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H-1B Work Visa

Law Offices of Yu & Associates


What is the H-1B Visa?

An H-1B visa allows an alien to work in the U.S. temporarily (usually for a period of three years, with the possibility to request a renewal for another three years) in a specialty occupation or as a fashion model of distinguished merit and ability. The H-1B visa requires a job offer from an employer who will petition for the worker, and the worker must meet certain qualifications such as a bachelor¡¯s degree or recognition in the field (for modeling). An H-1B holder can apply for permanent residency through employment based immigration petitions such as EB-1 and EB-2 while in this status.

Which H-1B Applicants does the Annual Quota Apply to?

Only 65,000 applicants may be issued H-1B visas or otherwise given H-1B status every year. 6,800 of these visas are reserved under free trade agreements for citizens of Chile and Singapore, however, so for most applicants, the number of H-1B visas available each year is actually 58,200. Petitions can be submitted beginning April 1 and continuing until the quota is reached.

H-1B petitions for aliens who earned a Master¡¯s degree or higher from a U.S. institution are subject to a separate cap (the ¡°advanced degree cap¡±), which allows for 20,000 visas per year. Advanced degree petitions undergo a random selection process for the cap, and any not selected are included in the second round of random selection for regular petitions. However, in 2008, the regular cap and advanced degree cap were both filled by the same day, April 8.

Certain H-1B petitions are exempt from the annual visa cap, which means those petitions can be filed at any time, whether the annual quota has been filled or not:

  1. Non-immigrants who worked in H-1B status within the past six years and were subject to the H-1B quota, and currently hold another valid non-immigrant status and have not been outside the U.S. for more than one year, will be exempt if they apply again for H-1B status.
  2. Applicants who are sponsored by institutions of higher education or related or affiliated nonprofit entities, or by nonprofit research organizations or governmental research organizations, are exempt.
  3. Physicians who have received a J-1 Conrad 20 waiver of the 2-year home residency requirement in order to fill the healthcare shortage are exempt.

Moreover, the following petitions filed for individuals currently in H-1B status are also not subject to the cap:

  1. Amended petitions filed to notify USCIS of changes in the terms and conditions of employment of the H-1B beneficiary.
  2. Petitions to extend the beneficiary¡¯s H-1B status.
  3. Concurrent petitions to begin working for a second employer while continuing to also work for the first employer, as long as the beneficiary is currently subject to the cap or has been in the past six years.
  4. Transfer petitions to begin working for a new employer, as long as the beneficiary is currently subject to the cap or has been in the past six years. In this case, the applicant can begin working for the new employer immediately without waiting for the petition to be approved or the start of the fiscal year.

Without a Bachelor¡¯s Degree, Can I Still Apply for an H-1B Visa?

The H-1B application must be sponsored by an employer and the beneficiary must work in a specialty occupation. A specialty occupation requires a bachelor¡¯s degree or its equivalent, and ¡°theoretical and practical application of a body of specialized knowledge.¡± Some examples are architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

If the applicant doesn¡¯t hold a bachelor¡¯s degree, work experience may be substituted. Three years of experience is considered the equivalent of one year of college coursework. Therefore an applicant with an associate¡¯s degree and at least six years of experience would also be eligible.

Also, if a license is required to practice the occupation, the applicant must hold the required license.

How Long Can an H-1B Worker Stay in the U.S.?

An alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:

  1. The H-1B holder filed an application for labor certification or for employment-based immigration (EB petition) at least 365 days before the expiration of H-1B status, and the applications are still pending. In this case, extensions are granted in one-year increments.
  2. The H-1B holder has an approved I-140 (employment-based) petition but an immigrant visa number is not yet available. In this case, extensions are granted in three-year increments.

How Long Does It Take for an H-1B Application to be Processed?

Regular H-1B petitions usually take about 2-3 months depending on the processing schedule at each USCIS center. Premium Processing Service is available for H-1B petitions for an additional fee of $1,000. This means that USCIS will process the petition (that is, approve or deny the petition or request additional information) within 15 days of receiving the petition.

If the petition is not processed within 15 days or the petition is not eligible for Premium Processing, then the fee will be refunded and the petition will be processed normally. A request for Premium Processing can be submitted after the petition is filed. In that case, the 15 day period will begin when USCIS receives the request for Premium Processing.

If the H-1B Employer Has Hired Many H-1B Workers, Is That a Problem?

Some employers who have difficulty finding qualified U.S. workers, for instance in the technology sector, end up hiring large numbers of temporary H-1B workers to fill positions. These employers may be labeled ¡°H-1B Dependent¡± if:

  1. An employer has 25 or fewer full time employees of which more than seven are H-1B employees;
  2. An employer has between 20 to 50 full time employees of whom more than 12 are H-1B employees; or
  3. An employer has more than 50 full time employees of which 15% or more are H-1B employees.

If an employer is labeled H-1B Dependent, the H-1B application can still be successful as long as the employer fulfills additional requirements when filing an H-1B petition either for a new employee or to extend the status of an existing one.

