H-1B Visas: An Overview

Friday, May 18, 2007
Contributed by: Charles A. Mallard

Because of visa number limitations, timing of filing for H-1B is crucial. There is an annual limit of 65,000 aliens who may be issued a visa or otherwise provided H-1B status. Additionally, up to 20,000 H-1B slots are available to graduates of US masters degree (or higher) programs from US institutions. Currently petitioners are preparing to apply for visa numbers for the new fiscal year, which begins on October 1. The very first possible date to submit the petition is six months in advance, April 1, 2007.

What are the main requirements for H-1B visa?

The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation. The employer has to certify that the alien will be paid 100% of the prevailing wage for the position in the respective geographic area of employment.

What is a specialty occupation?

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. Some occupations, such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are defined by statute as specialty occupations. However, there are borderline occupations, such as bank officer, for example, where the employer will have to prove that the requirement for bachelor's degree or the equivalent is typical in the industry.

Who is subject to the cap?

Applicants filing for amendments, extensions, and transfers are exempt from the cap. The cap also does not apply to applicants filing H-1B visas through institutions of higher education, nonprofit research organizations, and government research organizations affiliated with institutions of higher education.

What are the advantages to applying for an H-1B?

This visa allows for "dual intent," i.e., applying for immigrant visa while maintaining a non-immigrant status. With the current retrogression of visa numbers in some employment-based immigrant visa categories, it is more likely that an alien will be caught in a situation of having to maintain a non-immigrant status while waiting for an immigrant visa number.

Another advantage to the H-1B category is that the employer does not need to demonstrate that there is a shortage of qualified US workers and, consequently, a labor certification process can be avoided.

What is the H-1B application process?

Step One is a Prevailing Wage Determination. U.S. immigration law requires that all H-1B employees be paid the prevailing wage for their occupation or the actual wage being paid by the employer to other professionals in the same field - whichever is higher.

Step Two is called the Labor Condition Application (LCA). Once the employer has established the prevailing wage it may submit a LCA to the U.S. Department of Labor. The LCA requires the employer to attest that the foreign professional's working conditions will not adversely affect working conditions of U.S. professionals similarly employed. The employer also must attest that there is no lockout or strike taking place in the employee's occupation, that employees or their bargaining representatives have been given a copy of the LCA, and that a copy of the LCA has been given to the employee. By law, the Labor Department must take action on an LCA within seven business days. Severe penalties may be imposed for misrepresentations or failure to comply with statements contained in the LCA.

Step Three is the H-1B Petition. Once an LCA is approved, the employer may submit an H-1B petition to the INS. Documents demonstrating the employee's education, experience and any required licenses must accompany the petition, and the employee cannot begin work until the petition is approved. The employee's spouse and children under 21 may be granted H-4 status, allowing them to stay in the U.S. and attend school, but not to work. The processing time for an H-1B petition varies according to the INS Service Center where it is submitted but currently stands at over 180 days. However, if employers are willing to pay an extra $1,000 in filing fees to the government, the petition must be processed in 15 days or less under the Premium Processing Program.

What is the maximum period of stay for an H-1B visa?

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After this time, an alien must remain outside the United States for one year before another H-1B petition can be approved. Additionally, certain aliens may extend their status beyond the 6-year period in one year increments if:

  • 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
  • 365 days or more have passed since the filing of an EB immigrant petition.

What are the limitations of an H-1B visa?

H-1B aliens may only work for the petitioning US employer and only in the H-1B activities described in the petition. H-1B aliens may work for more than one US employer but must have a Form I-129 petition approved by each employer.

H-1B employees may apply for a change of status from one employer to another.

What is 'H-1B Portability'?

One of the easiest ways to fail to maintain status is to change employers without filing a new H-1B petition. The process of transferring the H-1B to another employer is called portability. H-1B workers can begin working for a new employer as soon as the new employer files an H-1B petition for the worker. In the past, the worker had to wait for the petition to be approved before he could begin working for the new employer.

If an alien changes employers and then decides to go back to the first employer, he or she may resume work with the first employer without having to re-file H-1B petition.

Can an H-1B alien travel outside the US?

Yes. If a change of status to H-1B was approved in the U.S., when the alien travels outside of the U.S., he or she must obtain a visa based on the approval of the H-1B petition before reentering the U.S. An immigrant with H-1B status may reenter the US during the validity period of the visa and approved petition.

What are the filing fees associated with an H-1B visa?

Basic filing fee - $190.

Training fee - $1500. Employers with less than 25 full-time equivalent employees in the US (including employees of affiliates and subsidiaries) pay $750.

The following categories of employers and employees are exempt from the H-1B retraining fee:

  • The employer is an institution of higher education as defined in the Higher Education Act of 1965; or
  • The employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education; or
  • The employer is a nonprofit research organization or governmental research organization, that is primarily engaged in basic research and/or applied research; or
  • This petition is the second or subsequent request for an extension of stay filed by the employer regardless of when the first extension of stay was filed or whether the $1,000 filing fee was paid on the initial petition or the first extension of stay; or
  • This petition is an amended petition that does not contain any requests for extension of stay filed by the employer; or
  • This petition is to correct an Immigration and Naturalization Service error; or
  • The employer is a primary or secondary education institute; or
  • The employer is a nonprofit entity which engages in an established curriculum-related clinical training or students register at the institution.

Applicants seeking faster processing can pay a $1000 premium processing fee to be guaranteed an answer within 15 days.

Finally, on March 8, 2005, a new $500 fraud prevention and detection came into force.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.