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LAW
OFFICE OF AJAY K. ARORA |
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Disclaimer: This article is not intended
to establish an attorney-client relationship. All information contained herein
is generalized. Any reliance on information contained herein is taken at your
own risk.
FREQUENTLY ASKED QUESTIONS
WHAT IS THE H-1B VISA CATEGORY?
You
have arrived at the best website for information on the H-1B visa category.
Please note that our law firm is a full-service immigration law firm; the H-1B visa
category is, however, representative of the class of immigration law services
offered by our law firm, and the visa category for which we have prepared a
FAQ. Information on additional areas of Immigration Law can be found in the Services and Fees section of our website. Please do not
hesitate to contact our law firm for any immigration matter. For viewers
conflicted about using their time in pursuit of more knowledge regarding the
H-1B nonimmigrant visa category, you may qualify if you have a job offer and
possess the equivalent of a
DOCUMENT CHECKLIST TO FILE H-1B PETITION THROUGH OUR LAW
FIRM?
In
order to properly prepare and file the Petition for a Nonimmigrant Worker (H-1B
/H-1B1) with the United States Citizenship & Immigration Services
"USCIS" we require the following information and documents. The
information required about the employer and the beneficiary is listed
separately.
Information about the employer
1.
Name of the Company
2.
Address
3.
Phone #
4.
Federal Tax ID (EIN#)
5.
Year of establishment
6.
Current # of employees
7.
Gross annual revenue/sales for the recent year (approximate figure)
8.
Name and title and email address of the person who will sign the
petition on behalf of the company
9.
Job Title offered
10.
Salary offered
11.
Brochure or website or brief description about the company
If
your employer is a non-profit organization related to or affiliated to an
institution of higher education, please enclose document verifying the same.
The
checklist for aliens who are presently in the US in nonimmigrant H-1B or L-1
status is as follows: (No Originals are required – Only Clear & Legible
Copies are required)
1.
Passport (biographic information pages & US visa page)
2.
Most recent I-94 (issued on arrival at the airport)
3.
H-1B / L-1 Approval Notices
4.
Pay stubs for the most recent months & Form W-2 for the most
recent fiscal year
5.
Degree Certificates, Transcripts, Diplomas & Credential
Evaluations, if applicable.
6.
Address in the US
7.
Telephone Number
8.
Email Address
9.
Permanent address abroad
10.
Social Security Number
11.
Resume
The
checklist for first time H-1B petitions for candidates who are presently on F-1
status is as follows: (No Originals are required – Only Clear & Legible
Copies are required)
1.
Passport (biographic information pages & US visa page)
2.
Most recent I-94 (issued on arrival at the airport)
3.
OPT Card (Front & Back)
4.
All I-20's issued by the University
5.
Degree Certificates, Transcripts, Diplomas & Credential
Evaluations, if applicable.
6.
Address in the US
7.
Telephone Number
8.
Email Address
9.
Permanent address abroad
10.
Social Security Number
11.
Resume
The
checklist for first time H-1B petitions for candidates who have a foreign
degree and are presently outside the
1.
Passport (biographic information pages)
2.
Degree Certificates, Transcripts, Diplomas & Credential
Evaluations, if applicable.
3.
Experience Letters from previous employers (the experience letter
should be on company letterhead, dated and signed. The letter
should specify dates of employment, job title and a brief description of
job duties performed)
4.
Email Address
5.
Permanent address abroad
6.
Resume
BOTTOM LINE: COSTS INVOLVED IN FILING FOR AN H-1B VISA?
The American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA") raised U.S. Citizenship & Immigration Service (USCIS) filing fees several fold.
The regular USCIS filing fee is now $320, plus $500 for “antifraud” measures. The $500 applies only for the initial H-1B petition, and not for extensions of status by the same employer. In addition, most employers are also subject to an additional $750 (if fewer than 26 employees) or $1500 (if 26 or more employees). Employers exempt from the $750 or $1500 are nonprofit research organizations or governmental research organizations, or institutions of higher education or non-profit organizations affiliated with or related to institutions of higher education, or primary or secondary education institutions. The $750 or $1500 does not apply for the second H-1B extension through the same employer. Amended petitions do not require the additional fee unless the petition has the effect of extending the nonimmigrant's status. All filing fees are payable to the USCIS and an unavoidable expense.
