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Sep 17 Attorney Articles

The H-1B Visa

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Temporary Visa for Professionals in Specialty Occupations: the H-1B Visa

H-1B non-immigrant visas provide for admission of professionals who enter the United States to work for a U.S. employer in a specialty occupation – one that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree in the specific specialty. An H-1B number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

Primary Requirements and Considerations for the H-1B Visa

  • The foreign national and the U.S. petitioning employer must be in an employer-employee relationship. The U.S. employer must be able to hire, fire, supervise, pay, and otherwise control the H-1B worker. H-1B workers cannot be independent contractors of the U.S. employer.
  • The U.S. position offered must be in a specialty occupation, meaning that (1) the particular occupation must normally require at least a bachelor’s degree in a related field of study; (b) the degree requirement must be common for the position in the industry; (3) the employer must normally require a degree or its equivalent for the position; or (4) the job must be so complex or unique that it can only be performed by someone with a bachelor’s degree or higher in a field related to the position. Jobs in fields such as engineering, math, and business, as well as many technology fields, often qualify as a specialty occupation.
  • Foreign national must have at least a bachelor’s degree (or the equivalent) in a field directly related to the occupation. If a person has not completed a relevant bachelor’s degree, he or she may still be able to qualify based on a combination of education and related work experience. Three years of work experience in a field can equal one year of education. A formal evaluation of the work experience and education may be required.
  • Foreign national must be paid at least the actual or the prevailing wage for the job, whichever is higher, in the form of a salary/wage. The prevailing wage is determined based on the position in which the foreign national will be employed, specific requirements for education and experience, and the geographic location of the job, among other factors. The Department of Labor maintains a database of applicable current prevailing wage levels. Before an H-1B petition can be filed, the U.S. employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor. The prevailing wage is determined at the time of filing the LCA.
  • Foreign nationals in H-1B status can work part-time or full-time for more than one U.S. employer, as long as each employer files a separate petition for the respective position.
  • Some changes in H-1B employment may require the filing of an amended petition and/or a new LCA, while others do not.
  • The U.S. petitioning employer must pay the cost for the H-1B petition process. Also, if the H-1B worker is terminated prior to the end of the period of admission, the U.S. employer is liable for the reasonable costs of return transportation of the foreign national abroad.
  • H-1B non-immigrant visas allow for dual intent of the foreign national. This means that an H-1B worker may pursue an immigrant petition/green card application while in H-1B status without violating the terms of his or her visa.

H-1B Cap / Numerical Limits and Cap-Exempt Petitions

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The U.S. government’s fiscal year starts on October 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date. Cap numbers are often used up very quickly, and the government applies a random, computerized selection process (“lottery”) when the number of H-1B petitions received within 5 business days after April 1 exceeds the cap number. It therefore is important to plan in advance if a U.S. petitioning employer will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. A U.S. employer may not file more than one H-1B petition per prospective employee during the fiscal year.

Various types of petitions are exempt from the H-1B cap:

  • The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap.
  • H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.
  • A foreign national who has already been counted within the past 6 years does not count against the cap, unless he or she would be eligible for a new 6 years of H-1B status at the time the petition is filed (i.e., if he or she was out of the country for one year or if the work was seasonal, intermittent, or less than 6 months per year.)
  • A foreign national who has already been counted against the cap within the past 6 years and applies for an H-1B visa with a new U.S. employer (including portability) is not subject to the cap.
  • If an H-1B worker is concurrently employed with an exempt and a non-exempt employer, he or she will not be counted toward the cap. If the H-1B worker ceases to be employed in the cap-exempt position, an H-1B petition that is subject to the cap will not be approved if H-1B visa numbers are not available.

Portability of H-1B status to New Employer

A person in H-1B status in the United States may accept new H-1B employment with a different U.S. employer upon the filing of a new petition by the prospective employer, as long as (1) the foreign national was lawfully admitted; (2) the new petition is non-frivolous; (3) the new petition was filed before the date of expiration of the previously-authorized period of stay; and (4) subsequent to lawful admission and prior to the filing of the new H-1B petition, the foreign national was not employed without authorization. The H-1B visa holder may port to the new employer even if the I-94 has expired, as long as the former employer filed an extension of status while the I-94 was still valid and the petition is pending at the time of porting. Every H-1B portability petition must separately meet all the requirements for H-1B classification, as well as for extension of status, in order to be approved. Foreign nationals who formerly held H-1B visa status, but are now in another visa status, may not port.

An H-1B visa holder may port from a cap-exempt employer to a cap-subject employer during a period when there are no H-1B numbers because the cap was already reached, as long as the cap-subject H-1B is approved, the Labor Condition Application covers the entire period of employment, and the I-94 extends to October 1. If the petition is not approved, portability ceases.

Period of Stay

An H-1B petition is approved for up to three years, but may not exceed the LCA validity period. Petitions for extensions of stay may be filed, with the maximum period of stay being 6 years. Any time spent outside the United States while in H-1B visa status does not count toward the 6-year maximum and may be recaptured. The 6-year limitation does not apply to H-1B visa holders who reside less than 6 month per year in the United States, or are seasonal or intermittent employees. Also, time spent in H-4 status is not counted toward the 6-year maximum. A person who spends one year outside of the United States after having worked in H-1B status may begin the 6-year period anew. A 7th year is possible when an H-1B visa holder changes status to L-1A.

Change of Status and Extension of Stay for H-1B Visa Holders

If a foreign national is present in the United States pursuant to a valid, non-immigrant visa (i.e., B-1) and applies for Change of Status to H-1B, but where the H-1B cap is already reached for the upcoming fiscal year (starting October 1), he or she will be treated as “out of status” if his or her visa expires before October 1. This is the case even if the H-1B petition is approved. Due to the gap between the date that the old visa expires and the date that the H-1B visa commences, the Change of Status application will be denied. Special provisions may apply for F-1 and J-1 visa holders with Duration of Status (D/S).

Generally, a timely filed petition for an Extension of Stay to work for the same employer continues employment for 240 days beyond expiration of the I-94 while the decision is pending.

H-1B visa status may be extended in one-year increments beyond the 6-year limitation if a labor certification, I-140 immigrant petition, or employment-based adjustment of status (“green card”) application was filed at least 365 days prior to the expiration of the H-1B status. An extension may be given for more than one year (up to a maximum of 3 years) only when there is time remaining in the first 6-year period.

H-1B status may also be extended beyond the 6-year maximum for foreign nationals who are the beneficiaries of EB-1, EB-2, or EB-3 petitions with an approved I-140 petition, but who, due to per country limitations, are unable to file for obtain an immigrant visa or adjustment of status. Multiple extensions may be granted for periods of up to three years at a time.

Family Members of H-1B Visa Holders

Spouses and unmarried children under the age of 21 of H-1B visa holders may apply for H-4 dependent status. The same limitations on the period of stay that apply to the H-1B visa holder also apply to H-4 beneficiaries. Similarly, the same extensions beyond the 6th year that are given to the H-1B visa holder are also given to H-4s. H-4 visa holders are free to change status to H-1B, because any time spent in H-4 status is not counted toward the 6-year maximum. H-4 visa holders are not allowed to work in the United States, but may study.

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