H1-B VISAS

An H1-B visa is the most sought after visa to enter the United States under the non-immigrant work authorization category. This visa allows an alien to work temporarily in the U.S. in a ‘specialty occupation’ or a professional position. It is also applicable to fashion models of ‘distinguished merit and ability’.

The INS defines a ‘specialty occupation’ as that which needs a theoretical and practical application of a body of highly specialized knowledge and requires a U.S. bachelor’s or higher degree in that specific field. If a person holds a foreign degree, then that must be determined to be the equivalent of a U.S. bachelor’s degree. In these cases, educational equivalency may be obtained by combining education and experience in that particular field. This includes architects, lawyers, engineers, doctors, computer analysts, librarians, teachers, etc.

An employer, on behalf of the alien, must file an H1-B petition once a firm job offer has been given and accepted by the applicant. This petition must show that certain pre-requisites have been met, viz.:

a) A Labor Condition Application has been approved by the Department of Labor (DOL)

b) The position must fit within the definition

c) The alien must possess the necessary qualifications and experience to engage in a specialty occupation

In the petition, the employer must describe the nature of the job, the length of time the alien will be required, his/her qualifications and the salary offered.

If granted, the approval will be for maximum period of three years, after which only one extension for another three years may be granted on request. Certain aliens working on Defense Department projects may be granted extensions up to ten years.

H1-B visas are usually not granted to self-employed people. An employer-employee relationship is generally required for an H1-B application. The employer must have an Internal Revenue Tax Identification Number.

Dual Intent Doctrine

The most beneficial aspect of this visa is that according to the law, it allows a person to have what is known as ‘dual intent’. This means that a person may enter the U.S. on a temporary basis and then lawfully apply for permanent residence in the United States.

Six Year Time Limit

The H1-B visas have a maximum time limit of six years. If permanent residence has not been applied for or if applied for, but Labor Certification not received, then the alien must reside for a minimum of one year outside the United States, before applying for another H1-B. However, brief trips to the U.S. for pleasure or business do not interrupt the continuity of the one year.

If the application for labor certification is still pending and the alien does not wish to leave the U.S. after the expiration of the H1-B, he/she may consider changing to another non-immigrant visa status, e.g. F-1, if the alien is able to register him/herself into a full-time study program and obtain a Form I-120. However, most other non-immigrant visas do not permit the individual to work in the U.S.

The process of obtaining labor certification is getting slower as time goes on and the backlog increases as the number of applications keeps rising. It is therefore, best to apply for this as soon as possible, so that the Labor Certification is obtained before the six-year time limit runs out.

There have been important changes made in the H-1B laws due to the introduction of the American Competitiveness in the Twenty-first Century Act of 2000 (AC 21).

See Important Changes to H-1B Laws due to AC 21 and New H-1B Regulations in a Nutshell.

Frequently Asked Questions

Some of the common questions asked by a number of people, have been answered below by Cyrus S Nallaseth, PLLC.

1. When should I file the labor certification application?

I would recommend filing at the earliest available opportunity. There are long waiting periods for priority dates to become available. At present these waiting periods can be between 4 to 6 years for individuals with a Bachelors degree, especially if those individuals were born in India and cannot avail of cross-chargeability (spouse born in a country not subject to the limitation).

These waiting periods are only likely to become longer and longer as the backlogs continue to increase and resources and budgets are cut.

There is a real danger that Consultants may run out of the six year limit and have to return to India, if they do not process their labor certification and Green Card applications in a timely manner. Additionally, consultants will not be able to stay on illegally in the country and later adjust their status, as there is a ten-year bar for remaining illegally in the country.

2. What are the disadvantages of filing a Green Card application with my current employer?

There are virtually no disadvantages because most employers pick up the cost of processing the labor certification and Green Card application; If a consultant decides to leave the employers services he or she may do so at any time without any consequences;

3. What are the significant advantages of starting a labor certification early?

Firstly, you obtain a benefit from the current employer who will pay for your permanent residency and labor certification application; Secondly, you establish an early priority date in long waiting lists and avoid the possibility of having to leave the United States due to the six year period on your H-1B running out; Thirdly, you have the option of leaving your current employer at any time and the filing of a labor certification does not affect this decision in any way. Of course, it also allows you to make a reasoned decision as to whether you should continue with your current employer or leave the current employer and re-start the labor certification process with a new priority date. Fourthly, you obtain a benefit by becoming a permanent resident of the United States with substantial rights, and economic and cultural benefits. Fifthly, a labor certification application is never guaranteed and depends on a number of factors such as availability of US workers, restrictive requirements, and a myriad other issues. In the event an application is denied, the consultant may have the opportunity to pursue other options if the application had been filed early in the game.

