ANDREW DUTTON, ESQ., P.C.
H-1B WORK VISA

 

What is the H-1B?

Admission in H-1B status gives a foreign national employee permission to work in the United States.  That permission to work is limited to the American employer which has sponsored the foreign national employee.  Permission to work is also limited in time - - up to three years for any one petition and usually up to six years in total. 

H-1B status is not open to all foreign nationals who have a job offer.  It encompasses many vocations and professions that could be termed "specialty occupations."

  As such, H-1B status is best suited to professionals, such as: attorneys, engineers, doctors, I.T. workers, accountants or educators.  H-1B status is a good way in which foreign professionals can work in the United States for a limited period of time.  It also is the usual way in which they can seek permission to work while they seek to immigrate.

Minimum Qualification Requirements for H-1B Status

These specialty occupations must require a successful job applicant to possess at least a bachelor's degree or its equivalent in a particular field.  Typical H-1B jobs are accountants, architects, auditors, computer programmers, computer software engineers, computer systems analysts, database administrators, dentists, engineers, financial analysts, general managers, lawyers, medical technologists, physical therapists, physicians, professors, researchers, scientists, social workers, teachers and veterinarians.

Qualifications for the Job Applicant

To qualify, an applicant generally must possess a bachelor's degree from a U.S. university (or its equivalent) in the field in which he or she intends to work, and a job offer from a U.S. employer in that field.  Usually, educational credentials evaluations are used to determine the equivalency of foreign degrees.

Occasionally, significant and relevant work experience may provide a substitute for a bachelor's degree. However this must be evaluated on a case-by-case basis - and, in any event, the typical entry requirements for the position must be at least a bachelor's degree in a particular field.

However, if the state where the H-1B worker will be employed requires a state license, the H-1B worker must possess that license. Foreign medical graduates will need to possess a medical degree, be E.C.F.M.G.-certified and have passed all three steps of the U.S.M.L.E. before being eligible for H-1B status. Foreign physical therapists will need to have obtained a VisaScreen Certificate and may require a state license.

 

The Application Process

In most cases, the H-1B application process takes the form of three distinct stages: (1) the Labor Condition Application ("LCA"); (2) the H-1B Petition; and (3) the Visa Application/Change of Status Application/Extension of Stay Application.

(1) The LCA

In order to begin the application process, the sponsoring employer must first file a document called a “Labor Condition Application” ("LCA") with the U.S. Department of Labor.  Among other things, this process ensures that the foreign national employee will be paid the proper wage and treated like other similarly situated U.S. workers.  More information on the LCA employer attestations are available on another page of this website. 

There is no filing fee, and the LCA is normally approved ("certified") within seven to 10 business days via electronic filing.  The certified LCA should be signed and a copy should be included with the H-1B petition. 

The validity period of the H-1B petition cannot exceed that of the certified LCA.  The LCA can be filed up to six months before the anticipated H-1B employment start date.

(a) LCA Attestations

In filing the LCA, the sponsoring employer is making several important attestations:

(i) Prevailing/Actual Wage

The sponsoring employer must agree to pay the foreign national employee either at least 100% of the "prevailing wage" (the typical wage for that type of job in that geographical area of employment) or the "actual wage" (the typical wage within the sponsoring employer's business for the type of job offered to the foreign national employee), whichever is higher.

The prevailing wage can be calculated in several different ways: (1) through a collective bargaining agreement; (2) through a prevailing wage determination issued by the state workforce agency; or (3) through another source, such as the OES survey, an employer survey, or a survey by a third party organization (e.g., AAMC, Sullivan Cotter, etc.). Prevailing wage information from the Department of Labor's Online Wage Library (which consists of OES survey data) can be found via this link:

www.flcdatacenter.com

(ii) Notice

In the absence of a bargaining representative, notice concerning the filing of the labor condition application should be posted conspicuously for 10 days at the place of employment in the 30 day period prior to LCA filing.

Where there is a bargaining representative, notice instead must be provided to that representative.

