H-1B

The H-1B is a non immigrant visa that permits an employer to temporarily employ a foreign national in a “specialty occupation”. A specialty occupation is defined as having a theoretical and practical application of specialized knowledge and the position generally must require a bachelor’s degree or an equivalent in the specialized field of study. In order for the foreign national to qualify for an H-1B visa, he or she must possess a bachelor’s degree in that field, or have a combination of experience and education that would equate to a degree in the field. The H-1B visa also is available to fashion models of distinguished merit and ability, or individuals working on certain types of projects for the Department of Defense.

There is an H-1B limit set by the U.S. government for each fiscal year. The current number of new H-1B visas issued each fiscal year is 65,000. An additional 20,000 H-1B visas are reserved for workers who possess a master’s degree or higher from a U.S. institution and are not counted in the 65,000 limit (“cap”). Foreign nationals who are already in the U.S. and hold H-1B status and are filing an extension of status or change of employer are not counted in the 65,000 limit.

H-1B workers can have dual intent, meaning that they may seek permanent residence in the United States and are not required to maintain a foreign residence abroad.

H-1B workers can only work for the sponsoring employer. H-1B worker can be sponsored for a part time position and can therefore hold H-1B status with more than one employer, however each employer must file a separate petition to qualify the foreign national for the H-1B. Note that an H-1B employer is not permitted to bench a full-time or part-time H-1B employee due to a work shortage. The compensation for an H-1B worker must be the same prevailing wage or higher and benefits package normally offered to other U.S. workers in similar positions.

If an H-1B worker is terminated prior to the end of the approved H-1B petition, the employer is responsible for paying the return transportation costs.

How to Apply

The sponsoring employer must provide the following in support of the petition:

  • documentation of the specialty occupation;
  • company’s ability to pay the prevailing wage;
  • foreign national’s qualifications, including degree and/or any degree equivalency determinations.

The above documentation is submitted to the designated USCIS service center for adjudication. When the petition is approved, and if the foreign national is already in the United States on another visa, the individual can begin working as of the approved dates listed on the petition.

If the foreign national is outside the United States, he or she will be required to go to the U.S. Consulate or Embassy to obtain an H-1B stamp prior to entering the U.S to begin work.

For the foreign national who already hold H-1B status (with another employer), the foreign national may commence working for a new H-1B employer upon the filing of the H-1B petition, if certain conditions are met. This allows an H-1B worker to “port” or move to a new employer without having to wait for USCIS approval. Three conditions must be met:

  1. the H-1B holder must have been admitted lawfully to the United States;
  2. the non frivolous H-1B petition for new employment was filed before the end of the authorized stay; and
  3. the H-1B holder must have remained in proper status (meaning no unauthorized work) since being admitted to the United States.

There are serious immigration consequences associated in unauthorized work. The portability provision should be discussed with an immigration lawyer handling the case prior to the foreign national beginning work.

The regular processing time for H-1Bs is approximately 120 days or more. For employers requiring a faster turnaround, USCIS has a “premium processing” service by which it guarantees a decision within 15 days so long as an additional $1000 supplemental fee is paid in additional to the normal filing fees.

For assistance in compiling the application for an H-1B worker, please contact our office.

Duration

An H-1B petition may be approved for up to three years, and may be extended for an aggregate period of six years maximum. Prior time spent in H-4 or L status will be counted toward the six-year period. An employer can request that an H-1B visa be valid for a specified period as long as it is less than three years.

If an H-1B worker is at the end of his or her six year period on H-1B, the foreign national must depart the United States and reside abroad for a full year before becoming eligible to reapply for H or L status again. Note that an H-1B worker may qualify to extend the H-1B beyond six years, in one-year increments, if a labor certification application or I-140 immigrant petition was filed on his or her behalf at least 365 days prior to reaching the six-year limit.

If an H-1B employee is laid off or fired, the H-1B status ends when the employment ends, and there is no grace period. If an H-1B employee’s status expires, the foreign national has 10 days after the expiration to depart the United States or apply to change employer or status. The USCIS, in its discretion, may approve a change of employer petition and an extension of stay if there was a gap in employment that was beyond the foreign national’s control.

Dependents

Spouses and unmarried children under 21 years of age may apply separately for H-4 status. Dependents in H-4 status are not authorized to work in the United States.

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