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H-1B VISA -WORK VISA FOR PROFESSIONALS

The H-1B visa  is a non-immigrant visa that may be used to bring a worker temporarily to the United States if the employee will work in a “specialty occupation” or a professional position.

The Immigration Act of 1990 made significant changes in the employer’s obligations with respect to obtaining the H-1B work visa: the forms used to apply for the visa: and the application procedures. Be sure to consult with an attorney experienced in immigration matters to be certain that this is the appropriate visa category for your purposes.

Technician

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, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

If the applicant has a college degree or work experience and the job requires a college degree, then the applicant should be able to obtain an H-1B work visa. Spouses and children of H-1B work visa holders may enter and remain in the US in H-4 status. H-4 visa holders may attend school in the US but cannot accept employment. However, under new immigration reform guidance, H-4 dependents will be allowed to apply for work authorization.

H-1b Annual Numerical Limit “Cap” (for new H-1bs)

  • 65,000 per fiscal year (starts October 1)
  • 20,000 petitions for beneficiaries with advanced (Master’s or higher) U.S. degrees

Cap Exempt Employers:

  • Institutions of higher education
  • Non-profits affiliated or related to institutions of higher education
  • Non-profit research organizations
  • Positions with work exclusively in Guam or the Commonwealth of the Northen Mariana Islands are cap-exempt until December 31, 2014

Choose the job title carefully

The immigrant has to be careful to accept the job offer when planning to apply for H-1B  work visa.  The prospective employee’s degree and work experience shall match the job duties of the offered employment. The employer has to pay every employee a fair salary, which means the employer shall pay at least the prevailing wage.
The O*NET, occupation information network, is a system that serves as the nation’s primary source of occupational information, providing comprehensive information on key attributes and characteristics of workers and occupations.

  • One can find occupations using keywords or O*NET-SOC codes, or by browsing job families, high-growth industries, STEM disciplines, or O*NET descriptors.
  • Petitioner can use a list of his or her skills to find matching O*NET-SOC occupations.

Obtain Prevailing Wage Information

The Department of Labor Wage and Hour Division (WHD) is responsible for enforcing some of our nation’s most comprehensive federal labor laws on topics, including the minimum wage, and the prevailing wages for government service and construction contracts. Here is a list of WHD Local Offices by state: Click here.

Any source for wage determination is good as long as it is well documented.

Obtain an Approved Labor Condition Application

The employer must prepare and file a Labor Condition Application (LCA) with the Regional Office of the Department of Labor (DOL). The LCA is a form, which must be carefully prepared and posted in two conspicuous places at the work site. The form requires the employer to state the job title, location, and offered salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions, and the giving of notice.

§ 655.750 What is the validity period of the labor condition application?

(a) Validity of certified labor condition applications. A labor condition application (LCA) certified under § 655.740 is valid for the period of employment indicated by the authorized DOL official on Form ETA 9035E or ETA 9035. The validity period of an LCA will not begin before the application is certified. If the approved LCA is the initial LCA issued for the nonimmigrant, the period of authorized employment must not exceed 3 years for an LCA issued on behalf of an H-1B or H-1B1 nonimmigrant and must not exceed 2 years for an LCA issued on behalf of an E-3 nonimmigrant. If the approved LCA is for an extension of an H-1B1 it must not exceed two years. The period of authorized employment in the aggregate is based on the first date of employment and ends:
(1) In the case of an H-1B or initial H-1B1 LCA, on the latest date indicated or three years after the employment start date under the LCA, whichever comes first; or
(2) In the case of an E-3 or an H-1B1 extension LCA, on the latest date indicated or two years after the employment start date under the LCA, whichever comes first.

Apply with USCIS

Once the employer obtained LCA for prospective employee, the employee can file petition with USCIS. If the applicant is lawfully present in the United States, he or she may be able to apply for a change to H-1B status at one of two regional Service Centers of the USCIS, which processes these types of petitions. The location, of course, will depend upon the location of the U.S. employer. This process is handled entirely by mail and no appearance by the applicant is necessary. If the applicant is outside of the U.S., the application is still processed at a Service Center. When it is approved, though, notification is sent to the U.S. Consulate in the country of the applicant’s residence. There, the process is relatively straightforward to obtain the visa to enter the U.S. in H-1B status.

How Long Can the H-1B Employee Remain in the U.S.?

The H-1B work visa is a temporary visa with specific limitations on periods of stay in the United States. The initial petition may be approved for up to three years. After the initial three-year period, H-1B status may be extended for an additional three-year period.

