H1
CATEGORY: 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.
