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Temporary Workers (H-1B)

General

H-1B visa category is designated for temporary foreign workers in specialty occupations or as a fashion model of distinguished merit and ability. It is the most commonly used category for hiring of foreign workers by U.S. employers. There are two (2) important issues to consider when applying for H-1B visa. The first issue is whether the position for which a foreign worker is being hired is a specialty occupation. The second issue is whether that worker has the necessary credentials to qualify for specialty occupation.

Q: What is specialty occupation?

A: Specialty occupation is one which requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the job duties and which requires the attainment of a bachelor’s degree or higher (or its equivalent) as a minimum requirement for entry into the occupation in the United States. In general terms, employer must demonstrate that:

1)a bachelor’s or higher degree or its equivalent is normally required for the position.
2)a bachelor’s or higher degree or its equivalent is normally required for similar positions in the industry.
3)the particular position is so complex or unique that a bachelor’s degree or higher or its equivalent is required to perform the job duties.
4)the employer normally requires at least a bachelor’s degree or higher or its equivalent for the position.

Q: What are the steps in obtaining an H-1B visa?

A: The first step in H-1B process is determining the required wage. Once this determination is made, a Labor Condition Application (“LCA”) can be filed (the second step). The third step is filing a Petition for a Nonimmigrant Worker (“H-1B Petition”) with the U.S. Citizenship and Immigration Services (“USCIS”). If the beneficiary of such petition is already in the United States in H-1B status working for another employer, or in another nonimmigrant status, and the request for amendment or change of status is approved, this may be the last necessary step in the process. If the beneficiary of the H-1B petition is abroad, or if there is a need to obtain a U.S. visa (for example to be able to reenter the U.S. after a trip abroad), then the final step would be obtaining a visa at a U.S. Consulate abroad.

Q: What is Wage Requirement? What salary satisfies this requirement?

A: Determining the correct wage level is crucial to the process of obtaining H-1B status. Every employer must attest that it will pay the “required wage”, which is the greater of the actual wage level paid by employer to all other similarly employed workers at the work place, who possess similar experience and qualification or the prevailing wage for the occupation in the area of employment.

Q: What is Actual Wage? How is it determined?

A: The actual wage is what the employer pays all other employees in a similar job, who possess similar qualifications and experience. This is determined by looking at wages at the employing organization. Factors, such as, level of experience, qualifications, education, job responsibility and function, specialized knowledge, and other legitimate business factors may be taken into consideration when determining actual wage level. An H-1B worker must be paid at least as much as any similarly situated employee within the organization, or higher, if the prevailing wage is determined to be higher.

Q: What is prevailing wage? How is it determined?

A: Prevailing wage deals with the wages for the specific occupation in the area of employment, rather than any particular organization. The Department of Labor regulations provide that the prevailing wage is to be determined on the basis of the best information available at the time of filing of application. In practice, prevailing wage is most commonly determined either by requesting a prevailing wage determination from a local State Workforce Agency (this is by far the safest way, but not necessarily the most efficient), or by utilizing a published survey from an independent authoritative source for the occupation in the area of intended employment, or by relying on another legitimate source.

Q: I am a researcher at a nonprofit organization and my salary is lower than the average salary in the industry. Will this be a problem?

A: Prevailing wage for employees of institutions of higher education or related or affiliated nonprofit entities, as well as nonprofit research organizations or Government research organizations is calculated only on the basis of the wages of employees in such institutions or organizations. Therefore, there is no need to compare or take into account prevailing wages in the industry, which tend to be significantly higher than those in the nonprofit or research organizations. Therefore, as long as the salary is on the level of other nonprofits or research organizations, this should not be a problem.

Q: What is Labor Condition Application (LCA)? What is the purpose of LCA?

A: LCA is a Department of Labor form, which must be certified as a prerequisite to H-1B approval. The employer enters certain basic information about the proposed employment, such as wage, period and location of employment. The employer also makes certain attestations, such as that it pays and will continue to pay the required wage, provide working conditions for the H-1B employee that will not adversely affect the working conditions of other similarly employed workers, that there is no strike or a labor dispute, and that it has posted a notice of filing of LCA (posting or notice requirement).

Q: What is “notice requirement”?

A: A notice of filing of LCA is required to be provided to either to the collective bargaining representative or, if the job is not unionized, to the employees at each place of employment where H-1B worker will be employed. The notice must be posted on or within 30 days before the LCA is filed, and it must remain posted for 10 consecutive days.

Q: What is the next step after filing LCA?

A: Filing the LCA is just the beginning of the H-1B process. The next step is filing an H-1B petition with the USCIS. The petition and the supporting documents outline the employer’s need for the H-1B worker, the professional position, and the qualifications of the prospective employee. Employers may also request a change of status for someone who is already in the United States in a different nonimmigrant status, or they may request an extension of status for someone who already holds H-1B status.

Q: Is there a time limit on working pursuant to H-1B visa?

A: Yes, the limit is generally six (6) years total. This does not apply to employees who spend less than 6 months per year in the United States, or to seasonal and intermittent employees. Also, any time spent outside the United States does not count toward the limitation. Those who hold H-1B status and spend at least one (1) year outside the United Sates, may be granted another six (6) year period in H-1B status. Time spent in L status will count against the available H-1B status and vise versa.