After six years, the worker must spend one year outside the United States before he or she is entitled to re enter in H-1B work visa status. However, if the H-1B worker begins the Permanent Residence process prior to the fifth year anniversary in H-1B work visa status, the H-1B work visa status may be continuously extended in one-year increments irrespective of the six-year cap until a decision is made on the Application for Permanent Residence. H-1B status will be extended if a labor certification, I-140 or employment based adjustment of status was filed at least 365 days prior to the expiration of H-1B status.

H-1B status may also be extended beyond 6 years for beneficiaries of EB-1, EB-2, or EB-3 petitions but due to per country limitations, they are unable to file for or obtain an immigrant visa or adjustment of status. Petitioners must have an approved I-140 to qualify.

Required documentation

The following list contains items that are recommended and generally included in this type of application. Not all items may apply to your particular situation. In addition, you may have items and materials that would support your application that are not listed here. You should consult with the attorney to be certain:

  1. Job Offer
  2. Copies of University Transcripts and Diplomas
  3. Education Evaluation Report
  4. Employee’s Resume
  5. Letters of Reference from Prior Employers (if available)
  6. Copies of any prior H-1B approval notices
  7. Passport and proof of entry (if present in the U.S.)

H-1B AMENDMENTS

New or amended petition is required:

If the H-1B employee is assigned to a new work site at a different geographical area, therefore, requiring a corresponding LCA to be certified to USCIS, a petitioner has to file new petition. Further, if the terms or conditions of H-1B employment has materially changed, a petitioner has to file a new or amended petition.

Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment.

New or amended petition is NOT required:

When an employee is assigned to new location  within an “area of intended employment” or the company moved its office to a different location within the area but all other terms and conditions of employment are remained the same then a new LCA is not required.  However, the petitioner must still post the original LCA in the new work location within the same area of intended employment. So, if an employee was moved from one location in Cleveland to another location in Cleveland then petitioner is not required to file new LCA but rather has to post the previously obtained LCA at the new work location.

Short-term placements Exception:
Under certain circumstances, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the “home” worksite), without obtaining a new LCA.

 Please call Cleveland Immigration Lawyer at (212) 292-6655 to discuss your H-2B visa questions

 FAQFrequently Asked questions:

 What is the earliest day when I can start working if my H-1B is approved  for 2017 fiscal year? 

October 1, 2016.  Petition start date must October 1, 2016 because petition may not be filed  or approved earlier than 6 months before the date  of actual need for  beneficiary’s services.

Can I Work on H-1B for a Part-time job or for Multiple Jobs?

H-1 positions can be full- or part-time, and it is possible to have several H-1 jobs at one time, as long as an H-1B petition has been approved for each employer in each of the different positions. Some people have asked us whether having several part-time H-1s at one time, would cause a person to reach the H-1 limit in less than 6 years. The answer is that it is still 6 years, no matter how many jobs you hold simultaneously.

Am I barred forever if I complete 6 years on H-1B in the U.S.?
After the 6-year limit is reached, if you spend a year outside the U.S., then you can again come in on an H1B. Unlike the J1-2 year home residency requirement, the 1 year abroad does not need to be in your home country or country of last residence. If you are lucky enough to have an employer with offices in other countries, you can be transferred abroad to one of the branch offices for one year, then return to the U.S., possibly on L-1 or H1B. Or you can find other employment abroad.  Again, if you think about these issues early, you can plan ahead.

What factors determine the prevailing wage for an H-1B beneficiary?
Relevant factors are: job tile, education and work experience, job duties, job description, and contract terms.

I have been fired recently while on H-1B status. Can I remain legally in the U.S. by changing status to another non-immigrant visa category? Yes, you may apply for Change of Status to another non-immigrant visa category for which you qualify. USCIS officers have been allowed to exercise their discretion to grant you another non-immigrant status, if you apply for change of status shortly after your H-1B status is terminated, usually within 10 days after you are fired.  If you are not planning to depart the U.S., the only way to maintain legal status is to file a new petition under a new employer or change status from H-1B to other non-immigrant status, such as B-1 or B-2.

What are the fees for filing an H-1B visa? Do I have to pay them?

