Van Der Hout LLP

H-1B Visa Requirements And Processing Procedures

“H-1B” is a nonimmigrant status available for individuals who will be employed temporarily in the United States. An H-1B visa petition may be filed only for a “professional” position, a position for which the minimum entry-level requirement for the job is a Bachelor’s degree or its equivalent. The degree requirement may not merely be the employer’s preference; a degree must be generally required for the occupation and the employee must be qualified for the position. In most cases this means that the individual must hold a degree that is related to the position. If a license is required to practice the profession, then evidence of licensure in the place of intended employment is normally required. As H-1B status involves an employer-employee relationship, it is not available to independent contractors, although part-time employees may qualify.

H-1B status may be obtained initially for a three-year period, after which the employer may request an extension on behalf of the employee for up to three additional years. The U.S. Citizenship and Immigration Services (USCIS) will count all time the employee has been in the United States in H or L status toward the total time permitted. An individual must remain outside the United States for a period of one year once the six-year limit is reached before s/he may re-enter the U.S. to be employed in H-1B status for an additional period. Pursuant to new rules established in the fall of 2000, in certain circumstances an individual may be employed in the United States for more than six consecutive years if a labor certification or I-140 Immigrant Visa Petition is pending.

The base filing fee for the petition is $320.00. In addition, petitioners seeking an initial grant of H-1B classification must pay a $500 Fraud Prevention and Detection fee, and those petitioners seeking an initial grant or first extension must also pay a training fee which is to used for low income students and for job training for U.S. workers. The training fee is $750 for employers with 25 of fewer employees or $1,500 for employers with more than 25 employees. Additional costs may include costs for express mail service, a optional $1000.00 expedite fee for premium processing, or foreign college/university credential evaluations, experience evaluations, etc. depending on the employee’s background.

Once H-1B status is accorded, the employee may work only for the petitioning employer. If the employee wishes to change positions, either with the same employer or with a different employer, generally, a new H-1B petition must be filed prior to beginning new employment. If an individual works for a different employer without meeting the “portability” requirements established by the USCIS, (for “portability” rules, please see the page on “H-1B Portability”) that employee would be deemed to have violated his or her nonimmigrant status. If an employee is terminated before the end of the period of authorized stay, an employer may be liable for the reasonable costs of return transportation abroad for the employee.

Employers must offer H-1B workers employment related benefits (such as health, life, disability or other insurance, retirement or savings plans, bonuses and stock options) on the same basis as such benefits are offered to U.S. workers. As a general rule, employers must also continue to fully compensate H-1B workers even if the employer places them in a nonproductive status; however unpaid leave at the employee’s request is usually permitted, if consistent with employment policies for all employees.

In order to obtain H1-B status for a nonimmigrant worker, the employer must provide certain information to the Department of Labor (DOL) and the USCIS. A Labor Condition Application (LCA) is filed initially with the DOL to ensure that United States workers will not be adversely affected by the hiring of a foreign national. An LCA forwarded by facsimile or electronically (online) normally takes a day or two for approval. An employer is required to post a copy of the LCA in two places at its worksite, and must maintain documentation in files, which must be made available for review by the public. The DOL may conduct an investigation and may demand to see the documentation relating to the wages and working conditions of the H-1B employee.

Employers are required to offer a wage equal to or greater than the “prevailing wage” for the occupation in question or the “actual wage” paid to other employees in similar positions, whichever is higher. The prevailing wage is considered the average rate of pay offered for a particular occupational classification to employees with similar experience and qualifications throughout a specific geographic area (often commuting distance from a specific area). The State Workforce Agency (SWA) will usually determine the prevailing wage. An employer may choose, however, to rely on an independent survey source that meets regulatory requirements.

In any case, an employer must be prepared to hire the H-1B employee at the established prevailing wage beginning no later than 30 days after the date the nonimmigrant is admitted to the United States pursuant to the petition, or 60 days after the nonimmigrant becomes eligible to work for the employer if already in the USA. An employer may not require the employee to pay attorneys’ fees or other costs associated with obtaining H-1B status if the payment of the fees would reduce the employee’s salary below the prevailing wage.

The prevailing wage and corresponding LCA are area specific. If an H-1B employee is required to work in a different geographic location not designated on the LCA, a new filing may be required. For more information on requirements for traveling H-1B employees, please see the page on “Traveling H-1B Employees.”

The approved LCA is filed with the I-129 Nonimmigrant Visa Petition and supporting documentation with the USCIS Service Center. The USCIS can take as much as six months or longer to review the petition. If the USCIS requests additional information in order to render a decision, adjudication will take longer. An expedited adjudication process called “Premium Processing” is available from the USCIS for an additional fee of $1,000. Premium Processing requires the USCIS to adjudicate the petition or request more documentation within 15 days.

If an H-1B employee has a spouse or children who are present in the United States at the time the petition is filed, a separate form to change or extend their status may also need to be filed.

If the employee is in lawful nonimmigrant status in the United States, he or she may be eligible to change his or her status to H-1B status without leaving the United States. If the employee is not in valid nonimmigrant status or is outside the country at the time the petition is approved, the employee must use the Notice of Approval form to apply for an H-1B nonimmigrant visa at a United States consulate abroad. Such a visa may be used to enter the United States in valid H-1B status. Canadian citizens do not need visas and may obtain entry documentation (Form I-94) at a port of entry once a petition is approved.

Congress has established a cap on the number of H-1B visas available at the beginning of each fiscal year. The 65,000 available H-1B visas for fiscal year 2009 (October 1, 2008 – September 30, 2009) have been allocated. Once the annual cap is reached, a petition on behalf of a foreign national who is not currently in H-1B status may not be approved until additional visas are available for the following fiscal year. For visas available on October 1 in any fiscal year, a petition may be filed on or after April 1. Certain employers, including institutions of higher education and non-profit research entities are exempt from the cap. Also, Congress has allocated an additional 20,000 visas for foreign nationals who have earned Masters Degrees from U.S. colleges or universities. Careful advance planning is required to ensure that employers who wish to employ foreign nationals requiring H-1B status apply early enough to be assured a visa number.

The above is a general overview of the H-1B application process and is not a substitute for legal advice regarding an individual case. Comprehensive legal advice may only be provided after a detailed review of an individual case. Careful and accurate preparation of H-1B petitions is extremely important as the USCIS may impose penalties in the form of debarment or fines against employers who fail to comply with legal requirements.

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