The H-1B visa is popular because of its low entry barrier (a bachelor’s degree), its portability (allowing the holder to change jobs) and its tolerance of the candidate’s “dual intent” (by allowing an H-1B holder to transition to a permanent residence without returning home). Its main weakness is the annual cap on the number of visas approved, which renders the process quite competitive.
The H-1B allows an employer to hire a highly skilled worker, even if the worker is not a citizen or permanent resident of the US. The employer may file a petition on behalf of someone already in the US (on an F-1 student visa, for example) or someone located abroad. It is the employer who must file the petition, not the candidate, and the candidate cannot be issued an H-1B visa without the support of the employer.
The H-1B visa allows an employee to work in the US for up to three years, and in most cases, it is renewable once and only once, for a total term of six years. To be eligible, the candidate must have received a firm job offer from a US employer for:
Processing time averages four to seven months unless Premium Processing is selected (see below for details). An employer is not allowed to begin the H-1B petition process less than six months prior to the candidate’s intended start date. Visa processing runs from April through October of each year.
US law defines “specialty occupation” as an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge.” Typically, the job must require a bachelor’s degree, and the candidate must possess a bachelor’s degree or its overseas equivalent. It is sometimes possible to obtain an H-1B visa without a bachelor’s degree, but in that case, the candidate should have at least 12 years of experience in a related field.
To establish a legitimate employer/employee relationship, the employer must have issued a definite, full-time job offer to the candidate, and the candidate must have accepted it. The candidate’s proposed duties must be specific, the job must be a ‘specialty occupation’, and the candidate must be qualified to perform it.
The candidate cannot be an independent contractor in disguise — the employer must have the right to control when, where, and how the candidate performs the job. The USCIS will make its decision on a case-by-case basis based on the totality of the circumstances.
The employer must not pay the candidate any less than he would have paid a US citizen employee. This is required not only to protect the candidate from exploitation, but also to protect US workers from being laid off in favor of cheaper noncitizen employees, and from being forced to accept lower pay to compete with them.
Employment in the US under H-1B status requires certification from the US Department of Labor (DOL) before the H-1B petition is sent to the USCIS. The application must be submitted online through the DOL iCert website on Form ETA-9035.
In the LCA, the employer must affirm that:
Misrepresenting any of the foregoing can result in serious penalties against the employer, including criminal penalties. There is no fee for filing an LCA application, and processing takes roughly a week.
Filing fees can be a significant consideration in an H-1B petition: Following is a list of current frees.
The fee must be paid with a check or money order drawn on a U.S. bank in U.S. dollars, payable to “USCIS.” It is against US law for an employer to ask a candidate to pay any of these fees himself.
H-1B employers cannot file a petition or a request for an extension for their candidate more than six months before the candidate’s projected start date (typically October 1). Following is a rough overview of the process:
The following documents are required for an H-1B petition:
Although the total annual H-1B visa cap is set at 85,000, several annual sub-caps apply, including:
H-1B petitions are accepted beginning on April 1 of each year. Since the caps are usually reached within the first week of April, and since the visa process is very competitive, you must submit your petition during this short time window. Beginning in 2020, employers will have to register before the filing season begins on April 1.
Among those petitions subject to the cap, the USCIS will select the appropriate number of petitions to process through a random lottery, and it will return the rest without processing, along with a refund for the application fees.
Typically, between 30 percent and 50 percent of petitions are accepted for processing. A petition that is accepted for processing can still be rejected for deficiencies in the petition itself, and no refund of fees will occur simply because a petition was rejected. Processing will be completed by October 1.
If the candidate has dependants who wish to travel with him, it is possible to apply for H-4 visas for his dependents. It is also possible for an H-4 visa holder to apply for employment authorization. Processing could take as long as processing for the H-1B petitioner, however, and the fee is currently set at $190.
During H-1B processing, the USCIS will review the job description, proposed salary and the qualifications of the candidate. It will also carry out a background investigation of the candidate.
The Premium Processing fee is currently set at $1,410. If Premium Processing is selected, case processing will take no more than 15 days after the visa lottery takes place, unless a Request For Evidence (RFE) is issued. Note that:
An RFE (and, more ominously, a Notice of Intent to Deny) is a document sent to an applicant after processing has already started. It requests further evidence that must be submitted in a timely manner; otherwise, the USCIS will consider the petition abandoned and thereby reject it. The issuance of RFEs has greatly increased since 2017, although the RFE rate still has not reached 50 percent of all petitions submitted.
An H-1B visa, initially granted with a term of up to three years, can generally be extended for another three years. After this six-year period expires, the employee must either return home or use some other status to justify remaining in the United States.
Any “material” change in working conditions will require the filing of an amended H-1B petition and the submission of new filing fees. A “material” change could mean a change in job duties, working hours or job location. You may need an immigration attorney to help you determine whether a particular change is likely to be considered “material” by the USCIS.
