H-1B Visa // Frequently Asked Questions
Just over a year and a half ago I helped put together an H-1B question and answer list. I’m going to be posting more information over the next few weeks about the H-1B visa process because of the upcoming application date. If you have other questions, drop them in the comments after this list.
What is an H-1B?
A: The H-1B is a nonimmigrant visa classification used by an individual who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.
What is a specialty occupation?
A: 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, computer science, information technology, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts are specialty occupations.
How do you apply for an H-1B visa?
A: H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (“LCA”) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file an I-129 petition with the United States Citizenship and Immigration Services (previously INS).
What is the Wage Requirement?
A. The US
employer must show that the wage offered to the beneficiary is equal to 100% of the prevailing wage as established by the Department of Labor, or the actual wage paid by the employer to similar employees– whichever is higher. The prevailing wage is usually determined through the State Workforce Agency (SWA).
How much are the filing fees?
A. There are three sets of required fees. First, the standard petition fees for the I-129 petition (currently $320) and if the prospective employee is abroad the additional fees at the consulate. Second, a fee of $1,500. But if the employer does not have more than 25 full-time employees, then only $750. Third, a $500 fraud prevention and detection fee.
Also, H-1B employers and applicants also have the option to pay an extra $1,000 for premium processing. And if there are any dependents seeking H-4 status, there is an extra $300 filing fee.
In general, the employee can pay the filing fees, assuming payment will not bring the employee’s wages below the required wage. But the $1500/$750 fee payable under section 213(c)(9) of the Immigration and Nationality Act must be paid by the employer.
Schools and nonprofits are generally exempt from the $1500/$750 fee, as are H-1B employees applying for their second extension and all subsequent extensions. The fraud fee must be paid by all employers, including schools and nonprofits, but must only be paid on initial applications or when switching employers.
NOTE: Determining the proper filing fees, especially for extensions and transfers, can be quite complicated. Please consult an immigration lawyer when making this determination for specific cases.
What is the H-1B Cap?
A. The H-1B visas per year are capped at 65,000 per fiscal year less the used Free Trade visas for Chile and Singapore resulting in around 58,200 H-1B visas. The Cap does not include an additional 20,000 visas per year for persons who have earned a master’s or higher degree from a United States institution of higher education. Also, some professors and/or researchers at institutions of higher learning and nonprofit institutions are exempt from the Cap.
Only “new employment” is covered under the Cap. USCIS can no longer count against the Cap any person who has already been counted within the last six years unless the H-1B applicant would be eligible for a new full six years of authorized H-1B admission at the time the new petition is filed. An H-1B could be eligible for a full 6 years if s/he was out of the country for a year or if the works/he was
performing in the U.S. was seasonal, intermittent or less than 6 months per year. See more on the Cap from USCIS.gov.
How long can an individual be in H-1B status?
A: An individual can be in H-1B status for a maximum period of six years at a time. After that time they must remain outside the United States 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.
But there are exceptions to the 6-year limit. An H-1B holder may extend his or her status beyond the 6-year limitation if a labor certification, I-140 petition or employment-based adjustment of status application has been filed where 365 days or more have elapsed, since the filing of the labor certification (if one was required) or the filing of the I-140 petition. In this case, H-1B status can be extended in 1-year increments.
And under AC21 104(c), if the H-1B holder is the beneficiary of a 1st, 2nd, or 3rd preference employment-based petition but is unable to get his or her visa due to per country limitations, they can extend H-1B status up to 3 years at a time, but they must have an approved I-140.
Who can an H-1B employee work for?
A: An H-1B employee 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 (such as Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have an I-129 petition filed by each employer.
What if the H-1B employee’s circumstances change?
A: As long as the employee continues to provide H-1B services for a U.S. employer, most changes will not mean that an individual is out of status. S/he may change employers without affecting status, but the new employer must file a new I-129 petition for the individual before s/he begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the employee’s status in many instances. However, if the change means that the employee is working in a capacity other than the specialty occupation for which they petitioned, a new petition must be filed.
Must an H-1B employee be working at all times?
A: As long as the employer/employee relationship exists, an H-1B employee is still in status. An H-1B employee may work in full or part-time employment and remain in status. An H-1B employee may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
Can an H-1B employee travel outside the U.S.?
A: Yes, an H-1B visa allows an individual holding that status to reenter the U.S. during the validity period of the visa and approved petition.
