H-1B Visas

H-1B VISAS:

There are two requirements for an H-1B visa: (1) The occupation must require at least a bachelor's degree; (2) The foreign professional should have the US equivalent bachelor's degree (4 years) in a field related to that occupation. The exception is when you get an equivalency evaluation that says your work experience in the field is equal to a 4 year bachelor's degree. Three years of work experience in the field is equal to one year of college. An evaluation from a professional service that evaluates work experience and/or foreign degrees would be able to determine whether your work experience and college degree would be enough for obtaining H-1B.

An H-1B visa may be issued to an alien who is coming temporarily to the United States to perform services in a specialty occupation as defined in the Immigration and Nationality Act. The applicant for an H-1B visa must first receive an offer of employment from a US company, which company must file a visa petition on his or her behalf.

The petition is filed with the Immigration and Naturalization Service Center having jurisdiction over the place where the alien will be employed, on immigration form I-129, together with the H supplement, and immigration form I- 129W. When the petition is approved, it is forwarded to an American consulate abroad, where the alien will apply for his or her H-1B visa. If the alien is in lawful status in the United States, a change of status can be granted without the need to travel outside of the country to obtain the visa. An alien with an H-1B visa or status may be recognized as having a dual intent. This means that the alien may qualify for an H-1B visa even if he or she has evidenced an intention to reside in the United States permanently at some future time. This dual intent doctrine is applicable only to aliens who have an H-1B, E, O, P, or L visa.

As stated above, an H-1B visa can be issued only to aliens in a specialty occupation. It has been determined by the immigration service that members of the professions, whose job duties require a professional person, qualify as aliens in a specialty occupation, such as architects, engineers, lawyers, doctors, and teachers. There are many other occupations that can qualify for professional status. These generally require at least a minimum education, equivalent to a BA or BS degree from a university in the United States. (A list of occupations, which the immigration service has determined to be professional, is included on our web site.)

The professional qualifications of an alien are generally established by showing that he or she has at least a BA or BS degree from an American university in the field in which he or she will be employed.

If the alien has a degree from a foreign university, it will be necessary to have that degree evaluated by a professional evaluating service, to determine whether it is equivalent to at least a BA or BS degree from a university in this country. If an alien is coming to the United States to engage in a profession which requires licensing, he or she must meet all the necessary licensing requirements in order to be eligible for an H-1B visa, since the alien must be immediately available to engage in the employment outlined in the petition.

The LCA is valid for a maximum period of three years. This means that the validity period of an LCA may not exceed the validity period of an H-1B petition which is also three years. H1 status is valid for 6 years. Every new company has to file its own H-1B Petition.

Prior to filing an H-1B petition, the employer must file with the US Department of Labor a Labor Condition Application (known as an LCA). The employer must attest in the LCA that it is offering to the H-1B employee the higher of either: (a) the actual wage the employer pays to other individuals similarly employed with similar experience and qualifications, or (b) the prevailing wage for that position in the geographical area of employment based on the best information available. The employer must also affirm that the working conditions for the H-1B worker will not adversely affect the working conditions of other workers similarly employed; that there is no strike, lockout, or work stoppage in the course of a labor dispute; that the employer has given its employees notice of the filing of the LCA through posting or notice to a bargaining representative, if applicable; that the employer did not displace and will not displace a US worker employed by the employer within the period beginning 90 days before and ending 90 after the filing of the H-1B petition; that the employer has taken good faith steps to recruit for the position in the United States using industry-wide standard practices; has offered the job to any US worker who applies and is equally or better qualified than the H-1B worker; and that the employer has provided, or will provide, a copy of the LCA to the H-1B worker. Furthermore, the employer must affirm that if the H-1B alien is dismissed before the end of the period of authorized stay, the employer will be liable for the reasonable costs of return transportation of the alien abroad to his or her last place of foreign residence. Any type of dismissal is covered, including one for cause. The only exception is where the alien voluntarily terminates employment.

In addition, the US employer must pay a $1000.00 fee that will be used to fund training programs to help eliminate US employers' reliance on foreign workers. This fee, and form I-129W, must accompany all petitions for new employment, and for the first extension petition filed by an employer for a particular H-1B employee. Under the statute, the employer must pay this fee. The employer cannot require or accept reimbursement for the fee from the employee, or risk a fine of $1000.00. Institutions of higher education and their related or affiliated non-profit entities, other nonprofit research institutions and government research institutions are not required to pay the fee.

Also not required to pay the fee are primary and secondary schools, as well as non-profit organizations engaged in curriculum-related clinical training of students registered at an institution of higher education.

When the alien is admitted to the United States in H-1B status, or upon a change of status within the United States, the alien may begin employment with the petitioning company in the job specified on the petition. The alien may not change employers, nor significantly change his or her job duties within the company, without first filing a new petition. He/she does not have to wait for the petition to be approved. The petition must be non-frivolous, and the beneficiary must be a non-immigrant admitted to the US (no particular non-immigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B status), must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed.

