Areas of Practice | H-1B Visas

Overview

The H-1B is a nonimmigrant classification used by a foreign national who will be employed temporarily in a specialty occupation. The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. Current laws limit the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000. The statute requires that sponsoring employers file a Labor Condition Application with the Department of Labor (or DOL).

The Labor Condition Application can be found at:

http://www.dol.gov/libraryforms/go-us-dol-form.asp?FormNumber=5

Validity Period

The H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA) for up to three (3) years, and may be extended for an additional three (3) years, for a total of six (6) years.

A foreign worker can be in H-1B status for a maximum continuous period of six years.

After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved.

Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments.

Qualifying Criteria

In order to hire a foreign worker on an H-1B visa, the job must be a professional position that requires, at a minimum, a bachelor’s degree in the field of specialization. The occupation for which the H-1B classification is sought must also normally require a bachelor’s degree as a minimum for entry into the occupation.

A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties, etc…)

A foreign worker may also qualify if they are a fashion model of distinguished merit and ability.

Employer Responsibilities regarding H-1B petitions

  • The employer shall submit a completed Labor Condition Application (LCA) in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer’s responsibilities, including the wages, working conditions, and benefits to be provided to the nonimmigrant;
  • The employer shall make the LCA and necessary supporting documentation available for public examination at the employer’s principal place of business in the U.S. or the place of employment within one working day after the date on which the LCA is filed with ETA;
  • The employer may then submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (USCIS) with a completed petition requesting H-1B classification;
  • The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant that is already in H-1B status and is changing employment, to another employer until the new employer files a petition supported by a certified LCA; and
  • The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request.
  • Each LCA must be submitted electronically via the Department’s LCA Online System.
  • The LCA will be returned not certified to the employer or the employer’s authorized agent or representative when either or both of the following two conditions exist:
    • When Form ETA 9035E is not properly completed; and
    • When Form ETA 9035 or Form ETA 9035E contains obvious inaccuracies.
  • If the LCA is returned for correction, the employer or their designated representative may correct or resubmit their original application. Any resubmissions will be processed as if they are new requests (first come, first served basis).

Foreign Worker Responsibilities

H-1B status requires a sponsoring U.S. employer; an individual cannot gain status on his/her own. First, the employer must complete the above mentioned steps. The employer must also determine the prevailing wage for the position using one of the following methods of determination.

  • Using a determination for the occupation and area issued under the Service Contract Act of the Davis-Bacon Act;
  • Using a rate set forth in a collective bargaining agreement;
  • Requesting that a SWA prevailing wage determination be made;
  • Using a survey conducted by an independent authoritative source; or
  • Using another legitimate source of information.

A foreign worker need not be working full time for the entire period, and may travel in and out of the country as they see fit as long as H-1B status is maintained.

H-1B status is lost if the employer changes the foreign workers job to be outside the scope of their applied for H-1B status, or if the employer terminates the worker.

If an H-1B status immigrant desires to remain in the United States permanently they may adjust their status accordingly. Please reference our Status Adjustment page at http://strasserasatrian.com/practice.php?catp_id=28.

To inquire about the filing an H-1B Petition or further questions regarding H-1B Petitions, please contact our Newark, NJ office at (973)735-2716.