IS THE EMPLOYER REQUIRED TO PAY FOR FILING THE H-1B PETITION?
Yes.
Employers cannot require the H-1B nonimmigrant to reimburse or otherwise creatively compensate the employer for any part of the H-1B petition filing fee. Since the filing fee is solely the employer's burden, the USCIS will reject remittances from an H-1B beneficiary or the beneficiary's agent that accompanies the H-1B petition. A remittance from an attorney is normally accepted by the USCIS, but the most conservative course of action would be for the employer to write a check payable to the USCIS at the time of filing the petition.
The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) was enacted to increase the cap on H-1B visas to 115,000 for fiscal years (October 1 to September 30) 1999 and 2000, and 107,500 for FY 2001. The quota returned to 65,000 in FY 2002 and thereafter, the same number that existed prior to passage of the ACWIA. As of 2008, the cap is still 65,000 visas. Caps are not applicable for current H-1B nonimmigrants filing for extensions of stay, amendments of terms of current employment, change of employers (i.e., sequential employment in H-1B visa status), and concurrent employment. The same exemption from the visa cap applies to individuals being sponsored by non-profit research organization or governmental research organizations, or institutions of higher education or non-profit organizations affiliated with or related to institutions of higher education. Citizens of Chile and Singapore are given preference within the visa cap. For persons who have completed a U.S. master’s degree, there is an additional cap of 20,000 visas available on top of the regular 65,000 visa cap. The master’s degree does not have to relate to the job offered in the H-1B petition. An individual whose H-1B petition was filed initially by a cap-exempt employer will be subject to the visa cap if changing employers and the new employer is not a cap-exempt organization.
CAN I SPONSOR MYSELF FOR THE H-1B VISA CATEGORY?
You must be sponsored by a "U.S. employer." What if you are the employer in the form of a company that you establish? USCIS regulations define 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."
Since the H-1B petition must be approved prior to commencing employment, and it is difficult, although not impossible, for a "paper" company with zero employees and no income to be considered an employer capable of sponsoring an H-1B applicant, the dilemma to overcome is establishing a company with enough viability to be approved by the USCIS without technically being employed in the interim. One way to remain within the law is to establish a company with the help of other investors. The most conservative position is to be only a "passive investor" as opposed to exercising substantial decision-making power in the company. An individual cannot be accused of being employed without authorization if he or she is only a passive investor in the company that will sponsor him or her for the H-1B visa. To summarize, an individual cannot be "employed" until his or her employer petitions for and receives H-1B approval.
WHAT IS THE DIFFERENCE BETWEEN H-1B STATUS AND H-1B VISA?
A change of status is obtained if the beneficiary is in the U.S., while a visa has to be obtained from outside the U.S. For example, an individual in F-1 (student) status can change status to H-1B upon approval of the H-1B petition filed by his or her employer. The individual may commence employment immediately (as per the terms of the approval notice) without having to leave the U.S. and being issued an H-1B visa at a U.S. Consulate abroad. If the H-1B beneficiary needs to travel abroad at some point, it is necessary to obtain an H-1B stamp (visa) in the passport from a consulate abroad in order the re-enter the U.S. in H-1B status.
Conversely, an individual outside the U.S. can have an H-1B petition filed with the USCIS on his or her behalf by the employer and take the approval notice to the nearest U.S. Consulate to be issued an H-1B visa.
WHAT DOES "EMPLOYER-SPECIFIC" MEAN?
An H-1B approval notice is valid only for one specific employer. If an individual wishes to work elsewhere, the new employer must file an H-1B petition with the USCIS as well. Under the portability rules of H-1B visa status, an individual currently in H-1B visa status can commence employment with the new H-1B employer upon the filing of an H-1B petition by the new employer requesting extension of H-1B status. There is no requirement to wait until approval of the petition prior to commencing employment with the new employer.
CAN I WORK FOR MORE THAN ONE EMPLOYER?