The employer is required to pay the filing fees associated with the H1B visa petition. The fees include:

  • Filing fee of $325
  • ACWIA fee of $750 for employers with 25 or fewer employees and $1500 for employees with more than 25 employees (some exemptions may apply for this fee)
  • $500 Fraud Prevention and Detection fee (required when an employer is sponsoring an employee for the first time)
  • Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions (additional fee applies to petitioners who employ 50+ employees in the US with more than 50% of its employees in the US on H1B or L visas; additional fee is applicable to new and change of status petitions, but not for extensions)
  • $1,225 Premium Processing Fee (optional) Attorney Fee $1800-$2000 depending on case

What is the Labor Condition Application (LCA)?

Not to be confused with the Labor Certification Application used in the green card process, the Labor Condition Application is an integral part of obtaining an H1B visa. The Immigration Act of 1990 requires that the H1B petitioner file an LCA with the Department of Labor prior to filing the H1B petition. The qualified US employer must indicate the following on the LCA in reference to the H1B employee:

  • Job title
  • Actual salary (or salary range)
  • Occupational code
  • That the employer is offering at least the prevailing wage
  • Source of the prevailing wage
  • That the alien will be paid at least the prevailing wage or actual wage, whichever is higher for the specific position
  • That there is no strike or lockout in the occupation at the place of employment
  • That it has given notice of the filing to employees
  • That working conditions will not adversely affect other workers similarly employ.

What is premium processing?

The Premium Processing service offered by USCIS offers American employers faster processing of their petitions for H1B visas and certain other forms of immigration status. The US employer pays a $1,225 premium with a guarantee from the USCIS that if the petition is not processed within 15 calendar days, the premium will be refunded.

Do I have to work all the time to remain in status?

No. The USCIS considers that holders of H-1B visas remain in status as long as the employee/employer relationship continues to exist. As a result, H-1B workers may work part-time (as long as there is an approved amended I-797), as well as full time, and may go on vacation or sick leave, or maternity/paternity leave, so long as the employee/employer relationship is considered intact.

How many H-1Bs are available every year?

Since the fiscal year 2004, the cap for new H1B visas has been 65,000 per fiscal year. The first 20,000 petitions filed on behalf of beneficiaries who hold a US Master’s Degree or higher are exempt from this cap.

6,800 of those 65,000 are reserved for the H1B1 program under terms of the US-Chile and US-Singapore Free Trade Agreements.

My PERM is approved (filed in EB-3) and my 6 year validity has been maxed out. Currently I have a 1 year extension. Is it possible to switch the employer? Or, should I wait until I-140 is approved?

Better to wait until the I-140 is approved. You will be able to keep extending your H-1B and you will be able to retain your priority date.

 Can a US H-1B visa holder work from home in Canada?

Your work location is specified on your H-1B petition. It is not permissible to work in Canada.

If H-1B valid till December 2018  and extension was filed, will there be any issues if I travel outside USA while the extension is in process, can I enter USA on old H-1B Visa as it is still valid?

You can reenter on your old still valid visa, but if you travel outside the U.S. while your extension is pending, you will be abandoning your application.

What countries issue TN visas?

Mexico and Canada. There is no LCA or prevailing wage requirements, but there is an educational and experience requirement. No I-129 needs to be filed. No numerical quota. The prospective employee should apply at the border.

What is the proper procedure is on admitting someone in a valid work visa status (i.e. H-1B, L-1) when that individual’s visa stamp is set to expire imminently (i.e. within a matter of days), yet the underlying petition on which they are seeking admission is not set to expire until far into the future (i.e. a year or two)?

The Visa only needs to be valid at the time of entry and is not a factor in determining length of admission.

What documents are required for an admission?

  • Passport has to be valid for 6 months beyond admission date, unless exempt.
  • Nonimmigrant visa (H-1B), unless exempt.
  • Approved I-129 petition. An individual may present Form I-797, Notice of Action, or the visa may be annotated with approval information by the consular officer.
  • An individual can seek an admission 10 days prior to the validity date of petition.

How can I transfer to a different company that filed for H-1B on my behalf. What is H-1B portability ?

H-1B worker can start working for his new employer as soon as H-1B petition is filed and accepted by USCIS. Petition has to be bona fide and H-1B employee must be in a valid status.

My H-1B Visa and petition and I-794 are getting expired by September 30  which is filed by employer A and employer B is willing to file for transfer but it will be delayed until November.  Can my new Employer apply for transfer even after the visa expires?

Yes, but you will either need to depart the US and wait for the approval or you will need to have another status for the intervening time period. Probably will be simpler and easier to depart and return after approval.

How much time does it take to transfer H-1B status from one company to another?