(iii) Strikes, Labor Disputes

The sponsoring employer also must attest that there are no strikes or labor disputes at the place of intended employment for the H-1B worker, and that the working conditions of the H-1B worker will not adversely affect those of other similarly employed workers.

(iv) H-1B Dependency

Where many H-1B workers have been employed already by the sponsoring employer, such that the sponsoring employer could be adjudged as being "H-1B dependent," that sponsoring employer will need to make additional attestations. The sponsoring employer must attest that it has not displaced, and will not displace, U.S. workers within the 90 day period prior to, and in the 90 day period after, the filing of the H-1B petition. The sponsoring employer also must attest that it has made a good faith attempt to recruit U.S. workers for the position that it has offered to the foreign national employee.

(v) Maintenance of Public Disclosure/Public Access File

The employer must make available at its offices for public examination a copy of the LCA and necessary supporting documentation regarding the H-1B worker and other similarly situated employees. That public disclosure/public access file must be preserved for at least one year after the H-1B worker's H-1B employment has come to an end. 

(2) The H-1B Petition

Once the LCA has been certified, the employer must then file an H-1B petition with the U.S.C.I.S.  The H-1B petition is used to establish that both the job and the H-1B worker meet the requirements of this status.  

(a) Employer Obligations

In addition to the obligations stated within the LCA attestations, the H-1B employer also has certain additional responsibilities and must meet certain criteria.

(i) Nature of Employer; Employer-Employee Relationship

In order to be considered an “employer” for these purposes, the petitioning business entity must be a person, firm, corporation, contractor, or other association or organization in the United States which: (1) engages a person to work in the United States; (2) has an employer-employer relationship, as indicated by the fact that it may hire, pay, fire, supervise and otherwise control the work of any such employee; and (3) has an Internal Revenue Service Tax Identification Number.

In other words, the H-1B classification is not suitable for the self-employed or for freelance "consultants".

(ii) "Benching" Prohibition

H-1B employers are obliged to provide work and pay the H-1B worker in accordance with the terms and conditions of the approved petition. Failure to do so could make the employer liable to face certain sanctions, such as the payment of backpay.

(iii) Payment of Cost of Return Transportation

One of the terms of the petition is that the H-1B employer must undertake to provide the H-1B worker with return transportation overseas, should he or she be dismissed before the end of his or her H-1B employment. Thus, if an Indian computer professional in H-1B status is dismissed by her sponsoring U.S. software company, that company is obliged to pay for an airplane ticket for the software professional back to her last place of foreign residence.

However, that undertaking will not apply where the H-1B worker voluntarily terminates that employment - or where the petition's validity period ends and no new petition is filed to extend it. 

(b) The H-1B Cap

The annual limitation on the number of H-1B visas is known as "the H-1B Cap," and the vast majority of new H-1B cases are subject to it.  The H-1B Cap works on a Fiscal Year basis, and the Fiscal Year runs from October 1 to September 30.  Once the Cap has been reached, no more H-1B petitions will be accepted until it is time to apply for the next Fiscal Year.  Please note that there are 58,200 H-1Bs available each year to those who possess at least a bachelor's degree or its equivalent.  An additional 20,000 H-1Bs also are available to those who possess at least a master's degree from a U.S. institution of higher education that is related to their prospective H-1B employment.  Finally, 6,800 H-1B1 visas are available each year for Chilean and Singaporean citizens under the Free Trade Agreements that the United States has signed with these countries. 

Fortunately, not all H-1B petitions are subject to the H-1B Cap.  Foreign national workers who are not subject to the H-1B Cap can apply for, and obtain, employment authorization in H-1B status at any time of the year without waiting for the next fiscal year's allocation of new H-1Bs to become available.  The H-1B Cap does not apply to those foreign national workers who will be working for a non profit research organization, a government research organization, or a non profit organization affiliated or related to an institution of higher education.   Furthermore, the H-1B Cap does not apply to those foreign national workers who have already been admitted to the United States in H-1B status who are applying for: (1) an H-1B status renewal with their existing employer; (2) an H-1B transfers to a new sponsoring H-1B employer; (3) petitions for additional, concurrent H-1B employment with a second or third employer (i.e., further H-1B employment in addition to the authorized H-1B employment granted to the original sponsoring employer); or (4) where an amended petition has been filed.