4. What if I do not intend to live in the United States and wish to return to my home country?

This may be the way you think at this point of time but many consultants change their minds after a few years and then it is too late to process an application in a timely manner. Besides, even if you do decide to leave the US all that will happen is that the Green Card application process will either be terminated, or continued if you wish to return at a later date.

5. What if my spouse has filed a labor certification application - should I still file a backup labor certification application?

Unless your spouse is already a US citizen (not someone who has applied for this status), it is advisable to file a backup labor certification with your current employer. Since there is no cost involved, in the event your spouses application does not go through, you have an alternative means by which you may obtain permanent residency status. You can always drop the second application once you are reasonably sure the first application will be processed in a timely manner or once your Permanent Residence status has been approved.

6. Does my current employer have any hold on me due to the fact that it has filed an application for permanent residency or labor certification?

Your current employer cannot hold you against your wishes due to the filing of a LC or PR application. However, circumstances may dictate that you stay on and maintain your priority date rather than leave the country at a later date due to time running out. The decision is solely yours.

7. Will I be able to change to some other status or obtain Canadian immigration if I run out of time?

There is no assurance that INS will always allow you to change to F-1 status after 6 years in H-1B status. Even if you are allowed to change status you cannot be employed during this period for extended periods of time. Further, if an I-140 petition has been filed, this may prevent you from changing to F-1 student status. Becoming a landed immigrant of Canada does not always ensure your entry and exit from the US.

8. If I decide to leave this employer will the filing of a Labor Certification application prevent me from filing a new H-1B application or affect a new labor certification in any manner at all?

Absolutely not. The concept of dual intent allows you to obtain an H-1B without any problems and the filing of a labor certification application with one employer does not in any way preclude or affect the filing of a new labor certification application.

9. My new proposed employer has indicated that through the RIR process, they will be able to process my application in a timely manner before my status expires. The employer’s attorney also feels this may be possible.

You have to examine the facts of the case carefully. Obviously the new employer wishes to employ you and will put things in a favorable light. So will the new attorney. At the same time, your current employer and attorney will wish to influence you to their advantage. I recommend that you file first and think later!

10. I have already been in H-1B status for 2 years. My labor certification was filed one-and-a-half years ago. I am now being offered a job at a significantly hire pay scale. What should I do?

This is a personal decision. You could leave and lose your priority date and run out of time. Or you could sacrifice immediate gain of a higher salary and benefits and maintain your priority date, obtain permanent residency and then pursue better opportunities without the risk of having to leave the country. Whatever your decision, it will not be affected in any manner by your prior decision to file a Labor Certification.

11. I have been on an L-1 with one employer for one year, on an H-1B with another employer for 4 years, and now have one year with a 3rd. employer on a H-1B. Before completion ofmy H-1 can I change to H-4 as the spouse of an H-1B and get another six years?

Currently, according to INS regulations you can get a maximum of 6 years in H-1, H-4, L-1, L-2 status with one or different employers. Therefore, you cannot get additional time in H-4 or L-2 status.

12. How should I choose my attorney?

Ask your attorney the following questions:

• What is his or her level of expertise in processing Green Card Applications?
• Does he/she specialize in immigration matters or do they handle other areas that take up time?
• How many staff members does the firm have to process applications? This will give you an idea of the firms ability to handle cases.
• What is the attorney's success rate?
• Get references from other friends and clients but you should make an independent decision.
• Consult with your employer who also wants your PR process to go smoothly and will recommend the attorney who has serviced other applicants well.
• Is your attorney candid about processing PR cases and the time periods or are you being promised the moon? Your attorney should be ethical and protect your interests as well as your employers.

13. Can I return to my home country at the end of 6 years and spend one year abroad and then re-enter for another 6 years in H-1B status, if my permanent residency application has not been completed.

Yes, you may. However, there is no guarantee that the H-1B quota would be available at this time or there is always the possibility that a consular officer may question your motives and prevent you from returning. Also, it is far better and safer to process your PR application with the INS in the US than with a consular officer abroad.

CONCLUSION: As a consultant or an alien on an H-1B visa you have everything to gain and absolutely nothing to lose by filing for permanent residency early in the game.

Related Links:

- Changes to the H-1B Program

- H1B Frequently Asked Questions

- President’s Statement on increase in H-1B visas

- Required Documentation for Form I-129