Yes, but all employers must have filed an H-1B petition for you. Generally a person has one full-time H-1B employer and one part-time H-1B employer if he or she is working for two employers concurrently, but nothing prevents an individual from working full-time for two or more employers. See our article on Concurrent Employment.
WHAT IS THE DURATION OF H-1B VISA STATUS?
H-1B'S are initially issued for three years and can be extended for another three years, for a maximum of 6 years. The clock starts ticking from the date of arrival and not from the date of visa issuance. Moreover, it is based on time actually spent in the U.S. on H-1B status; it is not based on the validity of the visa.
Therefore,
if you spent significant amounts of time outside the U.S. during your six year
stay, it is possible to "recapture" that time by extending the six
year maximum. Please be prepared to provide evidence of periods of time spent
outside the U.S. in H-1B status if you want to apply for an extension to get
the benefit of time spent outside the
After the 6-year limit on an H-1B visa status is reached, an individual can leave the U.S. for one year and re-enter on H-1B visa status. The one year abroad does not have to be in your home country or country of last residence. Alternatively, the status may be extended beyond six years in certain circumstances, i.e., if an application for labor certification (PERM) has been filed with the Department of Labor at least one year prior to completing six years in H-1B status, or if there is an approved I-140 immigrant petition in the EB-1 to EB-3 categories prior to completion of six years in H-1B status.
CAN I WORK IN H-1B STATUS PRIOR TO APPROVAL?
Yes,
if you are “porting” H-1B status. For example, an individual currently in H-1B
status by Employer A can commence employment with Employer B upon Employer B’s
filing of an H-1B petition with the USCIS requesting extension of H-1B status.
You can continue working for up to 240 days even if your I-94 expires prior to
H-1B petition approval through Employer B.
Incidentally, when H-1B status is about to expire, an H-1B petition requesting extension of status can be filed up to 180 days prior to the expiration date noted on the I-94 attached to the H-1B approval notice (Form I-797), or the date noted on the I-94 that is issued when entering the U.S. The “last action rule” applies in determining proper validity dates when there is conflict. For example, if an individual has H-1B approval notice valid until April 30, 2008, but his or her I-94 issued at the port-of-entry when entering the U.S. from abroad, after issuance of H-1B visa at a U.S. Consulate abroad based on H-1B approval notice shows expiration of H-1B status on January 31, 2008, the individual is able to remain legally in the U.S. only until January 31, 2008.
WHAT IS THE DIFFERENCE BETWEEN A LCA AND LC?
LCA (labor condition application) is filed with the Department of Labor (DOL). It must be certified by the DOL before the H-1B petition is filed with the USCIS. It is an abbreviated procedure that results in instant certification, since it is normally filed electronically with the DOL. LC (Application for Alien Employment Certification, also known as PERM) is associated with employment-based permanent residency and is not related to the nonimmigrant H-1B visa category, although frequently a LC is filed with the DOL while a person is in H-1B status. It is a time-consuming and complex procedure.
WHAT STEPS MUST BE COMPLETED PRIOR TO FILING THE H-1B PETITION?
The
process begins with determining whether an individual has an employer willing
to sign the H-1B petition, and whether the individual will be performing work
in a specialty occupation which requires a relevant U.S. bachelor’s degree or
foreign equivalent, and whether the individual possesses the above
qualifications. An evaluation of a foreign degree must be completed by a
qualified credentials evaluator (our law firm can serve as a liaison between
you and the evaluator) equating the foreign degree, if applicable, to the U.S.
equivalent. Employment experience may be taken into account, and most
evaluators use the formula of 3 years of professional-level employment
experience equating to one year of college.
Then the “prevailing wage” must be determined. An H-1B employer is required to pay the higher of the prevailing wage for the position in the local geographical region (what similarly situated employers pay U.S. workers for the same position), or the actual wage paid to employees at the (sponsoring) company who hold similar positions. A common source of determining the prevailing wage is the state employment security agency (SESA) where the H-1B beneficiary will work. The prevailing wage data as well as other information is entered onto an application called the labor condition application (LCA).