Upon obtaining an H-1B visa, the spouse and children of the principal alien are entitled to H-4 status. At the present time, the H-1B and H-4 visas are issued for an initial period of three (3) years, and an extension of three (3) years may be granted by the Immigration Service.

A new provision added October 17, 2000 allows a further extension in two circumstances: a) a beneficiary of an employment-based first, second, or third preference petition who is eligible for permanent residence, but for the application of the per-country limits, may obtain extension of the H-1B status until the adjustment of status is decided; and b) an H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.

Also, the State Department in Washington, DC, may reissue an H-1B visa without the need of the alien to travel outside of the United States in order to have the visa placed in his or her passport. H-4 aliens may not be employed in the United States, and their status is valid only as long as the principal alien is validly in status. If an H-1B petition is denied, the prospective employer may appeal the decision to the Administrative Appeals Office. However, the denial of an extension of stay is not appealable and may only be contested by an appropriately filed motion to reopen or reconsider.

President Clinton Signs New H-1B Law, October 17, 2000: S.2045, the "American Competitiveness in the Twenty-First Century Act of 2000" increases the existing visa quotas as follows: FY 2000 -increase from 115,000 to 195,000 FY 2001-increase from 107,500 to 195,000 FY 2002 -increase from 65,000 to 195,000. All H-1B petitions received by INS on or after December 18, 2000, and before October 1, 2003, must be accompanied by a $1,000 fee in addition to the $110 filing fee.

INCREASED PORTABILITY OF H-1B STATUS. Persons previously issued a visa or otherwise provided H-1B status can accept new employment upon the filing of a new petition by a new employer, subject to the final approval of the petition. If the petition is denied, work authorization ceases. In order to be eligible for this provision, the individual must have been lawfully admitted to the United States, the new petition must have been filed before the expiration of the period of stay authorized by the Attorney General and the individual must not have been employed without authorization in the United States before the filing of such petition. Employees who now hold H-1B status but want to change companies, and their future petitioning employers, are the primary beneficiaries of this expanded portability.

Sponsor: Sen Hatch, Orrin G. (introduced 2/9/2000) Latest Major Action: 10/17/2000 Became Public Law No: 106-313. Title: A bill to amend the Immigration and Nationality Act with respect to H-1B nonimmigrant aliens. SUMMARY AS OF: 4/11/2000--

Increases available nonimmigrant H-1B specialty occupation visas for FY 2000 through 2002.

(Sec. 3) Amends the Immigration and Nationality Act to exempt from H-1B numerical limits an alien: (1) who is employed at an institution of higher education or related nonprofit entity, nonprofit research or governmental research entity; or (2) for whom a petition has been filed within a specified time before or after attainment of a master's or higher degree from a U.S. institution of higher education.

(Sec. 4) Makes employment-based immigrant visas available on a quarterly basis without regard to per-country limitations if unused visas are available. Authorizes a U.S.- residency extension for a nonimmigrant alien for whom an employment-based immigrant petition has been filed but who is subject to the per-country limit until resolution of such alien's application for status adjustment.

(Sec. 5) Authorizes a qualifying H-1B alien to accept new employment upon a prospective employer's filing of a new petition, which shall last until such petition's adjudication. To be eligible for this benefit, Section 105 requires that the H-1B holder was lawfully admitted; that the petitioning company filed a non-frivolous petition prior to the status expiration; and that the H-1B alien was not unlawfully employed after admission into the U.S.

(Sec. 6) Provides for one-year extensions of authorized H-1B stay in cases of permanent residence adjudications lasting 365 days or longer.

(Sec. 7) Extends: (1) attestation and fee requirements under such Act through October 1, 2002; and (2) investigative authorities under the American Competitiveness and Workforce Improvement Act of 1998 through September 30, 2002.

(Sec. 8) Provides, with respect to nonimmigrant visa petitions subject to numerical limits, for the numerical restoration of such visas fraudulently obtained, effective for the fiscal year of petition revocation.

(Sec. 9) Directs the National Science Foundation to conduct a study of the divergence to high technology access (digital divide).

(Sec. 10) Amends the Immigration and Nationality Act with respect to the allocation of H-1B visa fees from the Treasury H-1B Nonimmigrant Petitioner Account to: (1) reduce amounts for job training, and mathematics, engineering , or science enrichment courses; and (2) increase amounts for low- income scholarships for mathematics, engineering, or computer studies. Amends the American Competitiveness and Workforce Improvement Act of 1998 with respect to such low-income National Science Foundation scholarships to: (1) increase maximum amounts; and (2) authorize four-year extensions. Amends the Immigration and Nationality Act to obligate Account amounts to the Foundation in support of private-public education partnerships in K-12 math, science, and technology. Amends the American Competitiveness and Workforce Improvement Act of 1998 to direct the Foundation and the Department of Labor to monitor H-1B grant programs.