Transfers from one H1b company to another is the same as filing a new  H1b petition. It takes less than 60 days and one can work immediately on  proof of filing – and most new employers these days are willing to file  the transfer (it’s really an extension) under ‘premium processing’ so  the adjudication and approval takes just a few days after filing

If an H-1 holder (cap subject) completed an initial 3 years of stay in the U.S. then stayed more than 3 years abroad, is he/she still eligible for a petition for remaining 3 years of cap subject H-1b? Is there any time limit for a petition from initial approved period?

One will only remain “cap exempt” for 6 years maximum from the time your H-1B is first issued. If more than 6 years have passed since one was first admitted into H-1B status the individual is  now no longer “cap exempt” and he or she is  now again subject to the numerical cap.

Can someone who worked on an H-1B for 10 years and contributed to social security taxes will get social security benefits after retirement even though he/she doesn’t get a Green Card or citizenship?

No, you do not need to be a US citizen for a certain country list. International Social Security agreements, often called “Totalization agreements,” have two main purposes. First, they eliminate dual Social Security taxation, the situation that occurs when a worker from one country works in another country and is required to pay Social Security taxes to both countries on the same earnings. Second, the agreements help fill gaps in benefit protection for workers who have divided their careers between the United States and another country.

 

On April 12, 2016 USCIS Twitter  answered questions about immigration benefits and other services that USCIS provides. USCIS released all the questions and answers that we tweeted.

Q1: Do I need to renew passport before filing H-1extension if extension is filled before passport expiration?

A1: No, unless it’s expiring soon. You’ll need a valid passport to travel.

Q2: What is the remedy for a delayed case (beyond 90days for renewal of EAD) whose employer gave ultimatum?

A2: If your case is outside of the standard processing time, submit an inquiry at: https://t.co/OxEx4ZzB9l

Q3: I’m in the US on a TN visa, I applied for H-1B using premium processing. Can I travel abroad while H1-B is pending?

A3: Even if your TN visa is valid, you cannot travel while your H1-B petition is pending.

Q4: What’s the average processing time for returned petitions 221(g) at Vermont Service Center?

A4: Petition processing times vary. Check https://t.co/8CrnxdJwNa or call our Natl Customer Service Center 800-375-5283.

Q5: What is the current waiting time for an H1-B transfer?

A5: Please see the following link for current processing times: https://t.co/8CrnxdrVVC

Q6: Can we use AP from pending i-485 for travel while still on h1b? Does it invalidate my H-1B spouse H-4?

A6: Yes, H-1B & H-4 can travel abroad, pending I-485. See I-131 instructions page 1, https://t.co/ObREWoNoCs

Q7: I finished 8 years on H-1B, if I go back, can I apply H1 extension from India based on I-140 approval?

A7: Please see https://t.co/R0WR3joN1E for more information on H-1B extensions.

Q8: When is the lottery date?

A8: Last year it opened October 1, please check this page for updates https://t.co/GnStnjt353

Q9: When can we expect May 2016 Visa bulletin update? Usually it gets updated 1st week of every month.

A9: Please see the Department of State website for the most recent visa bulletin https://t.co/iU8sqP57l3

Q10: Once my H-1B application picked in lottery and gets approved, Can i do international travel?

A10: After approval, you need a valid visa to travel.

Q11: How do I correct a misspelled name on a USCIS document? Can a name be too long for a USCIS doc or form?

A11: If you need to make any corrections or changes to submitted USCIS forms, including name changes, call 1-800-375-5283

Q12 When I can expect the results of regular processing?

A12:  For processing times of specific forms and locations, see https://t.co/8CrnxdrVVC. Have receipt number ready.

Q13: It says in MyCaseStatus my employment combo card was “delivered” but I did not receive anything.

A13: If your card is not delivered, you can report it by submitting an e-Request here: https://t.co/PDR4Q8chJG

Q14: What process should be taken for children above 21 for immigrant visa having the acceptance when they were below 21?

A14: Check this page for age and time requirements: https://t.co/yFYF0lQW63

Q15: I have sent opt extension packet w/ employer updated i-20 instead of opt extension request i-20. What should I do?

A15: Send copy of correct I-20 w/receipt notice to address on I-797.https://t.co/j53wK4bsCf

Q16: My RFE Documents was received by Vermont service center. When can I expect a result from USCIS on my case?

A16: Processing times for RFE reviews are usually 60-90 days. File E-request if not received   https://t.co/OxEx4ZRcxV

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