Portability is one of the main inherent advantages of the H-1B visa. It applies not only to employees in H-1B status but also to former H-1B holders who are awaiting adjudication of their petitions for permanent residence. With portability, an employee in valid H-1B status can start a new job with a new employer as soon as the employer files a new H-1B petition for him, without delaying his start date until the USCIS accepts his petition and without waiting for his original H-1B visa to expire. Additional filing fees will be necessary.
If the employee’s petition is rejected, or if he gets fired or laid off from his job, he enjoys a 60-day grace period before he must leave the US, during which time he can seek further employment with another employer willing to sponsor him for H-1B status. This setup can work well for the original employer as well since if an H-1B employee changes jobs, the former employer is excused from paying for the employee’s return flight home even if it the former employer laid him off or fired him.
If H-1B status should turn out to be inappropriate for some reason, you might consider one of the following alternatives:
These are not the only options — another type of visa might be available, depending in the circumstances.
One of the major attractions of the H-1B program is the ability to adjust status to Lawful Permanent Resident. Following is a brief description of three possible pathways:
Like it or not, the H-1B visa is a political football and the rules keep changing. Under the Trump administration’s “Buy American, Hire American” directive, H-1B visas are under increased scrutiny, and adverse changes to law and policy are reasonably likely. Recent developments include:
More developments are likely, although they might not all be negative. Nevertheless, it is more important than ever to keep current on what is going on with H-1B law and policy before filing an H-1B petition.
Obtaining H-1B status requires a lot of paperwork. Before you even apply for H-1B status, for example, you must be cleared by the US Department of Labor to make sure that your employment will not adversely affect US workers. This clearance takes the form of the Labor Condition petition (LCA).
The LCA is filed on ETA Form 9035. It is the employer who files this application, not the H-1B worker, and it must be re-filed and re-approved every time that an H-1B worker seeks an extension of his H-1B status.
In the LCA, the employer must attest (guarantee under oath) that:
Any misrepresentation of the foregoing attestations can result in civil or criminal penalties.
Following is a general overview of the steps you need to obtain and use an LCA.
As an employer, you must pay your H-1B worker a minimum “required wage”, calculated in accordance with Department of Labor guidelines, even if this amount is above the legal minimum wage (which it almost certainly will be). You are free to pay more than this amount, but not less.
The purpose of this rule is not so much to protect the H-1B worker, although that certainly is a consideration, but to protect US workers from being “undercut” by cheap labor from overseas. If you fail to pay the required wage, you can become liable for back pay (the difference between the required wage and the H-1B worker’s actual wage) plus a $1,000 fine per violation.
You can classify the H-1B worker’s position by comparing the job description with the Department of Labor’s Dictionary of Occupational Titles (DOT) found in the LCA instructions. Be careful, this can be tricky and it is important to get it right.
The actual wage is the wage rate that the employer pays to all workers at the H-1B worker’s place of employment who possess experience and qualifications that are equivalent to those of the H-1B worker. You can calculate this using company records.
The prevailing wage is within five percent of the wages paid to workers in the same location who are similarly employed in an identical or similar occupation. This calculation requires access to industry-wide information. The Department of Labor of your state government may have compiled such statistics; otherwise, you will need to do some research. Be certain to use authoritative information to back up your claim.
Once you have determined the actual wage and the prevailing wage, simply choose whichever one is higher. That is the required wage.
Please keep in mind the following:
The risk of submitting a defective LCA petition extends to more than just rejection of your application, which can always be re-submitted. Even if your LCA is accepted, completing it in a less than ideal fashion might significantly limit your options over the next three years. Contact an experienced immigration lawyer to answer any questions you might have.
Client: Marketing Company in Cleveland, Ohio
Client’s Country of Origin: India
Case Type: H-1B Visa
Date of Application: February 18, 2015
Date of Approval: March 11, 2015
Background:
Herman Legal Group was retained by our client’s parent company. We first applied for labor certification for this beneficiary’s position, and acquired approval early in March, 2015. Upon receiving the labor certification, we quickly submitted H-1B application on behalf of our client.
Challenge:
Time was of the essence. Labor certification must be filed timely so that the approval to hire an alien may arrive before submitting the application. We filed the labor certification early, received the approval in time, and filed the H-1B application on time.
Action:
We helped our client prove that the choice candidate met all criteria. She received advanced training, was a member of a profession that required application of a specialized body of knowledge, and the offered salary satisfy the prevailing wages of the intended area of occupation. Moreover, with the passage of labor certification, we already helped prove that there was no able, willing and qualified U.S. worker available for the position at the time.
Result:
In less than a month, our client’s choice software engineer was granted H-1B status to work for three more years in Texas.
The global economy has changed. The old has given way to the new and as always, the law struggles to catch up. When it comes to H-1B status, however, US immigration law is making a valiant effort to keep up with the times. If you are in the US in H-1B status, you enjoy a benefit called “H-1B portability” — subject to certain restrictions, you can change jobs without having to leave the US and start the H-1B visa process all over again.
Strictly speaking, there is no such thing as a legal transfer from one job to another on the same H-1B visa status. What you can do, at least under certain circumstances, is have your new employer petition for a new visa and wait for the USCIS to issue a Receipt Notice for the petition, indicating that it has received it. You can start working as soon as you receive the Receipt Notice, as long as you are in legal status at that time.
