The H-1B visa program permits companies or organizations in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in a specific specialty or its equivalent. By regulation, certain fields, such as architecture, engineering, medicine and health, education, law, and accounting, more than likely satisfy the definition of a specialty occupation. An individual may be eligible for an H-1B visa if the occupation normally requires a bachelor’s degree or higher in a related field of study, and the Employee has at least a bachelor’s degree or equivalent in a field related to the position.
Six Year Maximum
The H-1B visa may be granted in increments of three years or less. The normal, maximum period of stay is six years. In certain circumstances, the H-1B worker may be eligible to extend his or her status beyond six years. An extension beyond six years may be possible if:
- The H-1B worker is the Beneficiary of an approved I-140 petition but cannot adjust status to a lawful permanent resident due to the unavailability of immigrant visa numbers;
- The H-1B worker is the Beneficiary of a pending labor certification application (PERM) or an I-140 petition that was filed at least 365 days prior to the date the H-1B worker will have exhausted the six-year period on H-1B status;
- The PERM or I-140 petition that was pending for at least 365 days prior to the expiration of the H-1B status has been denied and a timely appeal has been filed with USCIS or BALCA.
If the H-1B worker previously spent time on L-1 status, that time may count towards the available six-year maximum period of stay. Once the six-year cap is reached, the H-1B worker must remain outside of the United States for one year in order to reset the six-year clock. Thereafter, the H-1B worker must be selected and approved in a new H-1B lottery to obtain a new six-year period.
Obligations of the H-1B Employer
The H-1B Employer must serve as the Sponsor or Petitioner on Form I-129. The H-1B Employer must submit the following documentation with an H-1B petition: a certified Labor Condition Application; a statement that it will comply with the terms of the Labor Condition Application; and evidence that the individual qualifies to perform services in the specialty occupation position. There must be a real job opportunity for the H-1B worker- whether full-time or part-time. Additionally, specialty occupation work must be available for the H-1B worker for the duration of the requested H-1B validity period. Under the regulations, the H-1B petition is the property of the Employer.
Labor Condition Application and Wage Requirement
The H-1B Employer of an H-1B worker must file an LCA with the Department of Labor prior to filing the H-1B petition. By submitting and signing the LCA, the H-1B Employer agrees to pay the required wage to the H-1B worker for the duration of the requested validity period. The agreement to pay the required wage is enforceable by the Department of Labor.
H-1B Portability Rules
H-1B portability rules permit some H-1B workers to begin working for new H-1B Employers upon the filing of an H-1B petition. The portability provisions allow workers who are already in H-1B status to begin working for a new H-1B Employer as soon as the case has been properly filed with USCIS.
Workers who are not yet in H-1B status or who are not maintaining H-1B status may not use the H-1B portability rules. Instead, those H-1B workers must wait until the USCIS approved start date of employment.
H-1B Extension
An individual may be eligible for an extension of H-1B status if s/he is currently in valid H-1B status and will remain employed in a specialty occupation with the same employer. H-1B Employer may commence the H-1B extension process 6 months prior to the date upon which the H-1B status is set to expire.
H-1B Amendment
An H-1B amendment petition must be filed by the H-1B Employer to notify USCIS of material changes to the employment relationship. As noted, a material change may include movement outside of the geographic location listed in the original, certified LCA or other substantive changes to the H-1B worker’s wage, job title, or job description.
H-1B Registration
The H-1B Electronic Registration Process occurs each year in March. Under this process, H-1B Employers who are seeking to employ H-1B workers subject to the cap must electronically register and pay the $10 H-1B registration fee per candidate. USCIS uses a random, computer-generated system to make its selections. Thereafter, companies are notified of the selections through the online portal.
H-1B Employers are provided a 90-day filing period to submit the completed H-1B cap-subject petition. If the petition is approved by USCIS, the H-1B worker may commence work as of the starting validity date.
H-4 Dependents
Legal spouses of H-1B workers and unmarried children under 21 years of age are eligible for H-4 status. If the H-1B worker remains in legal status, the H-4 dependents are permitted to remain in the United States. Nevertheless, the H-4 dependents must also take appropriate steps to maintain and extend their H-4 status.