(c) Petition Validity Period

All LCAs and H-1B petitions are valid for up to an initial period of three years (although less time than three years can be requested).  They can be renewed for a further three years.  There is an overall maximum period of six years of stay for H-1B workers.  Recent periods of time spent by the H-1B worker in H or L-1 status (not including dependent status) also can be counted towards that six year limit.  However, time spent physically outside the United States during the six years of H-1B stay can be "recaptured" and added on to extend the six year limit.  After the six year limit has been reached, and unless he or she falls into one of the exceptions stated below, the H-1B worker must leave the country for one calendar year before once again applying for a period of H-1B stay.  There are two exceptions to the six year limit - (1) where an application for employment-based immigration has been pending for at least 365 days, or (2) where an employment-based immigration applicant is unable to adjust status because an immigrant visa is not immediately available.  In those situations, the foreign national employee need not leave the United States after the maximum six years in this status, and may instead apply to extend H-1B status while the employment-based immigration application remains pending.

(d) H-1B Petition Filing Fees

There are several possible fee components that are payable when filing an H-1B petition.  With the possible exception of the optional premium processing fee, all filing fees generally should be paid by the employer.  It is possible, under certain limited circumstances, for third parties (i.e., people or organizations other than the sponsored employee) to donate the filing fees on behalf of the employer.

(i) The Base Filing Fee

The base H-1B filing fee is $460.  It must be filed by separate check or order with all H-1B petitions.

(ii) The ACWIA/Training Fee

As a result of the H-1B Visa Reform Act, most H-1B employers will need to pay an additional "training fee" over and above the $460 H-1B base fee.  This additional fee also is known as the "ACWIA fee," after the acronym of the law that first brought it into effect.

For sponsoring employers with 25 or fewer full-time employees, this fee will be $750; for sponsoring employers with more than 25 full-time employees, this fee will be $1,500.

Primary or secondary institutions, institutions of higher education and their affiliated nonprofit entities, nonprofit research institutions, governmental institutions, and nonprofit institutions offering clinical medical training will be exempt from this additional training fee, as will applicants who are making a second or subsequent H-1B extension.  These exempt H-1B employers will only need to file the base H-1B filing fee of $460 and, if applicable, the H-1B fraud prevention and detection fee.

(iii) The Fraud Prevention and Detection Fee

Following the passage of the H-1B Visa Reform Act, there is an additional $500 "fraud prevention and detection fee."  This fee is imposed upon first time H-1B petitions, and H-1B petitions where an H-1B worker is filing to change his or her H-1B employer.  This fee is payable in addition to the H-1B base fee and (where applicable) the ACWIA/training fee.  The fraud prevention and detection fee is not applicable to H-1B extensions with the same employer.

(iv) Premium Processing

For an additional, optional fee payment of $1,225, the H-1B employer can request the "premium processing" of an H-1B petition.  This means that the H-1B petition must be processed and adjudicated within 15 days of the receipt of the premium processing request.

While the premium processing service is certainly more expensive, it does give applicants peace of mind and more control over their life plans with its ability to provide them with a quicker decision from the U.S.C.I.S.  That said, premium processing does not guarantee a quicker approval: a denial, notice of intent to deny or a request for evidence also might be issued within that timeframe.  Nor does premium processing make an approval of an H-1B petition more probable than through regular processing.

(v) H-4 Change of Status/Extension of Stay Applicants

Any application for a change of status or extension of stay for an H-4 dependent (or dependents) that is filed with, or subsequent to, the H-1B petition now has a separate and additional filing fee of $370. 

(3) The Visa Application/Change of Status/Extension of Stay

Please note that the approval of an H-1B petition does not automatically carry with it permission for an H-1B worker to remain in the United States or to commence employment for the sponsoring employer.  Normally, after the approval of the H-1B petition by the U.S.C.I.S., the third and final stage is the foreign national employee’s application for a visa at the U.S. Embassy or Consulate.  This is certainly the case for H-1B sponsored employees who reside outside the United States.

