, or national interest case) has been filed at least 365 days before the expiration of six years in H-1B status. This benefit also is available if the worker ported to a new employer. Another Aytes memo states that USCIS does not require the labor certification or petition to be from the same employer requesting the extension.

If the labor certification or petition was filed less than 365 days at the time of filing for the extension, consider filing an extension to recapture time abroad and/or have the worker leave the United states for the required time, if possible, since the six-year period only includes the time the foreign national is physically present in the United States in H-1B status. The Aytes memo set the procedures for calculating the maximum period of stay for H-1B and L-1 non immigrants. The time limit is to be computed from the entry date (as noted on the foreign national’s passport and I-94), not the date of the petition approval.

The foreign national is not required to be in H-1B status or physically present in the United States to be granted the one-year extension under AC21 §106 or the three-year extension under AC21 §104(c). However, the H-1B extension application must be filed while the person is physically present in the United States, since USCIS will otherwise likely deny the extension.

Can an H-1B worker obtain an extension of stay in three years increments beyond the initial six years?

Yes, in some circumstances. AC21 §104(c) provides that an H-1B worker who has used up the initial six years of stay may be eligible for a three-year extension if the person would be eligible to file for adjustment of status but for the visa quota backlogs. USCIS Associate Director for Operations William Yates clarified in a memo that USCIS has taken the position that the I-140 must be approved for §104(c) to apply. These extensions can be obtained until the alien’s application for adjustment of status has been processed and a decision is made thereon. The petition for extension must request three years and include a labor condition application covering this period.

How does one apply for an H-1B?

In an H-1B visa application, the U.S. employer is called the “petitioner” and the foreign worker is called the “beneficiary”. After an offer of employment has been made, the petition process begins. The first step is for the petitioner to ensure that the worker will be paid the prevailing wage for the occupation in the geographic area where the beneficiary will be employed. The employer must also be sure that it is not paying less than the actual wage paid to its other employees with similar qualifications. The prevailing wage can be obtained from the Foreign Labor Determination Center (FLDC) or by filing a request for a prevailing wage determination with the state workforce agency. It can also be determined through a private wage survey. The benefit of relying on the FLDC or a prevailing wage determination is that it cannot be challenged later by the U.S. Department of Labor.

Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the U.S. Department of Labor. On this form, the employer must submit the wage to be paid, the prevailing wage, and must make certain attestations. Form ETA 9035 can be filed electronically or by mail (please see Important Foreign Labor Certification H-1B Information at the U.S. Department of Labor’s website for filing instructions).

The certified LCA is submitted to USCIS as part of the H-1B petition package along with documentation of the beneficiary’s qualifications, the petitioner’s type of business, and the type of work the beneficiary will be performing. Each of these will be discussed further below.

What type of evidence must be submitted?

The H-1B Petition must include evidence that will convince USCIS that:

  1. The employer has a legitimate need for a “specialty occupation worker”
  2. The position offered is in a “specialty occupation”
  3. The prospective employee is qualified for the position

1. The employer’s need

This is often the easiest aspect of an H-1B petition to demonstrate. As a general rule, large and well-known businesses do not have much difficulty in showing they have a need for an H-1B worker. Problems can be encountered if the employer is small, or if the business was recently started. In such cases USCIS has requested evidence relating to the stability of the business, such as tax returns and payroll records. Court decisions have, in the past, said that USCIS is not supposed to examine the financial background of a company. However, USCIS routinely asks for such documentation even for many large employers.

2. The nature of the position

Demonstrating that a position is a specialty occupation is quite easy with some jobs, such as lawyers, accountants, engineers and professors. With many positions it is not so simple. In these situations, the application must carefully define and describe the job. The U.S. Department of Labor has the following sources which are helpful in this area:

  1. The O*Net database which provides comprehensive information on key attributes and characteristics of workers and occupations. The O*NET database houses this data and O*NET Online provides easy access to that information.
  2. The Dictionary of Occupational Titles contains a list of job titles and lists job duties that are associated with each.
  3. The Occupational Outlook Handbook lists general educational requirements for entry into certain areas of employment, but often it deals with such broad fields that it is of limited usefulness.

While the website and the books are helpful in documenting a case, neither is binding on USCIS.

In cases where the specialty nature of the position is not evident, the burden of proof is on the Petitioner to demonstrate that it is a specialty occupation. There are many types of evidence which may used to do so. Such evidence includes, but is not limited to, trade and association publications, affidavits from authorities in the field and evidence of the Petitioner’s own hiring practice in hiring for the position.

If the occupation is little known or is relatively new, extensive documentation will be required to convince USCIS of the need for an H-1B worker. In these cases appropriate evidence would include, but is not limited to, affidavits from other employers in the field and professional organizations in the field.

