IMMIGRATION: H-1B Visa - Specialty Occupation Visas

The H-1B Visa is used by companies to temporarily employ aliens who qualify as a "Specialty Worker" - that is, a worker who has a Bachelor Degree or higher, working in an occupation where the entry level requirement is normally the type of degree the alien has.

Determining whether a person and a job position qualifies for an H-1B Visa involves a two-stage analysis:

  • First, the job position must be a qualifying occupation, generally recognized by CIS as a "specialty occupation". A specialty occupation job position is one that normally requires a Bachelor Degree or higher as a minimum entry level requirement. There is no list of specialty occupations, and this determination can only be made upon careful research by a trained professional, using up-to-date research materials. While there are gray areas in some occupations, normally, this is where the experience of an immigration lawyer is important, and competent legal advice may save an employer or alien thousands of dollars by honestly warning that the application is not approval..
  • Second, the individual must be documentarily qualified for the position by virtue of an appropriate educational degree. The degree must have some relationship to the specialty occupation the alien will perform. There is an exception to the Bachelor Degree or higher rule, and that involves a combination of education and work experience in the specialty occupation. Again, analysis by a competent immigration lawyer is required to make these determinations, based not only on the law and regulations, but on experience.

A "Labor Condition Attestation" (LCA) must be submitted by the employer and approved by the U.S. Department of Labor, attesting to the fact that the alien will be paid at least the prevailing wage in the geographical area, as determined by the U.S. Department of Labor, or through an independent wage survey to the satisfaction of the government. For approval of an H-1B petition and issuance of a visa, it is not required that the employer prove there are no U.S. workers available, and the Labor Condition Attestation, which inquires only into prevailing wage, should not be confused with a "Labor Certification", part of the permanent residence process, which inquires into to the availability of U.S. workers.

While the position to be filled by the H-1B employee can be permanent in nature, the employment relationship with the alien must be temporary, and although this is a technicality, it must be stated in the supporting documentation.

Normally approved in three-year increments, the H-1B visa has a maximum life of six years, after which time it cannot be extended, or changed to another nonimmigrant employment authorized status, until the alien has resided outside the United States for at least one year. It is recommended that if an H-1B employee desires to continue working in the U.S. beyond the six year limit, that an Application for Permanent Residence through Labor Certification be started early in the H-1B employment relationship, since this process may take several years.

Spouses and Children under 21 years of age receive H-4 Visas. Although H-4 spouses and children are not authorized to work in the United States, children may attend school without applying for a Student Visa.. Spouses who can independently qualify for H-1B status may work in approved employment. A child's H-4 Visa status expires on their 21st birthday, even though the underlying H-1B of the parent is current. Children turning 21 may qualify for a change of status to F-1 or M-1 Student if they qualify.

Annual Cap Limitation on H-1B Visas.

Please note that due to the annual "cap" on H-1B visas, they are not always available. Currently, the cap is 65,000 per year, and is reached quickly. Advance planning is a must.

A recent addition to H-1B law is am 20,000 H-1B visas for persons with a U.S. Master's Degree or higher. Advance planning is a must because of the H-1B Master's Cap.

Also, see the new E-3 visa category for Australians, which is a hybrid between an H-1B and an E Treaty Visa, which takes Australians out of the H-1B cap limitation, but obtains virtually the same immigration benefits. This visa is available only to Australian citizens and their families.

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Frequently asked questions about H-1B visas

What is an 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. What is a specialty occupation? A specialty occupation 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.

Is there an annual limit on the number of H-1B aliens?

Yes. The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status in FY 2004 (The numerical limitation was temporarily raised to 195,000 in FY 2001, FY 2002 and FY 2003 - but this has been repealed)

How long can an alien be in H-1B status?

Under current law, 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. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens 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 EB immigrant, or 365 days or more have passed since the filing of an EB immigrant petition.

Who can an H-1B alien work for?

H-1B aliens 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 aliens may work for more than one U.S. Employer, but must have a Form I-129 petition approved by each employer.

What if the alien’s circumstances change?

As long as the alien continues to provide H-1B services for a U.S. Employer, most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

Must an H-1B alien be working at all times?

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.

Can an H-1B alien travel outside the U.S.?

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.

Can an H-1B alien intend to immigrate permanently to the U.S.?

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.

Can an H-1B worker go to work for a new employer, and if so when?

When a person is on an H-1B and plans to change employers, a new visa petition must be filed with the USCIS, reflecting a change in employment, generally with a request to extend H-1B status. Note that there is nothing that "transfers" from one employer to the other. However, lawful nonimmigrant status does remain, and therefore, if the job with the new employer is substantially the same as the job with the old employer, approval of the new petition is not necessary to begin employment, since the worker already holds H-1B status, and the alien employee can begin working for the new employer immediately after the filing of the new H-1B petition, and does not violate status by accepting that employment at that time..

Is Permission to Accept other Employment is Required
from the Earlier Employer?

Since there is nothing transferred between employers, it is not necessary to obtain permission from Employer A to move to Employer B. Employer B must simply file a new H-1B petition with the USCIS.
In order to obtain the H-1B extension of status in the United States, the foreign national beneficiary must show that he or she is in status at the time of filing. This is usually evidenced by including the most recent pay stubs.

Be aware, however, that this ability to obtain a new H-1B approval without the permission of Employer A does not override any contractual obligations in terms of notice, non-compete agreements, and other contractual provisions that the H-1B may have in a contract of employment with the original H-1B employer, and these matters are often governed by both federal and state law aspects of contract and employment law.

Multiple H-1B Filings - Can a foreign worker, who has a pending
H-1B case filed by Employer B, who then wants to work for Employer C?

As long as there is an unbroken chain of status, the H-1B may be approved as an extension of status with an I-94 attached at the bottom of the H-1B approval notice. Multiple filings are not without complications, however. Multiple filings can create confusion when trying to track an individual's status. There are issues with what is known as "bridging" when there are multiple filings. If one is relying on the filing from Employer B as a bridge in status to carry him/her over to Employer C, the Employer B petition has to be approved in order for the Employer C petition to be approved as an extension of status. Simultaneous H-1B authorization is possible in certain circumstances. It is best to get qualified legal advice to determine how to best coordinate these complex matters.

What to Do if You Do Not Have Recent (within 60 days) Pay Stubs?

People often want to leave their H-1B employers when they are being unlawfully benched, or otherwise not paid under the requirements of the H-1B Labor Condition Application, and they worry about whether they can work for another company as an H-1B if they are no longer being paid. If there are no recent pay stubs, it may not be possible to establish that the individual has been maintaining H-1B status.

So, it may not be possible to obtain an H-1B extension of status within the U.S. This, however, does not prevent one from obtaining an H-1B petition approval through a new employer and then going abroad and having a new H-1B visa issued at a U.S. Consulate, then reentering the United States on a new I-94.

Remember, however, that Consular Officers have complete discretion in issuing visas, and under some circumstances a visa may be denied. It is imperative that competent immigration counsel be consulted for advice regarding these types of matters.

 

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