Additionally, USCIS recently reversed its position on the issue of whether those who were in H-4 and L-2 status (dependents of H and L employees) may be eligible for full six (6) years in H-1B status, should they find employment of their own. Accordingly, the USCIS will not count any time spent in H-4 or L-2 status against the six (6) year limitation on H-1B status.

There are, however exceptions to the 6 year limitation on H-1B status. These apply if a labor certification, an I-140 Immigrant Worker Petition or an employment-based adjustment of status application has been filed and more than 365 days have elapsed since the filing. Additionally, H-1B status may be extended beyond 6 years for a person who is the beneficiary of a first, second, or third employment based immigrant petition (Approved I-140 Petition), but is unable to obtain his or her immigrant visa due to per country limitations. In these circumstances, H-1B petitions may be extended beyond 6 six years in increments of one year.

Q: For whom can an H-1B alien work?

A: H-1B employment is employer specific. In other words, an H-1B employee may only work for the employer for which the H-1B petition has been approved, or in certain circumstances, for which the petition has been filed.

Q: Can H-1B employee change or add employers? How is it done? Can H-1B employee start employment with new employer upon filing new petition?

A: Yes, H-1B employee may change employers. This change is accomplished by filing a new H-1B petition for the new employer. In most cases, H-1B employee may start working for the new employer as soon as the new H-1B petition is filed, without the need to wait for the change to be approved. See explanation of portability provisions below.

Q: What is H-1B Portability?

A: Portability has to do with commencing new employment upon filing of H-1B petition. It is available to persons in H-1B status if: 1) the person was lawfully admitted; 2) the new petition is nonfrivolous (one that is not without a basis); 3) the new petition was filed before the date of expiration of the authorized period of stay; and 4) the person seeking portability has not been employed without authorization before filing the new H-1B petition. In this context, filing means that the petition has been physically received by USCIS, which depending on the method of filing may be a few days following the mailing of the documents.

Q: What if you change employers and decide to go back to the first employer?

A: Although some practitioners debate this issue, general consensus is that if person in H-1B status for one company, switches to another, which also filed an H-1B petition, and later wants to go back to the first employer, s/he may do so without the need to file another H-1B petition for the first company, for as long as the first petition has not yet run out.

Q: What if more than one employer filed H-1B petitions for the same employee?

A: H-1B employee may work for more than one employer, but each employer must file a separate H-1B petition.

Q: What is H-1B cap?

A: H-1B Cap is a numerical limitation on the number of new H-1B visas that may be issued every year. Currently, the Cap is set to 65,000, less Free Trade Visas for Chile and Singapore, which brings the number down to 58,200.

Q: Who is subject to the H-1B cap? Are there any exceptions?

A: Only new employment is covered by the Cap, which means that petitions seeking to extend or change employment, for H-1B status holders who have already been counted toward the Cap in the preceding six (6) years, are not subject to this numerical limitation.

Exceptions to the cap also include the following:

Persons employed at universities, affiliated nonprofit entities, nonprofit research organizations, and government research organizations;
Persons already counted toward the cap within preceding six (6) years;
Physicians who obtained a waiver of the two-year home residency requirement through the Conrad State 30 program;
Persons already in H-1B status, who request extension of H-1B petition with the same employer, change of employer, or concurrent employment.

Q: How does H-1B cap affect employees who request a change of employers?

A: If H-1B employee was counted toward the Cap the first time around, when the current employer filed its petition, then s/he will not be counted toward the Cap when switching employers. If the H-1B worker was not counted toward the Cap, then s/he will be counted toward the Cap when switching employers, unless s/he qualifies for one of the exemptions discussed above.

Q: How does H-1B cap affect those who possess US master’s degree?

A: The first 20,000 H-1B petitions filed on behalf of employees who posses U.S. Master’s degree or higher, are exempt from the annual H-1B Cap.

Q: What is dual intent doctrine in context of H-1B visa?

A: Dual intent doctrine is recognized by the USCIS and DOS in granting visas and extensions to H-1B employees and their family members. This means that although H-1B is a nonimmigrant category, which generally requires demonstration of intent to remain in the U.S. temporarily, filing of an Immigrant Visa Petition or an Adjustment of Status application will not disqualify H-1B/H-4 nonimmigrant from admission as a nonimmigrant or from filing an extension of status petition. In other words, H-1B/H-4 nonimmigrants can have both nonimmigrant status and a pending permanent residence petition; they will not be denied H-1B/H-4 status simply because they filed a permanent residence petition.

Q: Can spouses and children of H-1B employees obtain a visa?

A: Yes, spouses and children of H-1B employees may obtain H-4 visa or, if they are already in the United States in a different status, they may change their status to H-4.

Q: Can spouses and children of H-1B visa holders work in the US on H-4 visa?

A: No. In order to obtain work authorization, spouses and children in H-4 status must qualify independently for another visa status, which allows for work authorization. They may do so while in the United States, without the need to depart and reenter.

Q: What is Premium Processing?

A: Premium Processing is a program under which an employer may submit an additional fee of $1,225 and request that the H-1B petition be adjudicated within 14 days of submission of the request and the fee. This is particularly useful if the beneficiary needs to have the approval notice to either commence the work (for example, in case of change of status) or to obtain a visa at a U.S. Consulate abroad.