(a) Visa Application

A "visa" is a travel document that is issued by a U.S. Embassy or Consulate. An H-1B visa is issued to those visa applicants who have a certified labor condition application and approved H-1B petition. It enables the foreign national worker to travel to the United States and seek admission at the border or port of entry in H-1B status.

Canadian citizens, who seek admission into the United States in H-1B status from the western hemisphere never require an H-1B visa, and can instead apply for admission at the border or port of entry with evidence of a certified labor condition application and H-1B petition approval.

(i) Situations Where a Visa is Required

An H-1B visa is required where:

1. The H-1B worker has a certified labor condition application and approved H-1B petition, but is physically outside the United States;

2. The H-1B worker is in the United States, but his or her change of status has been denied due to a gap in status or other status violation;

3. The H-1B worker is in the United States, but his or her extension of stay application has been denied due to a gap in status or other status violation.

(ii) Situations Where is a Visa is Not Required

An H-1B visa is not required where:

1. The H-1B worker is physically in the United States and successfully obtains a change of status;

2. The H-1B worker is physically in the United States and successfully obtains an extension of stay.

These categories of H-1B workers are permitted to remain in the United States until the end date on their new forms I-94. However, should they wish to travel outside the United States during their period of H-1B stay, they will need to obtain an H-1B visa (if they do not already have one) to return to the United States in H-1B status and resume their H-1B employment.

(iii) Change of Employer; Validity of Previous Visa

Please note, however, that if a previous H-1B visa for a previous employment remains valid, that can be used for travel back into the United States instead of getting a new H-1B visa. Nevertheless, if that course of action is to be followed, the foreign national worker should bring the new H-1B approval notice on the trip to show to the immigration officer upon returning to the United States - if that does not happen, the immigration officer probably only will allow the foreign national worker to remain for the validity period of the visa (which may be less time than was approved under the most recent petition).

(iv) Visa Application Process: Where to Apply

It usually is easier for an H-1B worker to apply for an H-1B visa in his or her home country, not least because of the security checks that must be conducted before a visa will be issued. Some H-1B workers must apply for a visa in their home country, where they have violated the terms and conditions of a previous visa.

However, some U.S. consular posts (notably, those in Canada and Mexico), do permit so-called "third country nationals" (i.e., citizens of countries other than the one where the consular post is located) to apply there for an H-1B visa. Nevertheless, care should be taken to ensure that the immigration requirements of the country where the consular post is located are met before an H-1B visa interview appointment is made. For example, citizens of India, who wish to apply for an H-1B visa at a U.S. consular post in Canada may need to obtain a Canadian temporary resident visa, in order to be able to enter Canada and attend their H-1B visa interview.

 

(v) Visa Application Process: Local Procedures

Each U.S. consular post has its own policies and procedures, which range from whether an interview appointment is necessary to what documents should be brought along to that interview. For more information, here is a link to the websites of all U.S. consular posts:

http://usembassy.state.gov/

 

(b) Change of Status

A "change of status" application allows foreign nationals who are physically in the United States and in another temporary status to switch to H-1B status from another status without having to leave the United States to get a new H-1B visa. 

While changing status allows the foreign national to switch from another status to H-1B status and remain in the United States, it does not automatically and at the same time lead to the issuance of an H-1B visa or other travel permit. If the H-1B petition and the change of status application is approved, and the foreign national worker wants to travel overseas for a short period of time after commencing employment in H-1B status, he or she will need to apply for a new H-1B visa, in order to seek readmission to the United States and continue with his or her H-1B employment. The visa is essentially a travel document that allows an H-1B worker to come back into the country, which must be applied for separately at a U.S. Embassy or Consulate abroad. 

(i) Ineligibility for Change of Status

Some foreign nationals (e.g., those who are here in K status), are automatically ineligible to apply for a change of status.  In addition, those who have fallen out of status before filing their H-1B petition and change of status application also usually will not be permitted to change status.  They will need to leave the United States, in order to apply for H-1B visas.

