H-1B SPECIALTY OCCUPATIONS VISA

1. Who is eligible for an H-1B visa?
2. Procedure
3. H-1B visa important issues and conditions
4. Recent changes affecting H-1B employment
5. Important USCIS Memorandums and Regulations About H-1B Visa

1. Who is eligible for an H-1B visa?

The H-1B visa is the most used visa category for work authorization in the US . The H-1B visa is available to those aliens coming temporarily to the US to perform a specialty occupation. In order to qualify, the applicant must have a minimum of a US bachelor's degree or its equivalent. Examples of "specialty occupations” are: medicine and health, education, business specialties, accounting, law, mathematics, theology, social sciences, architecture, engineering, arts. In order to obtain an H-1B status, the worker requires a sponsoring employer.

2. Procedure

Processing an H-1B petition involves completing the following steps, administered by the US Department of Labor (DOL), the United States Citizenship and Immigration Service (USCIS) and the Department of State (DOS), Consular Service:

• Attestation of the Labor Condition Application (LCA): our firm assists the employer in the filing of an LCA with the DOL. The LCA must attest to several items, which include payment of the local area prevailing wage or the actual wage paid to similarly employed US workers for the position and the working conditions offered. In determining level of the prevailing wage, many factors are considered: experience, qualifications, education, job responsibility among others. Also, of critical importance is the place of employment, since special rules apply if the worker will be in the future assigned to a workplace not listed on the LCA.
• Petition to the USCIS: the petition is filed in Forms I-129 and I-129W and with a filing fee unless specifically exempt by law. In this Phase, the USCIS determines whether the position is in fact a "specialty occupation" and scrutinizes the foreign worker's education, experience, and training in order to determine eligibility. The processing time varies depending on the USCIS Service Center where it has been filed. USCIS offers "premium processing" which will guarantee the adjudication time to be within 15 calendar days with payment of additional fee of $1,000. Once the H-1B petition is approved, the worker may apply for a change of status (if in the US ) or go through consular processing.
• Consular Processing: H-1B beneficiaries already present in the US do not need visas until they travel abroad and return to the US . This visa may generally be obtained at any US Consulate. Click here if you need to schedule a visa appointment at the US Consulate in Mexico or Canada .

3. H-1B visa important issues and conditions

• Work authorization for beneficiaries of an H-1B visa classification is employer specific. H-1B aliens can only work for the employer mentioned in the petition.
• Multiple employers require multiple petitions.
• H-1B status terminates with H-1B employment. Employer is responsible for travel costs for employee if the later is terminated before the approved period of employment.
• An individual can stay for a maximum of six years in this category. Following the 6 year time period, the employee must return for one year to their home country before filing a new petition. This time limitation can be extended in one year increments only when a labor certification or a green card petition has been filed before the end of the 5 th year on H-1B status.
• H-1B dependents (H-4's) may not have working authorization.
• This visa is also subject to an annual cap. For the year 2005, the annual cap of 65,000 visas was reached the first day of the fiscal year. The annual cap for the Y2006 was reached in August 2005, two months before the beginning of the Y2006 fiscal year which starts on October 1 st, 2005 . During the fiscal year of 2007, the annual cap was reached on June 2006, three months before the first day of the fiscal year, in October 1st, 2006.
• One of the benefits of the H-1B visa is to be considered by the law as a "dual intent" category (as well as L and E visas). This means that an H-1B worker can engage in temporary employment while seeking lawful permanent resident without affecting the H-1B status.
• Some H-1B petitioners are exempt from the annual cap, like institutions of higher education, nonprofit research or government research organizations and physicians seeking change of status from J-1 to H-1B for those aliens who received waivers of the 2 years foreign residency requirement.
• Exceptions to maximum H-1B stay of 6 years:
  • In cases of " lengthy adjudication process", the USCIS grants extensions, in one-year increments, when the H-1B beneficiary has filed an employment based petition (EB visa) or an adjustment of status application, and over 365 days have elapsed since the filing of the labor certification application or the filing of an EB visa petition.
  • In cases of Per Country Limitation, any alien who is the beneficiary of an EB-1, EB-2 or EB-3 visa petition and would be eligible to apply for permanent residence but a visa number is not available because of the per-country limitation (India or China) may apply to USCIS for an extension of their H-1B visa past 6 years, until an immigrant visa is available or until the application for adjustment is filed and approved.
• H-1B visa Portability: an H-1B worker is allowed to change employers as soon as the new employers files a non-frivolous H-1B petition. Prior to this law, the alien worker had to wait until the new petition was approved before changing employers.

4. Recent changes affecting H-1B employment

• On December 3 rd, 2004 , President Bush signed the 2005 Omnibus Appropriations Bill, which included provisions that modify the H-1B visa program. 
• In March 8 th 2005 (90 days after Bill was signed into law) and unless otherwise noted below, the following amendments went into effect:
  1. H-1B exemption - exempts from H-1B cap up to 20,000 foreign nationals with Masters and higher degrees from US graduate schools.
  2. Additional costs to file H-1B petition - in addition to the basic filing fee of $185 and the (optional) premium processing fee -worker retraining fee - permanently reinstated to $1500 per H-1B petition (previously $1000); for employers with less than 25 full-time employees, the retraining fee is $750 per H-1B petition (effective immediately).
  3. Fraud prevention and detection fee  - $500 fee imposed for initial H-1B, L-1 petitions, and change of status petitions
  4. Prevailing wage - employer must pay 100% of prevailing wage or higher (currently 95%). Governmental surveys will have four wage levels (currently two wage levels).
  5. DOL investigations - increased investigative powers to initiate investigations against employers based on reasonable cause (effective immediately) .
• The SKIL BILL introduced in Congress in June of 2006 exempts U.S.-educated workers with advanced degrees from the H-1B cap and permits work authorization for spouses of H-1B workers. Most importantly, it creates a market-based H-1B cap beginning with a base level of 115,000.
• Memo on Periods of Admission as H-4: after several years of AILA-USCIS liaison efforts, on 12/5/06 Michael Yates, USCIS Associate Director, Domestic Operations, issued a Memo regarding periods of admission for H-4s.1. Clarifies that time spent as an H-4 and L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B and L-1 status. USCIS, therefore, is now clarifying that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.

• Click HERE to see current cap on H-1B Visas

5. Important USCIS Memos & Press Releases (Adobe™ PDF Format)

• USCIS Announces Interim Rule on H-1B Visas Rule Modifies Selection Process and Prohibits Multiple Filings (March 18, 2008)
• USCIS Q & A About New Interim Y 2009 H-1B Visa Rule (March 19, 2008)
• USCIS Update on H-1B Petitions for Y2008 (March 29, 2007)
• USCIS Memo on Periods of Admission on H-4 and L-2  (Dec 05, 2006)
• USCIS Guidance Memo Recapture of Time Spent Outside U.S. for Persons in H and L Status ( Oct 21, 2005 )
• USCIS Guidance Memo on Numerous AC-21 issues ( May 18, 2005 )
• USCIS Memo Implementing H-1B Visa Reform Act 2004 ( May 8, 2005 )
• USCIS Memo Implementing H-1B Visa Reform Act 2004 ( May 4, 2005 )
• Legacy INS Dual Intent Memorandum ( May 14, 2000 )

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