The LCA is filed with the Department of Labor, which certifies it and returns it to the employer. The next step is to submit Form I-129 with H supplement to the USCIS, along with the certified LCA as well as information on the company and the nature and duties of the position and evidence of the beneficiary's background and education as well as evidence of maintenance of current nonimmigrant status if in the U.S. at time of filing the H-1B petition. This is more difficult than it appears. Entire careers, if not empires, have been built on study of H-1B laws, regulations, and procedures. Please contact our law firm to discuss how we will prepare the H-1B petition for the review and signature of the employer based on some simple information required about the employer. Our response to the document checklist portion of the FAQ is helpful.
WHEN SHOULD I ENCOURAGE MY EMPLOYER TO FILE THE H-1B PETITION?
It is important to begin the process early, as certain SESA's can take up to two or three weeks to determine the prevailing wage. The LCA filed with the DOL after prevailing wage determination is normally certified instantly, however. The H-1B petition filed with the USCIS may take anywhere from six weeks to several months for approval.
In addition, USCiS caps (quotas) on H-1B visas argue even more strongly on the importance of starting the process early so that there is no interruption in legal status. Individuals subject to the H-1B quota for any fiscal year (October 1 to September 30) are encouraged to file as soon as legally able to do so (April 01 requesting employment start date of October 01). For fiscal year 2009, which begins on October 01, 2008, and which allows for filing cap-subject petitions up to six months prior to the start of the fiscal year, the visa cap was reached on April 05, 2008. The USCIS gave equal consideration to cap-subject H-1B petitions received between April 01 and April 05, 2008 for fiscal year 2009, and refused to accept any further cap-subject H-1B petitions. The USCIS also instituted a random selection system since many more petitions were filed by April 05 than the available visa slots. In recent years, there is about a 50 to 60 percent probability of filing an H-1B petition within the visa cap (65,000 available visa slots in recent years) even if filing on the very first day of eligibility for the following fiscal year. For master’s degree cap, the probability of inclusion within the visa cap of 20,000 additional slots is higher, about 75%, if the petition is filed within the first five days of eligibility.
MY SIX YEARS IN H-1B STATUS ARE ABOUT TO EXPIRE. WHAT NEXT?
A
prospective immigrant to the U.S. should actively explore various immigration
procedures during the first or second year of H-1B status if he or she does not
want to leave the U.S. for one year in order to re-enter on H-1B status. A
application for alien employment certification (Labor Certification, now
commonly known as PERM) may take several months for approval after filing, and
the PERM application must be pending with the USCIS for at least one year
before six years are completed in H-1B visa status in order to extend H-1B
status beyond six years. Most foreign applicants seeking permanent residency in
the U.S. on the basis of an offer of employment require a certified PERM
application from the DOL as the first step in the employment-based green card
process.
If the PERM application is not filed in time prior to completion of six years, and an applicant’s spouse is on H-1B status as well, the applicant may be able to change status to H-4, although H-4 (dependent of H-1B status holder) does not authorize employment. Prior to 2007, the six-year limit applied to H visa status in general (whether H-1B or H-4 dependent visa status).
The
Secretary of Labor makes two findings before granting labor certification
(PERM): a) qualified U.S. workers cannot be found, at the time of filing the
application and in the area of intended employment who are able, willing, and
available to fill the position offered to the applicant; and b) employment of
the foreign applicant will not adversely affect the wages and working
conditions of similarly employed U.S. workers. An immigrant petition (Form
I-140) must be filed with the USCIS within 180 days of labor certification
(PERM).
An individual may consider changing to another nonimmigrant status, but most other nonimmigrant visa categories, such as F-1 (student) or B-1 or B-2 (business visitor or tourist) do not permit employment. Another option would be to change status to the O-1 visa category, but this nonimmigrant visa status requires an offer of employment and is suitable only for “extraordinary ability” individuals. Yet another option is to work abroad for a U.S. employer's offices overseas for one year and re-enter the U.S. on L-1 status under the multinational Manager/Executive category (L-1A) or the specialized knowledge worker category (L-1B). The L-1A category allows for filing of an immigrant petition directly, leading to a green card, without first obtaining a PERM certification from the DOL.
