Non-immigrant Visa: H-1B
The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.
The current law limits to 65,000 the number of aliens who may be issued a visa. 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.
Petition Requirements
·Specialty occupation
H-1B petition requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include: engineers, nurses, professors, researchers, computer programmers and other professionals.
·Educational requirement
The alien possess at least a bachelor's degree or its equivalent.
·Minimum prevailing wage
The employer must pay alien the minimum prevailing wage or higher, as determined by State Employment Agency rules or other approved standard guidelines.
H-1b Petition Process
Three steps are required to complete an H-1B petition.
1. The prevailing wage request is obtained from the State Employment Agency;
2. The Labor Condition Application is filed with the Department of Labor;
3. The actual H-1B petition is filed with the USCIS.
It takes two to four months for CIS process an H-1B case. For H-1B premium processing, it takes 15 calendar days.
H-1b Premium Process
The Premium Processing Program for H-1B petitions began on July 30, 2001. For an additional fee of $1,000, USCIS will approve the petition, deny the petition, or make a request for additional evidence within 15 calendar days. USCIS will refund the $1000 fee if it does not adjudicate a case within the required 15 calendar day period.
H-1B Frequently Asked Questions
1. Can I begin working for my new employer once I have filed the H1B petition?
A: It depends. If one was previously in H1B status, then s/he is legally allowed to start working for the employer upon filing the H1B petition. Otherwise, that individual is not.
2. I was in H1B status and changed to F-1 status. I am now ready to work in H1B status again. Do I get six more years in H1B status?
A: No. Your six-year clock in H1B status is not reset unless you leave the United States for at least one year.
3. I’m in F-1 status and have a practical training work permit. If my work permit expires, do I have to stop working until the H1B approval comes through?
A: Yes. One must stop working upon the expiration of the EAD or the OPT. If an H1B petition requesting a change of status is filed prior to the expiration of the F-1 status (date of completing school or of finishing practical training, plus 60-day grace period), one can legally remain in the U.S. However, one cannot work for the H1B-sponsoring employer during the period between the expiration of the practical training authorization and the start date for the validity of the H1B approval.
4. Must an H-1B alien be working at all times?
A: As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
5. Can an H-1B alien travel outside the U.S.?
A: Yes. 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.
6. Can an H-1B alien intend to immigrate permanently to the U.S.?
A: Yes. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.
7. My spouse is in H-4 status and was offered a job. Can s/he begin working?
A: No. H-4 is a non-working status. In order to be able to work in the U.S., one who is in H-4 status must have an employer file an H1B petition or petition for another working status (other working category).
8. I currently hold H1B status. Am I subject to the H1B quota?
A: No. Typically, if you are in H1B status and have been counted against the H1B quota already, you are not subject to the H1B quota.
9. I'm an H-1B dependent employer. What kind of documents will I need to show that I have not displaced any U.S. workers?
A: You should maintain thorough payroll information and keep all records regarding the termination of an employee covering at least 90 days before and after the filing date of the H-1B petition.
10. I don't have a Master's degree, but may I use my work experience to show that I have the equivalent knowledge and background of a Master's graduate in order to qualify as an "exempt H-1B nonimmigrant" worker?
A: No. The equivalence to the degree cannot be established through experience.
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