You generally don’t need permission from your old employer to have a new employer file a new H-1B petition on your behalf (although some employees are subject to non-compete agreements, etc.). If things go smoothly, you won’t be required to leave the US while you are waiting for the Receipt Notice. A new H-1B petition will not extend the total amount of time you are permitted to stay in the US, however.
If you lose your job, the USCIS allows you an automatic 60-day grace period, during which you can apply for new work without falling out of status and being required to leave the US.
A few caveats apply:
If the USCIS denies your H-1B transfer petition, you can remain at your old job if your employer will accept you. You can also appeal the denial, or you can leave the US and apply for a new visa from abroad. Keep in mind that if you are attempting to transfer to a new job because you anticipate that your old employer is planning to lay you off, your old employer may be willing to help you make a smooth transition because that would relieve him of the responsibility of paying for your trip home.
H-1B “bridging” means submitting more than one H-1B petition through more than one employer so that you have two or more H-1B petitions pending at the same time. You might want to do this if you seek multiple jobs offers so that you can choose the best offer among them.
Certain limitations apply. You won’t be able to use bridging to keep resetting the 60-day grace period clock to zero, for example. Additionally, multiple petitions are not considered independent of one another — a later petition can be rejected based on the rejection of an earlier petition. A single employer is not allowed to file more than one H-1B petition for the same employee (for two different positions, for example) unless the position is not subject to any H-1B cap.
Some employers, especially in the IT industry, try to game the system by hiring an H-1B worker for the purpose of outsourcing him to various third-party employers on a project basis. Many of these employees are not working and remain unpaid most of the time. The USCIS considers this “benching” behavior an abuse of H-1B status, and if you submit a new H-1B petition, it is likely to demand pay stubs to prove that you and your employer are not involved in “benching.”
Despite the great increase in flexibility generated by H-1B portability, limitations do exist, and a major mistake could not only shut down a promising opportunity for you, in some cases, but it could also result in you losing legal visa status in the US and being ordered to return home. A skilled H-1B immigration lawyer can help you drastically reduce these legal risks.
One of the main benefits of H-1B status is its tolerance of “dual intent” — the ability of an H-1B worker to apply for and obtain permanent residence in the US without having to leave the US and wait abroad for an immigration visa to be approved. It is even possible to continue working without a break if you are careful about preparing and filing your application. The petition process involves quite a bit of paperwork, however. Following is a brief overview of the process.
For many if not most H-1B employers, their sponsor is their H-1B employer who wishes to retain their services permanently. In any case, it is your sponsor who must initiate the permanent residence procedure on your behalf — you cannot do it yourself. Although the entire process takes quite some time and can vary greatly on a case-by-case basis, you will be in legal immigration status as soon as your sponsor receives a USCIS Receipt Notice.
The Program Electronic Review Management (PERM) system is an electronic system that allows you to obtain a labor certification from the US Department of Labor. Like the LCA that the H-1B employer obtained as a part of the H-1B petition process, PERM certification is designed to assure the Department of Labor that the employment will not adversely affect US workers.
To obtain PERM labor certification, you must:
The employer must file Form I-140 with the USCIS. The employer will probably file the I-140 in the second or third employment preference, because it is these two preferences that generally correspond to the skill level of an H-1B worker. In many cases, this means no special delay before processing begins. Workers from China, Mexico, India, or the Philippines can face delays of several years before a visa number is issued and processing begins.
The filing fee for Form I-140 is $700, and approval means that the USCIS has classified the employee as eligible for permanent residence. It does not grant permanent residence by itself, however.
The H-1B worker himself must file Form I-485 with the USCIS to adjust his status to permanent resident. The total filing fee, including the biometric services fee (for fingerprinting), is $1,225. Once this petition is approved, an employee located in the US is allowed to live and work permanently in the US. The employee must be in legal status at the time he files Form I-485.
The USCIS permits Form I-140 and Form I-485 to be filed together, at least for most H-1B visa holders and certain other applicants. If you file Form I-140 and the USCIS replies that you will have to wait for a visa number to become current before processing can begin, you can file Form I-485 as soon as your visa number becomes current. Once you file the I-485, you can apply for advance parole, which will allow you to leave the US temporarily and return.
The USCIS must issue a Receipt Notice for Form I-485 while you are still in legal immigration status for the employee to remain in legal status.. Once this occurs, the employee may remain in the US while waiting for the I-485 to be approved. If the employee’s status expires earlier, he will be expected to leave the US and wait for approval of the I-485 while located abroad. In this case, an additional step will be required — the employee must apply for an immigration visa at a US embassy or consulate abroad. This step will involve a significant amount of preparation.
Since the transition from H-1B to permanent resident can take anywhere from a year to over a decade, committing a serious mistake in the application process is not an option — the stakes are simply too high for that. It is critical that you contact an experienced immigration lawyer well before your current H-1B status expires.
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