HOW TO BRING SPOUSE ON H-4 VISA
Please see our article on H-4 Family Members. An H-1B holder's spouse can change status if in the U.S. or the spouse may apply for the H-4 visa abroad. Requirements are the I-129H (H-1B) approval notice of the H-1B spouse, copy of Form I-129H and LCA filed by the H-1B spouse, copy of all supporting documentation filed with Form I-129H, Marriage Certificate, Birth Certificate and original passport (of spouse), letter of employment from H-1B holder's employer, notarized copy of passport, bank statement or tax returns showing enough income to support dependent spouse, recent pay stubs and W-2 (summary of annual income) of the H-1B spouse, a few wedding photographs and wedding invitation card, and visa fee. Do not submit original documents since they are unlikely to be returned, but originals should be available upon request by a Consular official. Some of the above documents are not required for change of status, but the above list is a comprehensive reference of documents that should be immediately available.
MY EMPLOYER MERGED WITH ANOTHER EMPLOYER; DO I FILE AN AMENDED PETITION?
An amended petition is required when the following changes occur: The job duties of the H-1B beneficiary change significantly to the extent that the duties are no longer similar to the position identified on the I-129 petition filed with USCIS; when the H-1B beneficiary is assigned to a location in an area of employment not listed on the original LCA; when the employer's tax identification number is changed based on a corporate restructuring such as merger, acquisition, or consolidation; when the H-1B employer merges with another company creating a third entity which will subsequently employ the beneficiary; when the H-1B beneficiary is transferred to a different legal entity within the employer's corporate structure.
Please note that an amended petition may not be required where the new corporate entity has assumed the rights and obligations of the original employer and where the terms and conditions of employment remain the same but for the identity of the employer. Acquisitions involving asset purchases must be evaluated to assure that the purchasing company has acquired all of the rights and obligations of the original employer. Please see our article on Amended H-1B Petitions for further information.
WHAT IS MY STATUS IF I AM IN OPT (F-1 STATUS) AND THE H-1B QUOTA IS REACHED?
Optional Practical Training (OPT) is a form of work authorization normally granted for one year to students after completion of their studies. The OPT enables a student to work for any employer and gain valuable work experience. It is never too early to seek out an employer willing to file the H-1B petition.
The USCIS stated that for fiscal year (FY) 1999 it will accommodate F and J visa status holders in valid status whose employers filed a timely (i.e., prior to the expiration date of their present status) H-1B petition. Petitions in this category would be adjudicated with a start date of October 1, 1999 and they (including spouse and child) would be permitted to remain in the U.S. while waiting for H-1B status to be available on October 1, 1999. However, these candidates were not permitted to work or engage in any other activity that would be in violation of their respective F and J status. The USCIS clarified that there is no requirement that the F or J visa holders should have filed for change of status prior to the cap having been reached. The above USCIS regulation applied to FY 2000 as well
OK, the above was an interesting history lesson that may have affected your parents. In 2008, the USCIS implemented “cap gap” provisions that allows an individual whose H-1B petition has been filed with employment start date of October 01, 2008, the earliest that a cap-subject petition can be approved for a fiscal year, to extend their OPT and remain in the U.S. legally even if their OPT expires prior to October 01, 2008 as long as their petition has been accepted within the visa cap. When the H-1B petition is approved with effective start date of October 01, 2008, the individual will automatically be in H-1B status and can of course continue to remain in the U.S. Moreover, it may be possible to extend OPT for 17 additional months if a student has completed a Science, Technology, Engineering, or Math degree (STEM). The 17 month extension of OPT is available for STEM majors in lieu of filing an H-1B petition.
WHAT DOCUMENTS SHOULD I TAKE WITH ME TO BE ISSUED AN H-1B ABROAD?