  1. The employer may not displace a U.S. worker in a similar position within its own company or another company (in the case of a contracting position) within 90 days of filing the H-1B petition.
  2. The employer must make recruiting efforts according to industry-wide standards and must hire any qualified U.S. worker that applies for the position. The recruiting process should be thoroughly documented in order to demonstrate to USCIS that the company has actively sought U.S. workers to fill the position.

An H-1B Dependent employer does not have to fulfill these requirements if the H-1B applicant is an ¡°exempt H-1B nonimmigrant,¡± that is, a worker who earns at least $60,000 per year (including bonuses but excluding benefits) or holds a Master¡¯s degree or higher in a field related to the position.

Can the Spouses and Children of H-1B Workers Stay in the U.S.?

The spouse and children under age 21 of an H-1B holder can apply for H-4 status to accompany the H-1B holder in the U.S. They are not allowed to work, however, unless otherwise authorized by USCIS.

Can the H-1B Worker¡¯s Spouse and Children Study at U.S. Schools/Colleges?

Both H-1B holders and their spouse and children under 21 in H-4 status can go to school full- or part-time while in H-1B/H-4 status. However, the H-1B holder cannot receive a teaching assistantship or compensation from his or her school and must continue working in his or her specialty occupation in order to maintain H-1B status. If the H-1B holder wishes to receive assistance from the school or stop working to pursue studies, he or she must apply to change to F-1 status.

Can an H-1B Worker Change His/Her Employer?

An individual in H-1B status may change employers without affecting his or her status, but the new H-1B employer must file an H-1B transfer petition before he or she begins working for the new employer. The individual does not have to wait for the petition to be approved, but rather can begin working for the new employer as soon as the petition is filed (this is different from the initial H-1B petition, where, unless otherwise authorized to work, the applicant cannot begin working until the petition is approved).

Does the Merger or Sale of the Employer¡¯s Business Affect My H-1B Status?

The merger or sale of an H-1B employer¡¯s business usually will not affect the alien¡¯s status. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation. Also, if the new company does not acquire all the interests and liabilities of the old company, new or amended H-1B petitions may need to be filed for any H-1B employees.

Can an H-1B Worker Work Part-time and Work for More Than One Employer?

The H-1B holder may work for more than one employer as long as each employer has a separately approved H-1B petition. If the individual works part-time for two employers, there is no set number of hours he or she must work for each employer.

Can I Start My Own Business and Apply for H-1B Status for Myself?

It is possible to start a company and apply for H-1B status for yourself. You will need to prove that the company has the ability to pay the prevailing wage¡ªthat is, that you have attracted investment or obtained commercial contracts or grants that have been signed, etc.¡ªand that there is a business need for your position¡ªie., there is demand for the services you provide.

If My Work is Terminated by the Employer, What Should I do?

The employer may terminate the H-1B holder¡¯s employment for any reason or replace him/her with a U.S. worker. In this case, the individual should try to find new H-1B employment or change to another non-immigrant status before the termination date or as soon as possible thereafter. Also, when filing the H-1B petition, the employer must agree to pay reasonable transportation costs for the alien to return to his or her home country in case the employer terminates employment before the end of the authorized employment period.

How do Fashion Models Qualify for H-1B Status?

To qualify for an H-1B visa, a fashion model must be ¡°prominent in the field of fashion modeling¡± which means that he or she must possess ¡°a high level of achievement in the field of fashion modeling evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well known in the field of fashion modeling.¡± This kind of distinction can be demonstrated by the following:

  1. National or international recognition and acclaim for outstanding achievement in his or her field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material;
  2. Evidence that he or she has performed and will perform services as a fashion model for employers with a distinguished reputation;
  3. Recognition for significant achievements from organizations, critics, fashion houses, modeling agencies, or other recognized experts in the field; or
  4. Evidence such as contracts showing that he or she commands a high salary or other substantial remuneration for services.

In addition, the employer must demonstrate that it is necessary to hire a prominent fashion model. One of the following reasons can be used:

  1. The model will perform services that involve events or productions which have a distinguished reputation; or
  2. The organization for which the services will be performed has a record of hiring prominent persons.

Can H-1B Workers Travel Outside U.S.?

H-1B visa holders may travel outside the U.S. An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition. However, if the alien has also submitted an immigration petition, then in order to return to the U.S. after traveling abroad, he or she must either obtain a new H-1 visa in the home country or a third country before returning to the U.S. or obtain Advance Parole before departing the U.S.

Can H-1B Workers Apply for a Green Card?

While holding H-1B status, an H-1B alien can apply for a green card and can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without affecting his or her H-1B status. H-1B status-holders are allowed to have nonimmigrant and immigrant "dual intent". During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa or request advance parole from USCIS to return to the U.S before the departure.

 

The above is intended as a general introduction and should not be construed as legal advice or legal opinion for your particular case. Please contact the Law Offices of Yu & Associates with any specific questions. Tel: (301) 838-8986, Email: syu@yulegal.com, Address: 110 N Washington St., Suite 328E, Rockville, MD 20850.



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