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H1-B : Work Visa for Professionals

Generally

The H-1B is an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations. Aliens who are admitted in the H- 1 category may fill permanent positions in the United States , as long as their services are required for a temporary period.

Annual Limit on the Number of H-1B Aliens

The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Financial Year which begins on October 1. Applications for the upcoming Financial Year are accepted beginning on the preceding April 1 (or the first working day after that date). Those beneficiaries not subject to the annual quota are those who currently hold H-1B status or have held H-1B status at some point in the past six years and have not been outside the United States for more than 365 consecutive days.

The current law sets an annual limit of 65,000 on the number of foreign nationals who can receive H-1B status in the USCIS fiscal year. That limit is usually reached quickly after April 1st, the first day to apply. When the limit is reached, no more new applicants can get H-1B status until the following April. Only new applicants are counted against the H-1B cap. Extension applicants or applicants who change jobs are excluded from the cap. Also excluded are employees of institutions of higher education and affiliated nonprofit entities and nonprofit or governmental research organizations. If you are excluded from the cap, you can get H-1B status even after the limit is reached.

Obtaining Temporary Working (H-1B) Status

An H-1B petition cannot be filed more than six months before the date for commencement of the alien's services, as specified in the petition. As with all aliens seeking entry in the H-1B category, obtaining H-1B status for an H-1B ALIEN requires three steps:

  • obtaining prevailing wage determination
  • approval by the DOL of a labor condition application (LCA)
  • approval by the USCIS of an H-1B petition supported by the approved LCA
  • issuance by a U.S. consulate of an H-1B visa based on the approved petition (if outside the U.S. )

1) Step One: The Prevailing Wage Determination: before filing the LCA the employer must abtain a prevailing wage determination from a source acceptable to the DOL, and it must determine its own actual wage rate for resident positions at the job site where the H-1B alien will work (only after documenting both the privailing wage rate and the actual wage rate can the employer attest to payment of the "required wage rate", which is the higher of the two resulting rates of pay).

2) Step Two: The Labor Condition Application: After determining the prevailing wage the employer may proceed to submit a labor condition application (LCA) to the U.S. Labor Department. In addition to the wage requirement, the LCA requires that an employer attest that:

  • The H-1B's working conditions will not adversely affect those of U.S. workers similarly employed.
  • There is no strike or lockout at the facility.
  • The employer has given notice of the filing of an LCA to its employees either by serving the bargaining representative of the workers, or if there is no bargaining representative, by posting two notices that an LCA has been filed. The notice must advise that complaints regarding the LCA may be made to the Wage and Hour Division of the U.S. Labor Department. A copy of the LCA must be given to the H-1B alien.

By completing and submitting the LCA, and in addition by signing the LCA, the employer makes certain representations and agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the H-1B alien; these attestations are specifically identified and incorporated by reference in the LCA. The LCA contains additional attestations for certain H-1B-dependent employers and employers found to have willfully violated the H-1B program requirements; these attestations impose certain obligations to recruit U.S. workers, to offer positions to U.S. workers who are equally or better qualified than the H-1B nonimmigrant(s), and to avoid the displacement of U.S. workers (either in the employer's workforce, or in the workforce of a second employer with whom the H-1B nonimmigrant(s) is placed, where there are indicia of employment with that second employer.

3) Step Three: The H-1B Petition : The employer may submit an H-1B petition to USCIS once an LCA is approved. The employer must establish that both the offer of employment and the qualifications of the H-1B alien meet the standards outlined in the immigration law. The employer must demonstrate its ability to pay the appropriate wage.

4) Step Four: Obtaining Visa at US Consulate: Once your petition has been approved with the USCIS, you should obtain a visa at the US Consulate of your place of residence (if you are outside the country). The visa would be issued for a duration of your H1B status (usually up to 3 years). Petition approval is transmitted on USCIS Form I-797. Once petition approval is transmitted, arrangements can be made to obtain the nonimmigrant visa at an appropriate U.S. consulate.

The alien may not start working in the U.S. until the petition is approved and he has either changed his status to H-1B or has obtained an H-1B visa and entered the U.S.

Term/Duration

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the U.S. for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years.

Legislation enacted in 2000 provides two circumstances in which an H-1B alien may apply for an extension of stay beyond the usual limit of six years. First, an H-1B alien who has an approved preference petition and is otherwise eligible for adjustment of status except for the unavailability of an immigrant visa because of per-country limits may obtain an extension of status without regard to the six-year limit. Second, an H-1B alien who has a pending preference petition or adjustment of status application and who filed the underlying labor certification application or preference petition at least 365 days ago may have his or her status extended beyond six years. In other words, when one year has passed since the establishment of a priority date for permanent residence through the filing of the first papers necessary to establish such a priority date, the H-1B alien with a pending preference petition or adjustment application can continue to extend his or her H-1B status.

H-1B Employer

H-1B aliens 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 aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

The USCIS has issued guidance concerning the situations in which an employer leasing arrangement would be permissible. See USCIS Assistant Commissioner for Adjudications, dated December 29, 1995. Under an employer leasing arrangement, each party undertakes some, but not all, of the obligations of the employer. The party leasing out the employee retains the obligation to pay wages, withhold payroll taxes, provide worker's compensation insurance, and comply with employment laws. The party leasing the services of the worker has the right to hire or fire the employee and to control his or her day-to-day activities. Even though both of the employers in this situation appear to be "co-employers" of the, the Service does not recognize "co-employers" for H-1B purposes, and, therefore, employers involved in such arrangements should designate who will file the H-1B petition, provided that the designated party meets the USCIS definition of an employer. Since only one of the employers can undertake the obligations required by the Department of Labor through the LCA and file an LCA with the DOL, and since a certified LCA from the employer filing the H-1B petition must be attached to the petition in order for the USCIS to adjudicate it, then it appears that the employer responsible for paying the alien worker must also file the H-1B petition.

Travel

An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition. However, if the visa stamp has expired, the alien needs to reapply for the visa at the consulate of his home residency (or in Canada in some cases) if he decides to leave the U.S.

Dual (Immigration) Intent

Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent , meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card ) while still a holder of the visa. There is no presumption that H1B holder is immigrant; need not enter ''temporarily" or have a residence abroad which he/she has no intention of abandoning; and filing of immigrant petition or other indication of seeking permanent residence is not evidence of abandoning foreign residence for purposes of seeking or maintaining H-1B status. This distinction from other nonimmigrant visas is very important for H-1B nonimmigrant while applying for certain immigration benefits.

Maintaining Lawful Status

As long as the alien continues to provide H-1B services for a U.S. employer he is considered to be “in status”. With regard to the "in status" requirement, the USCIS has recently clarified that H-1B status ends the moment an employee is "terminated" from his or her employment, and that no "grace period" exists in such situations. In contrast, a "laid off" or "benched" worker, who is simply in inactive status for the employer (e.g., due work slowdowns) remains in status. Similarly, when the alien is not performing work for the employer as a result of his own needs, such as sick leave or vacation, the alien is not considered to be out of status simply due to the inactivity so long as the employment relationship continues. Once an employee is "fired" or terminated and no employment relationship continues, the alien is no longer in H-1B status and cannot take advantage of the portability provision.

The merger or sale of an H-1B employer's business will not affect the alien's status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation. If there is a material change in H-1B holder's employment, then it is a possibility that an employer will have to file new H-1B petition.

Green Card Opportunity:

A U.S. employer may obtain permanent residence ("green card") status for an H-1B alien if the employer can demonstrate that it is unable to locate a U.S. worker to fill the position. For the process of obtaining permanent residence through employment click here.