(Sec. 11) Kids 2000 Act - Directs the Attorney General to make grants to the Boys and Girls Clubs of America for after-school technology programs, such as PowerUp. Authorizes FY 2001 through 2006 appropriations. Authorizes the Violent Crime Resolution Trust Fund as a fund source.

H1 Work prior to Approval: Anyone awaiting approval of an H-1B transfer may legally begin to work for their new employer. An H-1B visa holder may begin to work for a new employer when a non-frivolous, legally viable H-1B petition is submitted, and no longer must wait for approval before doing so. Prior law required that a worker wait until the petition was approved before changing employers. If denied, the authorization will be terminated. Under the law prior to October 17, 2000 a person on an H-1B with one specific employer was not allowed to work for another employer, unless and until the person obtained a second H-1B approval for the other employer. INS had consistently maintained the position that one can only start work on an H1 status after obtaining the approval, but S.2045 makes this unncessary.

For H-1B visa holders with a pending employment-based green card, and who filed a labor certification or I-140 at least one year prior, the six year time limit is waived, with extensions granted in one year increments until the green card petition is either approved or denied. Section 104(c) allows ANY alien (1) who is the beneficiary of a FILED EB-1, EB-2 or EB-3 visa petition; and (2) would be eligible to apply for permanent residence except for the application of per-country limitations (e.g. born in India or mainland China) to apply to the INS for extensions of nonimmigrant status until his or her adjustment of status application has been adjudicated. The law states that the application "may" be approved.

After an application for adjustment of status for a person sponsored under an EB category remains unadjudicated for over 180 days, the individual is free to change jobs as long as the new job "is in the same or a similar occupational classification as the job for which the petition is filed".

The H-1B cap will no longer impact any foreigner who is employed--or has a written offer of employment--by a university, college or related nonprofit organization. Neither will nonprofit or government research organizations be subject to the quota. Once a person under these categories leaves the related position, however, they do become subject to the H-1B cap once again, unless the subsequent employer is likewise exempt. Secondly, for those with a petition filed no more than 90 days prior and no more than 180 days following the completion of a graduate degree, the cap will not be applicable.

There is a new Fee for H-1B petitions: All H-1B petitions received by INS on or after December 18, 2000, and before October 1, 2003, must be accompanied by a $1,000 fee in addition to the $110 filing fee.

The fee will be collected for the following three types of cases:

(1)- an initial grant of H-1B status; ( Instructions for Form I-129)

(2)- an extension of stay for individuals currently in H-1B status (only for the first extension request by an employer)

(3)- authorization for a change in employment for individuals currently in H-1B status. The INS notes that the limit to charging the fee for the first extension request is specific to the employer. So, for example, Employer A files for an extension and pays the fee, the employee switches to Employer B who pays the fee at the time of the filing of the change of status application and then Employer B would again have to pay the fee if it applies for an extension.

The $1000 fee is employer dependent. Thus, if the alien worked for Company A, which paid the $1000 fee, and then wanted to switch employers, in all situations Company B would also have to pay the $1000 fee.

The INS will accept two checks, one for $110 (the base filing fee) and one for $1000. The Service must receive both of these checks at the same time. The check for $1000 must come either from the employer or its representative of record.

Certain employers are exempt from paying the $1,000 fee, including any employer that is: A primary or secondary education institution, An institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a), A nonprofit entity related to or affiliated with any such institution, A nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution, or A nonprofit research organization.

The research organization does not have to be affiliated with an institution of higher learning. The INS uses the same definition of "institution of higher education" included in Section 101(a) of the Higher Education Act of 1965. Nonprofit affiliates will include hospitals and medical or research institutions connected or associated with universities through shared ownership, control by the same board or federation operated by a university, or attached to a university as a member, branch, cooperative, or subsidiary. A "nonprofit or governmental research organization" includes entities primarily engaged in basic research and/or applied research or a US government entity whose primary mission is the performance or promotion of basic research and/or applied research. Employers exempt from the $1000 fee must submit the new Form I-129W with their applications for H-1B workers.

All H-1B petitions filed on or after March 30, 2000 must be accompanied by Form I-129W: This new form requires the petitioners to supply information on the H-1B position, the industry of the petitioning employer and the named H-1B worker's highest level of education, compensation, and country of origin. This information will be entered into CLAIMS3 and will be used to meet the reporting requirements specified in ACWIA for Fiscal Year 2000.

Situations in which the $1000 fee is not required. These are:

-An amended petition that does not request an extension;

-A petition filed solely to correct an INS error;

-A second or subsequent petition, regardless of whether the fee was required in previous filings.