Please see our links to Applying for a Visa in Canada/Mexico or Applying at Other U.S. Consulates. For Canada and Mexico the applicant will receive an appointment letter with a list of documents that they should carry with them. They include the following: Appointment Letter from the Consulate; Original Approval Notice of H-1B petition (Form I-797); copy of Form I-129H and LCA; copy of all supporting documentation filed with Form I-129H; copy of degree evaluation, if any, equating foreign degree to U.S. degree; diplomas and transcripts; letter from H-1B employer stating title, salary, duration and nature of employment; employment experience letter(s) from previous employer(s), completed application form (DS-156 and DS-157); passport-size photo; visa fees; pay stubs and W-2; passport. It is a good idea to check the Consulate’s procedures prior to the appointment.
The best method to remain violation free--even if you have never actually violated status--is to keep a record of all documents related to your immigration matter. These documents may be called upon to verify maintenance of status when filing an application or petition to change status, extend status, or adjust status (end stage of "green-card" processing)
When adjusting status, it is mandatory to show that the applicant has continually maintained valid legal status throughout the entire stay in the U.S. Please note that there is a 180 day grace period accorded to employment-based cases in the first three preference categories (EB-1 to EB-3) and an exception for applications by immediate family members of U.S. citizens. There is no fine or penalty for overstays of up to 180 days; the applicant should never remain in unlawful status for more than 180 days. If he or she exceeds the 180 day limit, it may still be possible for the applicant to apply for adjustment of status in the U.S. (as opposed to consular processing) by paying a "penalty" fee of $1000 to USCIS provided the application for labor certification (now commonly known as PERM), or EB-1 to EB-3 immigrant petition, or visa petition in the case of family members, was filed prior to April 30, 2001.
SEVERAL EMPLOYERS HAVE FILED H-1B PETITIONS FOR ME. ANY PROBLEM?
No. It is perfectly legal to be sponsored by several employers and to pick and choose which employer(s) you prefer to work for. However, in these days of inadequate H-1B quotas it may be prudent to inform employers who petitioned for you to withdraw the petitions with USCIS both to avoid confusion and to open up extra H-1B slots for others. See our article on Concurrent Employment for further information. An H-1B petition for part-time employment is approvable as long as the position is a specialty occupation requiring a relevant U.S. bachelor’s degree or foreign equivalent.
HOW DO I TRAVEL WHEN MY ADJUSTMENT OF STATUS IS PENDING?
The U.S. Citizenship & Immigration Service now permits H-1 and L-1 visa holders who have applied for adjustment of status to travel without advance parole.
Adjustment of status is the last step in the process towards permanent residency. Obtaining adjustment of status may take well over one year. Prior to the implementation of the above rule, an adjustment applicant was unable to depart the U.S. temporarily without first seeking advance parole. If a person left without advance parole, the application would be deemed abandoned.
The current USCIS policy allows a nonimmigrant on H-1 or L-1 visa status in the U.S. to maintain such status while an application for permanent residency is pending. The law already permits people on H-1 and L-1 visa to maintain a “dual intent” with respect to their stay in the U.S. The bottom line is that the new rule exempts H-1 and L-1 nonimmigrants remaining in valid status with a pending adjustment of status application (as well as their dependent family members remaining in valid status) from having to obtain advance parole prior to traveling outside the United States. Such individuals can be re-admitted on the H-1 and L-1 visas (or the dependent visas).
H-1 and L-1 visa holders have the option of applying for "general" employment authorization upon applying for adjustment of status. General employment authorization allows the adjustment applicant to work for another employer. Please note that if an individual chooses to work for employers not authorized by the H-1 or L-1 visa terms, however, and thereafter wishes to travel, advance parole will be required, and the applicant would no longer be considered to be in valid H-1 or L-1 status.
WHAT IF I HAVE
OTHER QUESTIONS NOT ADDRESSED HERE?
We have attempted to address common
questions that are typically posed by our clients for the H-1B visa category.
Hopefully you have found this FAQ helpful, so please feel free to print and
openly share this document. If you would like our law firm to evaluate your
immigration matter without any obligation, please contact Ajay K. Arora here.
[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]
Ajay K. Arora, Esq., is a prominent member of the Immigration & Nationality bar in New York City and a member of the American Immigration Lawyers Association. He may be contacted at (212)268-3580.
Copyright © 1999-2009 Ajay K. Arora, Attorney-at-Law, P.C. All rights reserved.