3. The beneficiary’s qualifications

To qualify as a specialty occupation, the position must require at least a bachelor’s degree or its equivalent. Therefore, one of the most important parts of an H-1B case is documenting the beneficiary’s education and/or experience. A diploma may be submitted if it indicates the beneficiary’s field of study and that field is relevant to the position sought. If this is not the case, transcripts should also be submitted. If the relevance of the subjects studied is not apparent, course descriptions from the school catalog may be included. If the beneficiary did not attend school in the U.S., the degree must be evaluated by a credentials evaluation service to ensure it is at least the equivalent of a U.S. bachelor’s degree. Note that if the beneficiary attended college abroad, and then obtained an advanced degree in the U.S., no evaluation of the undergraduate degree is required because it is presumed that the U.S. graduate institution would not have admitted the student without at least possessing the equivalent of a bachelor’s degree.

While possession of a degree is the most common way of establishing a person’s ability to work in a specialty occupation, a degree is not required to obtain an H-1B visa. The applicant can demonstrate through work experience or a combination of education and experience that he or she has the equivalent of a bachelor’s degree. If work experience will be used, USCIS requires affidavits from former employers outlining the beneficiary’s responsibilities and skills learned while there. Under USCIS rules, three years of work experience is equal to one year of college.

If there are any additional requirements that the beneficiary must meet to take the position offered, documentation that these requirements are met must be submitted. An example would be evidence of licensure when a license is required by the state in which the beneficiary will be working.

Filing Procedures

The H-1B Petition is filed with the USCIS by submitting Form I-129 with H Supplement and I-129 Data Collection and Filing Fee Exemption forms along with supporting documents and evidence and appropriate filing fees (see below).

What are the filing fees associated with an H-1B visa?

There are four government filing fees that come up in H-1B cases. First, the base filing fee for an H-1B case is applicable in every case. As of publication of this article, that fee is $325.

Second, is the worker retraining fee of $1500. Employers with less than 25 full-time equivalent employees in the U.S. (including employees of affiliates and subsidiaries) are only required to pay $750. Previously exempt employers will continue to be exempt from the fee.

The following categories of employers and employees are exempt from the H-1B retraining fee:

  1. The employer is an institution of higher education as defined in the Higher Education Act of 1965; or
  2. The employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education.; or
  3. The employer is a nonprofit research organization or governmental research organization, that is primarily engaged in basic research and/or applied research; or
  4. This petition is the second or subsequent request for an extension of stay filed by the employer regardless of when the first extension of stay was filed or whether the $1,500 (or $750) filing fee was paid on the initial petition or the first extension of stay; This petition is an amended petition that does not contain any requests for extension of stay filed by the employer; or
  5. This petition is to correct a USCIS error; or
  6. The employer is a primary or secondary education institute; or
  7. The employer is a nonprofit entity which engages in an established curriculum-related clinical training or students register at the institution.

Third, there is a required $500 fraud prevention and detection fee. This fee is not required for an extension of H-1B status with the same employer.

Finally, applicants seeking faster processing can pay a $1000 premium processing fee to be guaranteed an answer within 15 days. This also requires the filing of Form I-907.

FREQUENTLY ASKED QUESTIONS

Who can an H-1B visa holder work for?

H-1B visa holders may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B visa holders may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

What if the H-1B visa holder’s circumstances change?

As long as the H-1B visa holder continues to provide H-1B services for a U.S. employer, most changes will not mean that he/she is out of status. An H-1B visa holder may change employers without affecting status, but the new employer must first file a new Form I-129 petition for the individual before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the H-1B visa holder’s status in many instances. However, if the change means that the H-1B visa holder is working in a capacity other than the specialty occupation for which they were petitioned for, it is a status violation.

Must an H-1B visa holder be working at all times?

As long as the employer/employee relationship exists, an H-1B visa holder is still in status. An H-1B visa holder may work in full or part-time employment and remain in status. An H-1B visa holder may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Can an H-1B visa holder travel outside the U.S.?

Yes. An H-1B visa allows an individual holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Is a worker who travels abroad required to obtain a new visa stamp to be readmitted?

Not necessarily. If the visa Stamp is unexpired and in the same nonimmigrant classification (H-1B), no new visa stamp is required. The visa remains valid during its validity period regardless of a change in employer. The Department of State discourages new visa applications unless the old visa stamp is within 60 days of expiration. USCIS Associate Director for Domestic Operations Michael Aytes clarified in a memo that when nonimmigrants in L, O, or P classifications who change employers remain in the same nonimmigrant classification and have and unexpired visa stamp, they also can travel abroad using the prior visa stamp.

What happens if the visa stamp has expired and the worker needs to travel abroad?

The foreign national should wait for the approval of the new I-129 petition and apply for a new H-1B visa stamp at a U.S. consulate abroad before re-entering. If travel is imminent, consider using premium processing to expedite the adjudication of the I-129. To obtain a new visa stamp, the foreign national needs to submit the original I-797 petition approval notice with Form DS-156, Form DS-157 (If needed), a current passport, the required fees, and other documents as required by the particular consulate.

What happens if the foreign national is in another valid status—such as F-1—and travels abroad while the change of status to an H-1B is pending?

According to a U.S. Department of Justice memo, the H-1B petition should be adjudicated and, if approved, the foreign national would have to apply for a visa at a U.S. consulate abroad because the change of status will be deemed abandoned.

How does an H-1B non-immigrant change or add an employer?

