What is an H-1B visa?

An H-1B visa is for foreign nationals coming temporarily to the United States to perform services in a specialty occupation, or as a fashion model of distinguished merit and ability.

What is a specialty occupation?

A specialty occupation is one which "requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and which requires the attainment of a bachelor's degree or higher in a specific specialty as a minimum for entry into the occupation in the United States."

Which means that the position requires a person working in a specialty occupation to perform the duties and the person meets the requirements for the position.

The need for a person in a specialty occupation can be shown by one of the following:

1. A bachelor's or higher degree is normally the minimum requirement for entry into the particular position;

2. The degree requirement is common in the industry in parallel positions among similar organizations, or the position is so complex or unique that it can be performed only by an individual with a degree;

3.  The employer normally requires the degree for the position; or

4. The nature of the duties are so specialized and complex that knowledge required to perform them is usually obtained through a bachelors level or higher education.

Examples of specialty occupations include positions in accounting, architecture, the arts, business, computers, education, engineering, law, mathematics, medicine and health, physical sciences, social sciences, and theology.

How can foreign nationals show that they qualify for an H-1B visa?

Applicants must show that they have earned the equivalent of a U.S. bachelor's degree, and they must have an offer of employment from a U.S. employer willing to act as an H-1B sponsor.

Who qualifies as a U.S. employer?

U.S. immigration law defines an employer as "a person or entity who engages the services or labor of an employee to be performed in the United States for wages or other remuneration."

What obligations does an employer have to the H-1B visa holder?

The U.S. employer must make a written commitment in a Labor Conditions Application (LCA).  In the commitment, the employer agrees to:

• Pay the H-1B employee the prevailing wage for the position being offered

• Provide the same working conditions for H-1B employees as for other workers

• If Dependent Employer, recruit and not displace U.S. workers by hiring foreign nationals with H-1B visas; and

• Agree to abide by Department of Labor regulations or be subject to payment of back wages, penalties, and exclusion from immigration programs

What is the prevailing wage?

The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment. This wage rate is usually obtained by contacting the State Workforce Agency (SWA) having jurisdiction over the geographic area of intended employment or from other legitimate sources of information, such as the Online Wage Library.  The most common wage survey that is used is the the Occupational Employment Statistics (OES) Survey.

What is the Labor Condition Application?

Not to be confused with the Labor Certification Application used in the green card process, the Labor Condition Application is an integral part of the H-1B visa.  The Immigration Act of 1990 requires the H-1B petitioner to file an LCA with the Department of Labor prior to filing the H-1B petition.  The qualified U.S. employer must attest to the following on the LCA:

• Job title
• Actual salary (or salary range)
• Occupational code
• That it is offering the prevailing wage
• Source of the prevailing wage
• That the alien will be paid the higher of the prevailing wage or the actual wage normally paid for the specific position
• That there is no strike or lockout in the occupation at the place of employment
• That it has given notice of the filing to employees; and
• That working conditions will not adversely affect other workers similarly employed

What is the LCA posting requirement?

The signed LCA must be posted for ten business days in two conspicuous locations (such as notice boards or within the vicinity of the water cooler) at the place of employment.  If this is a unionized job or there is a bargaining representative for the position, the notice must be given to the bargaining representative.

The H-1B employer also has an obligation to give a copy of the LCA to the H-1B workers and post further notices when the alien goes to work off-site.  The employer must file a new LCA and amended H-1B petition in cases where an H-1B holder is posted at a different location for long term.  The law requires the employer to pay per diem at a federal government level and transportation expenses when alien goes to work off-site.  Violations of these regulations may result in stiff penalties to the employer and the H-1B alien may go out of status. 

What records must the Employer keep with regard to H-1B visa petitions?

The employer is required to have a public inspection file on the business premises.  This file must contain the following:

• LCA
• Source of Prevailing Wage
• Actual Wage Information
• Other compliance documents

What is the process for applying for an H-1B visa?

The sponsoring U.S. employer submits an LCA with the Department of Labor.  The DOL certifies the LCA and returns it to the employer, who then files Form I-129 with the USCIS. 

What are the fees for filing and H-1B visa and who is required to pay them?

The employer is required to pay the filing fees associated with the H-1B visa petition.  The fees include:

• Filing fee of $320

• ACWIA fee for $750 for employers with 25 or fewer employees and $1500 for employees with more than 25 employees (some exemptions may apply for this fee)

• $500 Fraud Prevention and Detection fee (required when an employer is sponsoring an employee for the first time)

What is premium processing?

The Premium Processing service offered by USCIS offers American employers faster processing of their petitions for H-1B visas and certain other forms of immigration status.  The U.S. employer pays a premium with a guarantee from the USCIS that if the petition is not processed within 15 calendar days, the premium will be refunded.

Does an H-1B worker have to work all the time to remain in status?

No.  The USCIS considers that holders of H-1B visas remain in status as long as the employee/employer relationship continues to exist.  As a result, H-1B workers may work part-time (as long as there is an approved amended I-797), as well as full time, and may go on vacation or sick leave, or maternity/paternity leave, so long as the employee/employer relationship is considered intact.

What happens if an H-1B worker is "benched"?

A "benched" employee is one who is not working temporarily because no work is available at the time.  The employee retains his or her H-1B status and is still entitled to receive the compensation specified in the LCA.  If the employer fails to pay the wage, it must provide back pay and risks penalties for failing to meet the LCA conditions.  However, the employer does not have to compensate the H-1B employees who take time off for personal reasons unless the employer normally does this for other employees.