(ii) Filing Too Soon for a Change of Status

Moreover, change of status requests that are filed within 30 to 60 days of a foreign national's arrival in another status often are viewed skeptically and may well be denied.

(iii) Travel During Pending Change of Status Application

If a change of status applicant travels outside the United States while his or her change of status application is being processed, that normally will cause the abandonment (and, thus, denial) of the change of status application.

(iv) Effect of Denial of Change of Status

If the H-1B petition is approved, but the change of status application is denied, the foreign national worker must leave the United States as soon as possible, and apply for a new H-1B visa at a U.S. consular post overseas, in order to seek readmission to the United States and commence H-1B employment.

(c) Extension of Stay

H-1B petitions are valid for up to three years.  As the end of the period of H-1B stay is approaching, the H-1B worker might be eligible to file a new petition, in order to extend his or her period of H-1B stay.

There are two basic types of H-1B extensions: (1) extensions filed with the same employer that filed a previous H-1B petition; and (2) extensions filed as a result of a change of employer (the so-called "H-1B transfer").  The same basic rules apply to both types of extensions.

(i) Qualifications for an Extension of Stay

In order to qualify for an extension of stay, the foreign national worker must simply have remained in lawful status.  An H-1B worker remains in status by continuing to work for his or her sponsoring employer in accordance with the terms and conditions of the approved H-1B petition.

The extension of stay should be filed before the previous period of stay expires; however, the extension does not need to be approved before the end of the previous period of stay, as the H-1B worker would be permitted to remain in the United States and to work for the sponsoring employer throughout the period that a timely filed extension remains pending.

Finally, in order to file for an extension, there must be something to extend - there must be time left under the six year limit, or under an exception to that limit.

(ii) Consequences of Falling Out of Status

It is sometimes possible for brief periods out of status to be forgiven by the U.S.C.I.S. In the H-1B context, this will usually happen where a worker has been laid off by one H-1B employer, only to find employment with another H-1B employer. Usually, breaks in status of 30 days or less are forgiven.

If the U.S.C.I.S. will not forgive the time out of status, the H-1B petition will probably be approved, but the foreign national worker will need to travel overseas, obtain a new H-1B visa, and return to the United States before being able to continue his or her H-1B employment.

(iii) Effect of the Approval of an Extension of Stay

While an extension of stay allows the foreign national worker to in the United States in H-1B status for a longer period of time, it does not automatically and at the same time lead to the issuance of an H-1B visa or other travel permit.

If the H-1B petition and the extension of stay application is approved, and the foreign national worker subsequently wants to travel overseas, he or she will need to apply for a new H-1B visa, in order to seek readmission to the United States and continue with his or her H-1B employment.  The visa is essentially a travel document that allows an H-1B worker to come back into the country, which must be applied for separately at a U.S. Embassy or Consulate abroad. 

For those who are already in H-1B status, and who have obtained an extension of stay, it used to be the case that the foreign national worker could simply apply to the Department of State in the United States to obtain a new H-1B visa. However, that procedure ceased to exist as of July 2004, and all those who seek visa revalidation will need to travel overseas to the nearest U.S. Embassy or Consulate that will accept their application. 

(4) Specific H-1B Issues

(a) Change of Employer: H-1B Transfer

It is possible for H-1B workers to change to a new H-1B sponsoring employer while remaining in the United States. Rather than concurrent, multiple H-1B jobs with two or more separate employers, an H-1B transfer represents a consecutive employment, where an H-1B worker is able to move from one H-1B job to another H-1B job.

(i) Application Procedure for H-1B Transfer

The application procedure and requirements for an H-1B transfer is essentially the same as for a first time H-1B employment - except that the H-1B worker will be requesting an extension of stay with the H-1B petition and not normally a new visa or a change of status.  Another potential difference is something that is commonly referred to as H-1B "portability."

(ii) H-1B "Portability"

One of the perks of filing an H-1B transfer is that the new employment can begin before the new H-1B petition and the extension of stay application even are approved by the U.S.C.I.S.