One of the easiest ways for an H-1B visa holder to run into trouble with his or her visa status is to fail to comply with immigration regulations when switching employers or changing the terms of his or her employment.

The most difficult problems are often created when someone changes jobs without taking care of immigration issues. In fields like computer programming or physical therapy, it is not unusual for an individual to move frequently from employer to employer. But for an H-1B visa holder, each change can present challenges.

The first basic rule to note is that an H-1B is employer specific. In other words, it is only valid for the petitioning employer and only entitles the recipient to work for the employer approved by USCIS. That means that each time a worker moves to a new employer, a new H-1B approval is required. It is possible to apply for a change of employers without having to leave the U.S. and get a new visa stamp. However, it is important to remember that the process involved will be pretty similar to getting an H-1B visa from scratch.

At one time, it was thought that changing H-1B employers meant that a new visa stamp would be needed the next time someone leaves and reenters the U.S. after a change of status in the U.S. USCIS and the State Department now make it clear that as long as the visa is not expired, the applicant remains in H-1B classification. Note that someone who has changed from another visa classification to H-1B status while in the U.S. (such as F-1 status to H-1B status) that has never had a visa stamp will still need to get an H-1B visa at a consulate.

What is ‘H-1B Portability’?

In October 2000, former President Clinton signed the American Competitiveness in the Twenty-First Century Act (AC21). One of the most sought after provisions in AC21 is the “portability” provision, which eases the process of changing jobs. Under it, H-1B workers can begin working for a new employer as soon as the new employer files an H-1B petition for the worker. Regulations define “filing” as having been physically received by USCIS. Because this provision applies to petitions for new employment filed before or after the enactment of AC21, workers for whom a new petition was filed can begin work for the new employer immediately upon USCIS receiving the H-1B petition.

The primary limitation on this portability provision is that the new employer must have filed a “non-frivolous” petition, which is one with some basis in law and fact. To take advantage of the portability provision, the worker must be in the U.S. pursuant to a lawful admission and must not have engaged in unauthorized employment since that admission.

The portability provision has created concern among employers about how they will comply with I-9 requirements, which obligate employers to ensure that all employees are legally authorized to work in the US. While the worker who begins working for a new employer after the filing of a new petition is work authorized, the I-9 form contains no provision for such a situation. Employers in this situation should follow current documentation procedures, as well as keeping a copy of the worker’s I-94 and a copy of the receipt notice for the new H-1B petition.

How does the H-1B cap affect an individual who requests a change in employers?

USCIS has stated that the limit on the number of H-1B visas does not apply in this situation. However, if one leaves an employer and waits more than 30 days to apply for a new H-1B visa, the cap would apply again. Also, if one works for a cap-exempt employer and then switches to an employer that is not exempt from the cap, the cap will apply.

In the case of a concurrent filing of an H-1B petition where a person is working for an exempt employer and then seeks additional employment with a non-exempt employer, the cap will not apply to the second position.

What if you change employers and then decide to go back to the first employer?

The news here is good. The H-1B petition continues to remain valid until it expires or until the employer has it revoked. USCIS takes the position that if neither of the above has occurred, then one can resume work for the first employer without filing a new petition or amendment.

What if several employers file H-1Bs for the same worker?

Let’s say that two employers successfully file an H-1B petition and the worker enters to work for Company 1. After coming here, the worker decides to go work for Company 2 instead. Even if the worker never worked before for Company 2, the worker can switch to Company 2 without the need for a new petition. As noted above, a revocation of the petition by Company 2 or the expiration of the visa approval period for Company 2 would mean a new petition is required.

What about the case where an employee accepts a job with a second employer without giving up the first position?

There is no legal reason why this cannot take place. An H-1B worker can work for several employers simultaneously if desired. However, each employer must have a separate approval for the worker to work there. Also, USCIS does not recognize “co-employer” arrangements, so if this is the case either one employer must designate itself as the petitioner, or each employer must file a separate petition.

There are many times when a change in the nature of one’s employment will trigger the need to file either an amendment to an H-1B petition or a completely new petition. USCIS’s position is that if the change in employment is “material” then an amendment must be filed. So, for example, if there is a significant change in job duties, then a new petition will probably be necessary. Also, being transferred to a different legal entity within the same corporation would trigger an amendment. Also, in certain cases, changing job locations could require an amendment.

Mere changes in job titles without a serious change in job duties will probably not require an amendment. The same holds true for raises in salary unless the change is so great that USCIS presumes that the position is really a new one.

Note that changes in the corporate structure of a company could mean that a new H-1B petition must be filed. The general rule is that if a new legal entity is created, a new petition is required. This would be the case, for example, if a company is sold and the new company dissolves the old company without assuming its liabilities. A merger that results in the creation of a new company might also mean that new petitions should be filed. If the new company is what in corporate law is called a "successor in interest" then a new petition is normally not necessary. Changes in a company’s name will not trigger the need for an amendment or new petition, but an amendment is useful in order to avoid confusion when the worker reenters the U.S. after travel abroad.

Can an H-1B visa holder intend to immigrate permanently to the U.S.?

Yes. An H-1B visa holder can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without adversely affecting his or her H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an individual may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from USCIS to return to the U.S.



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