Generally

The H-1B is a nonimmigrant classification that allows temporary employment in the U.S. in a "specialty occupation" or as a fashion model of distinguished merit and ability.

The foreign worker must have the equivalent of a bachelor's degree (based upon education, experience, or a combination of both), and an offer from a US employer to work in a "specialty occupation."

The government defines "specialty occupation" as a position that requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

H-1B "Quota"

Currently, H-1B approvals are limited to 65,000 per year for FY2004. (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003.) This is called the H-1B Quota or H-1B Cap.

The H-1B Quota does not apply to H-1B renewals, and in a few other cases.

Procedure for Applying

The first step in obtaining an H-1B is for the employer to file a labor condition application (LCA) with the Department of Labor. Currently, LCAs are submitted online via the US Department of Labor's "iCERT Visa Portal" system. Processing time for the LCA is currently about one week.

The second step is for the employer to file Petition for Alien Worker on Form I-129, along with the certified LCA, and sufficient documentation of the foreign employee's eligibility, along with a check for the filing fees. The current processing time for H-1B I-129 varies, but averages around 4-6 months, for standard processing. The most accurate current estimate may be obtained online.

Once that I-129 is approved, if the foreign worker is currently in the U.S., the case is essentially complete -- the I-129 approval serves to change or extend the status of the foreign employee to H-1B without any further action. (This requires the a change or extension of status was requested by the employee).

However, if the foreign worker is abroad, the case proceeds to the third step. The foreign worker must apply for the H-1B visa at a US consulate abroad. Consulate procedures vary, but in many cases, the foreign employee may apply for an H-1B visa with a valid passport, the original approval notice, a copy of the petition package, and an updated employment confirmation letter. Other documentary requirements vary from consulate to consulate.

Maximum Stay in H-1B Status

Under current law, the foreign worker can be in H-1B status for a maximum period of six years at a time. After that time, he/she must remain outside the United States for one year before another H-1B petition can be approved. Certain foreign workers with Defense Department projects may remain in H-1B status for 10 years. In addition, certain foreign workers may obtain an extension of H-1B status beyond the 6-year maximum period, when:

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 Employment-Based (EB) immigrant, or

365 days or more have passed since the filing of an EB immigrant petition.

Employment Restrictions

The H-1B worker may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B workers may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

Changes to the terms of employment (duties, hours, etc.) may affect the H-1B worker's status. Normally, a mere increase in salary will not, however.

The H-1B worker may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the worker before he or she begins working for the new employer.

Travel

H-1B workers may travel outside the U.S. and re-enter in H-1B status, provided that they have obtained an H-1B visa from a U.S. consulate abroad.

An H-1B visa allows the employee holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Processing toward Immigration

Unlike holders of many other types of status (e.g.., F-1 student status), an H-1B worker may process towards a "green card" while in 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 green card is pending, the H-1B worker may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission to return to the U.S.

FOR MORE INFORMATION:

Contact us at 410-719-1501.