Provided that the worker has been lawfully admitted in H-1B status, has never worked without authorization, and has filed a "non frivolous" H-1B petition for a new H-1B employment, he or she can commence that new employment after filing the new H-1B petition. This "portable" H-1B employment authorization continues until a decision is made by the U.S.C.I.S. on the new H-1B petition.

Although permission to work for the new sponsoring employer comes from the filing of the new H-1B petition, most employers will want to wait until the U.S.C.I.S. issues a receipt notice to confirm filing before allowing the H-1B worker to commence employment. Through regular processing, it could take two to three weeks for such a notice to be issued.

(iii) Portability is Not Mandatory

Nevertheless, an H-1B employer or H-1B worker is not obliged to start work after the petition is filed and while it is pending; they could elect to move the start date until such time as the H-1B petition probably will be approved, or they could request premium processing, to try to obtain a quick approval.

(b) Amended Petition

Sometimes, circumstances arise which necessitate the filing of an amended LCA and H-1B petition.  An amended petition must be filed where there has been a material change in the terms and conditions of employment.  Although "material changes" are not defined within the law, they normally include significant changes to job duties, requirements, and salary from those stated in a previously approved H-1B petition.

(c) Concurrent Petition

A new H-1B petition must be filed with the U.S.C.I.S. each time the beneficiary gets a qualifying job with a new employer.  This is because the H-1B is not a general "work permit," which permits foreign nationals to work for any employer.  Permission to work in this classification is limited to the employer who sponsors the foreign national.

It is, however, possible for foreign national employees to be the beneficiary of more than one application, thereby enabling them to work for each sponsoring employer.  Thus, an H-1B worker could have two part-time jobs or a full-time and a part-time job.  Nevertheless, each position offered and the worker's qualifications for it must still meet the requirements for H-1B status. For example, an H-1B engineer cannot obtain an additional, part-time H-1B employment as a waiter in a coffee shop - - but he could obtain an additional, part-time H-1B employment as an engineer with a separate H-1B employer. 

(d) Resident Physicians

Foreign medical graduates who seek to undertake a residency or fellowship at a hospital in the United States usually are given two choices: the J-1 exchange visitor status or H-1B status. H-1B status is preferable because (unlike the J-1), it does not come with a requirement for the doctor to return to his/her home country for two years after their period of stay.

In order to qualify for H-1B status, foreign medical graduates will need to possess a medical degree, be E.C.F.M.G.-certified and have passed all three steps of the U.S.M.L.E.

Moreover, if the state where the residency or fellowship is to be conducted requires foreign medical graduates to possess a license, the doctors concerned usually must possess the requisite license before being eligible for H-1B petition approval. Some states do not require licensure during a residency at a public hospital (such as New York), whereas some require licensure for beyond the first year of residency (such as New Jersey), while other states (such as Michigan, Ohio and Pennsylvania) require licensure for the entire residency. Most (if not all) of the states that require medical licensure during a residency or fellowship program issue a one year "educational limited license," which is renewable on an annual basis for each year of the residency.

This educational limited license can have an unforseen complication, as there is a U.S.C.I.S. regulation that limits the approval of the H-1B petition to the validity period of the license or one year (whichever is longer) where there is an educationally limited license. Thus, even if the hospital is willing to request three years on the petition, the U.S.C.I.S. might limit approval to just one year because of this regulation. Moreover, there is great inconsistency in the application of this regulation: many petitions for foreign medical graduates with educationally limited licenses are approved for more than one year regardless of this regulation, and it is impossible to predict in advance which petitions will be approved for more than one year. For those foreign medical graduates whose petition is approved for just one year, their hospital will need to file an H-1B extension later on to provide status for the remainder of the training program. Most medical residency or fellowship programs are exempt from the H-1B Cap. This is because the sponsoring employer usually is either a medical school or a nonprofit hospital that is affiliated to a medical school. 

 

Disclaimer:  The information provided by this website is general in nature.  Viewing this website and acting upon its content does not lead to the creation of an attorney-client relationship absent a signed retainer agreement with an attorney to that effect, nor does it imply that Mr. Dutton has engaged in the unauthorized practice of law in any jurisdiction.