May an H-1B holder work for multiple employers?

Yes.  However, each employer must file its own concurrent H-1B petition.  Further, the employer who originally filed the H-1B petition may also place the H-1B employee on another work site, but only if all Department of Labor and other applicable USCIS rules are followed. 

What happens if circumstances change for the H-1B employee or the employer?

The United States government requires an amended petition when the H-1B employee:

• Works in a new location different from that specified in the LCA

•  Takes on job duties that differ significantly from those described in the I-129 petition; or

• Transfers to a different legal entity within the employer's corporate structure. An amended petition must also be filed if:

• The employer's tax identification number changes; or

• The H-1B employer merges with another company that establishes a third entity that will employ the alien.

U.S. immigration law does not require an amended petition if a change in the employer's legal structure results in a new entity that assumes all the rights and obligations of the original H-1B employer.

May an H-1B worker change jobs?

An H-1B worker may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer, and the following conditions must apply:

•  The H-1B worker entered the U.S. lawfully the last time he or she entered the country

• The employee has never been employed without authorization since his or her last lawful admission; and

• The H-1B transfer petition is not considered frivolous

May an H-1B visa holder file for an H-1B transfer upon termination?

The simple answer is No.  An H-1B visa holder is considered to be out of status on the day of termination.  In order to remain legal in the U.S., the H-1B visa holder must file for H-1B transfer or change of status prior to getting terminated from the present H-1B employment.  Some exceptions do exist, however.  In light of stricter enforcement of immigration laws and regulations, the chances of getting merciful treatment from the USCIS is remote.  Sometimes (underline this sometimes and take it with a grain of salt) the Adjudication Officers at the USCIS have been using their discretionary power to approve H-1B's provided the H-1B petition was submitted within a couple of weeks from the date of termination.

How many H-1B's are available every year?

From Fiscal Year 2004 on, the cap for new H-1B's visas is 65,000 per fiscal year. 

Of that 65,000, 6,800 are reserved for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements and to the extent unused can first be made available for general use on October 1, of the new fiscal year.

The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The Act also makes available 20,000 new H-1B visas for foreign workers with a master's or higher-level degree from a U.S. academic institution.

Does the annual cap apply to everyone who applies for an H-1B visa?

No.  The cap only applies to new H-1B visa petitions.  Certain individuals are exempt from the cap, such as:

• H-1B employees of exempt organizations, such as institutions of higher education, nonprofit organizations affiliated with institutions of higher education, and nonprofit or government research organizations.

• Current holders of H-1B visas who are applying for extensions of those visas or who are filing amended H-1B petitions because of a change in employers or the terms of employment, and petitions for concurrent H-1B employment

What is the maximum stay on an H-1B visa?

The initial petition for an H-1B visa is approved for a maximum of three years, a period that begins when the foreign national arrives in the United States.  The visa may be extended for an additional three years, for a total maximum of six years.  The person must leave the U.S. for one year following the six-year period, but then may re-enter the U.S. on a new H-1B visa.

May an H-1B be extended beyond the 6-year maximum?

Yes.  An H-1B may be extended beyond the initial six years in one-year increments if an H-1B visa holder has a Labor Certification, or an I-140, Immigrant Petition pending for more than one year prior to the end of the six-year period.  If the H-1B visa holder has an approved I-140, Immigrant Petition, the H-1B may be extended in increments of three years beyond the initial six-year period

What status is available for the spouse and child of an H-1B worker?

The H-4 visa is for the spouse or unmarried children under the age of 21 accompanying or following an applicant of H-1B.  H-4 visas are valid for the same length of time as that of the H-1B.  U.S. law forbids H-4 visa holders to engage in any kind of gainful employment, but they may attend school.

May an H-1B visa holder travel outside the United States?

Yes, anyone holding a valid H-1B visa may travel outside the U.S. and re-enter the country during the period that the visa is valid.  Generally, Adjustment of Status applicants need Advance Parole to travel outside the U.S.  An exception to this basic rule exists for H and L visa holders.  They are allowed to travel abroad without an Advance Parole provided they have a pending adjustment of status application and have been maintaining valid H and L status while the adjustment application is pending.

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

Yes, H-1B workers may apply for permanent residency in the U.S. on the basis of employment in the U.S.  Furthermore, one of the advantages of having an H-1B visa is the "dual intent" ability.  This means the beneficiary (H-1B worker) may have immigrant intent and still be eligible for the visa.  Thus, the beneficiary may simultaneously maintain his or her H-1B while pursuing a permanent labor certification or other immigrant classification.

For Immigrant Visa options, please contact our office and schedule an appointment with an attorney.

What is the role of the Law Offices of Keshab Raj Seadie, P.C. in applying for an H-1B visa?

• Analyze the job being offered and the beneficiary's education and work experience to determine if the specialist/professional criteria are satisfied

• Gather documents and data to support the application

• Evaluate and document the prevailing wage for the job being offered

• Document the employer's actual wage

• Prepare the LCA for the employer

• File the LCA with the Department of Labor

• Obtain an evaluation of the employee's college education, if it was obtained outside the U.S. to show that it is equivalent to a U.S. degree
  

• Prepare an H-1B petition and employer letter of support and send them to the employer for review and signature

• File the LCA and H-1B petition with the USCIS once the DOL approves the LCA

H-1B approvals are usually issued within two to three months from the date of filing with the USCIS, unless premium processing is used.

The above process differs somewhat for an employee who is overseas or who has a valid H-1B visa from a previous employer.

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