Can an H-1B employee intend to immigrate permanently to the U.S.?
A: An H-1B employee can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as “dual intent” and has been recognized in immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an employee may travel on his or her H-1B visa rather than obtaining advance parole or request other advance permission from USCIS to return to the U.S.
Who is eligible to use the H-1B “portability” provisions?
A: The portability provisions allow a nonimmigrant previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the individual. Previously, individuals in this situation had to await approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed “before, on, or after” the date of enactment (October 18, 2000), so all individuals who meet this definition can begin using the portability provisions.
If my company is acquired by another company, do I have to file for an amended H-1B?
A: No. An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
Can the H-1B employee work at different sites?
A. Yes, but a separate Labor Condition Application must be filed for each site at which the employee will be working.
What are the advantages to applying for an H-1B visa?
A. Unlike many other nonimmigrant visa categories, it is a “dual intent” visa. It can not be denied simply because an individual intends become a permanent resident of the United States. Also, the employer does not need to demonstrate a shortage of qualified US workers and the labor certification process can be avoided.
Can a foreign national apply for multiple H-1Bs?
A. Yes, a person can apply for multiple H-1B’s and work for more than one U.S. employer, but he/she must have an I-129 (petition for non-immigrant worker) filed by each employer. As long as the employee has been counted against the H-1B quota in the past six years, the petition to work for another employer concurrently is not subject to the cap.
Can the H-1B worker’s spouse/children work or study in the US?
A. Dependents of an H-1B worker are granted H-4 status. They cannot work unless they can obtain a work visa in their own right. Time spent in H-4 status does not count against the six-year maximum period of admission applicable to H-1B workers. Thus an individual who was previously an H-4 dependent may subsequently become an H-1B principal and will be entitled to the maximum period of stay (6 years).
H-4 dependents may undertake study in the US.
What is Labor Attestation?
A. The filing and approval of a Labor Condition Application (LCA) is a requirement that must be met before filing the H-1B petition. Through the LCA, sponsoring employers agree to several undertakings, enforceable by civil and criminal penalties. Specifically, the employer agrees:
· To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the “prevailing wage” for the occupation in the area the worker will be employed;
· That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer’s US-resident employees in similar jobs;
· That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H-1B workers to be employed at the site of any subsequent strike or lockout;
· That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H-1B beneficiary will be working;
· To maintain records of the LCA and the H1B worker’s employment for inspection by the US Department of Labor.
Can you talk more about H-1B visa eligibility?
A. Before filing an H-1B visa, two questions must be answered affirmatively.
1. Is the US employer recruiting the beneficiary to fill a “specialty occupation”?
2. Does the beneficiary meet the requirements for the occupation?
First, the US employer must be seeking to fill a temporary position in a “specialty occupation.” The definition of a “specialty occupation” is “an occupation that requires (1) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.” “Specialty Occupations” include accountants, computer analysts, programmers, database administrators, web designers, engineers, financial analysts, doctors, nurses, scientists, architects, lawyers, and more. It is important to note that the required degree must be reasonably related to the position. General degree requirements will often be challenged. The employer must be ready to demonstrate that a specific degree or narrow degree field is a legitimate prerequisite to doing the job.
Second, the foreign national must possess the required bachelor’s degree or requisite experience to qualify for the job. The beneficiary’s degree must be related to the occupation. The degree requirement calls for a degree “customarily awarded from an accredited US college or university,” but the requirement may also be satisfied by a foreign degree that is determined to be equivalent to a US bachelor’s degree. Foreign degrees must be evaluated by a US-based credentials evaluation service to determine whether they are equivalent to a US bachelor’s degree or higher. Another method of satisfying the degree requirement is by using experience. USCIS allows the use of 3 years of “specifically more responsible work experience in the field” to equate to 1 year of missing academic studies. Thus, if the foreign national has no degree, he will need 12 years of progressive experience in his field to qualify for an H1-B visa in his field. Alternatively, if the foreign national has completed 2 years towards his bachelor’s degree, he may qualify for an H1-B specialty occupation by documenting an additional 6 years of progressive work in his field.
Finally, if an occupation requires licensure or professional credentials (e.g., doctor, dentist, attorney, CPA), the individual must already hold such qualification before the H1B visa petition can be filed. It is not sufficient to show that a license has been applied for, or is expected to arrive. The individual must have a full and unrestricted ability to engage in the profession before approval will be granted.