Along with the I-129W, the employer must submit proof that it is exempt based on the requirements noted above. If the employer claims to be exempt from the fee, it must submit evidence to that effect, and must also provide a statement detailing why the fee is not required.

F-1 STUDENT VISAS:

The definition of a student is one who has a residence in a foreign country which he or she has no intention of abandoning, and who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States, which program must have been approved by the immigration service.

In order to be admitted to a school as an F-1 student, the alien must first obtain from the school's foreign student advisor an immigration form known as an I-20. In addition to meeting the academic qualifications, the prospective student must also submit evidence of sufficient financial support for the period of the academic program. When the school issues this form to the student, it is an indication that the student has met the necessary qualifications for admission to the school. However, the student must then apply for an F-1 visa at a US consul if they are outside of the United States, or they can apply for change of status with the immigration service if they are in lawful immigration status in the United States. This application is made on immigration form I- 539. It must be accompanied by the approved I-20 form, as well as evidence that the prospective student has sufficient funds to support himself or herself in the United States for the duration of studies. In other words, the immigration service wants to be sure that the student will not have to resort to unauthorized employment in order to pay for their schooling or living expenses while attending school.

When the application for change of status is approved by the immigration service, or when the student enters the United States with an F-1 visa, the student is admitted for the duration of their status as a student, which is noted as "D/S" on their entry document.

In order to maintain student status, the student must attend school on a full-time basis, which generally means 12 academic credit hours per semester. There may be exceptions, such as when a student is ill and unable to attend on a full-time basis, when a graduate student is working on a thesis, or during the school's annual vacation.

As a general rule, a student is not permitted to be employed while studying in the United States. However, there are some exceptions. The first is on-campus employment. If a student is otherwise maintaining status, he or she may work on the school's premises up to 20 hours per week while school is in session, and full-time during breaks and the student's annual vacation.

The second type of employment for an F-1 student is known as the pilot off-campus employment program. In this program, the foreign student advisor may authorize off-campus employment with a qualifying employer for any F-1 student who has been in F-1 status for one full academic year and is maintaining both valid F-1 status and good academic standing. The student is allowed to work up to 20 hours per week during school sessions and full-time during holidays, breaks, and the student's annual vacation. The prospective employer must meet several requirements in order for it to be included in the program, including evidence that it has recruited unsuccessfully for the position which the F-1 student will occupy for at least 60 days, and that the F-1 student will be offered wages and working conditions which are similar to others currently working in similar positions.

The third type of employment is employment based on severe economic hardship. This is provided for students who must work due to unforeseen economic hardship. Students may apply for this form of work permission if they have been attending school for one full academic year; are in good academic standing and are carrying a full course of study; can show unforeseen severe economic hardship; and the acceptance of employment will not interfere with the student's continuing in a full course of study. The foreign student advisor must certify on immigration form I-538 that he or she concurs in the student's need for employment. The application is filed with the local immigration office, together with immigration form I-765 (Application for Employment Authorization.) The student may begin employment upon approval of the employment authorization request, which is usually issued for a period of one year.

The fourth type of student employment is known as curricular practical training. This is defined as employment that is an integral or important part of the F-1 student's curriculum, and includes such employment as work/study programs, internships, and cooperative education programs. This usually includes employment that is required to complete any degree requirements. The foreign student advisor may designate the program as either full time or part time.

The fifth type of employment authorization is known as optional practical training. Optional practical training must be related to the student's major area of study and is limited to a period of 12 months. However, it is not necessary that the student have a pre-existing offer of employment. While optional practical training is usually issued after the student has completed his or her course of study, it may be granted while school is in session, during the student's annual vacation, or during the time that the student is in the process of completing his or her thesis. The foreign student advisor must sign immigration form I-538, and the application is filed with the immigration service center having jurisdiction over the student's place of residence.

The Immigration Act of 1996 made significant changes to the F-1 student program. A new provision added to the Act states that an alien may not be accorded status as a nonimmigrant student to pursue a course of study at a public elementary school, or in a publicly funded adult education program, or at a public secondary school, unless the total period of such status at such a school does not exceed 12 months, and the alien demonstrates that he or she has reimbursed the school for the full cost of providing education at such school for the period of the alien's attendance. In addition, an alien student who transfers from a private elementary or secondary school or from a language training program that is not publicly funded, to a public school, shall be considered to have violated their status, and the alien's F-1 visa shall be void, unless they pay the full cost of the public education program which they will be receiving. Another provision of the act states that an alien who obtains the status of a nonimmigrant student and then violates a term or condition of said status may not be readmitted to the United States for a period of five (5) years following the date of the violation.

The dependent spouse and unmarried children of F-1 students will be granted F-2 status. An F-2 may remain in the United States for the duration of the F-1's valid status and may engage in any lawful activity, including the right to study. However, F-2 aliens are not permitted to be employed in the United States.

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