H-1B & Other Work Visas

H-1B VISAS

 

 

An H-1B 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 USCIS 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.

 

A US based employer/ sponsor must file the petition with the US Citizenship & Immigration Service, on behalf of the applicant. This petition must show that certain pre-requisites have been met, viz.:

 

  1. A Labor Condition Application (LCA) has been certified by the Department of Labor (DOL)
  2. The position must qualify as a ‘specialty occupation’
  3. The alien must possess the necessary qualifications and/or experience to engage in a specialty occupation

 

If granted, the initial approval will be for maximum period of three years. This can be further extended for another 3 years, up to a maximum of 6 years. All time spent outside the US during this maximum permissible 6 year stay, can be ‘re-captured’ with further extensions until the maximum permissible period of 6 years of physical presence in H-1B status in the US has been completed.

 

H1-B visas are usually not granted to self-employed people. An ‘employer-employee relationship’ and evidence of the employer’s right to control the employee for the duration of the requested H-1B validity is essential.

 

H-1B Approvals are specific to the employer who files the petition and also specific to the employee named. They cannot be automatically transferred by the employee to another employer nor by the employer to another employee.

 

 

H-1B Cap

The current law limits the number of H-1B visas to be issued to foreign nationals in a fiscal year, to 65,000. This is known as the H-1B Cap. Out of these, Free Trade Agreements reserve 1,400 H-1B visas for Chilean nationals and 5,400 H-1B visas for Singapore nationals. If these are unused, they are put back into the common pool, for applicants from other countries.

 

An extra 20,000 H-1B visas are awarded to foreign nationals holding a Master’s or higher degree from a U.S. college or university, and this is known as the US Masters Quota.

 

In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities, non-profit research facilities associated with universities, and government research facilities. These are known as Cap Exempt.

 

Cap Exempt cases are also those who have received an H-1B approval from the USCIS at some point in the past six years and so have been counted towards the previous year’s H-1B Cap, although they may or may not have travelled to the US on that approval.

 

Dual Intent Doctrine

One of the most beneficial aspects 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 does not have to prove his/ her non-immigrant intent to return to his/her home country, like many other non-immigrant visa categories. It also means a person may enter the U.S. on a temporary basis and then lawfully apply for permanent residence or a Green Card in the United States and stay on working on his H-1B visa, till such time as the Green Card is approved.

 

Two Step Process

If the candidate is outside the US, getting the H-1B is a two-step process. The initial petition must be filed with USCIS in the US. Once it is approved, the candidate must apply for and obtain an H-1B Visa at a US Consulate in his home country, presenting himself for an interview, along with a copy of his H-1B Approval Notice. Only after the Visa is granted can he/she enter the US in H-1B status.

 

The status of an H-4 dependent is derivative and so linked to the status of the H-1B beneficiary. At the initial stage and when applying from outside the US, no separate H-4 application need be filed with USCIS. The spouse can present herself for an interview with the principal applicant and get an H-4 Visa directly from the consulate. An H-4 spouse generally cannot work in the US. (See H-4s Can Now Work in the US). If the spouse is in the US then an Extension of his/her Stay/ Status should be filed concurrently with the principal applicant’s H-1B Extension of stay also.

 

Six Year Time Limit

The H1-B visas have a maximum time limit of six years. After completing this maximum 6 year period, then the alien must reside for a minimum of one year outside the United States, before applying for a new 6-year H1-B.

 

The ideal situation for those who want to stay on in the US for a longer period is to have an Employer start the ‘Green Card’ process on their behalf. The time frame for getting a Green Card 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, but not later than the start of the fifth year, 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), which extends an employee’s stay beyond the 6 year limit, provided certain conditions are met with respect to the filing of a Labor Certification/ Employment sponsored Immigrant petition.

 

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

H-1B Portability Benefits

Another change brought about by AC21 is the ability for an H-1B employees to ‘port’ or change an employer in the US. An H-1B non-immigrant is permitted to change his/her employer as soon as the new employer files a ‘non frivolous’ H-1B petition provided:

  1. the nonimmigrant was lawfully admitted and
  2. the new petition was filed before the end of their permitted authorized stay and
  3. the non-immigrant has not been unlawfully employed since his admission and before the filing of the new petition.

 

In other words, once you are working in the US on an H-1B visa for ‘Company X’, if you get a better offer from ‘Company Y’, you can change your employer and start working for the new employer as soon as ‘Company Y’ files a new H-1B petition on your behalf and do not have to wait for the petition to be approved.

 

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.