H-1B

Law Summary Overview

1. What is an H-1B?

The H-1B visa is a nonimmigrant classification that applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to the Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.  It allows nationals from other countries to come to the United States to work for a temporary period.

The H-1B visa status can be requested in three-year increments.  The maximum amount of time a person can be in H-1B status is six years.  In certain circumstances, extensions beyond the six-year maximum is allowed.  Specifically, those who are pending employment-based permanent residence are allowed to extend their H-1B until they receive their “green card.”

A Labor Condition Application must be certified by the Department of Labor (DOL) before filing the I-129 petition.

Once the H-1B petition is filed, it can take anywhere from two weeks (if filed with Premium Processing) to nine months for the H-1B to be adjudicated.    Filing with Premium Processing ensures adjudication within 15 days.  The government filing fee is an additional $2,500 for Premium Processing.

2. Who can file an H-1B?

Employers who are physically located in the United States can file H-1B petitions on behalf of their prospective employees.  The employer must reside in the United States and should have an employer-employee relationship with the foreign national worker.  The employer should have an I.R.S. tax identification number.  A corporation can file for its owner or director as long as he/she is qualified under the H-1B regulations.

3. What are the qualification requirements of the employee?

For the H-1B specialty occupation position, the employee should have a Bachelor’s Degree in the field of study related to the position for which he/she is seeking H-1B. In addition, the employee must be licensed to practice in the position sought, if applicable. Certain positions require a license to practice in a particular state (e.g. Attorney, Architect, and Teacher).

Thus, in order for an employee to qualify to perform service in a specialty occupation, the employee must meet one of the following criteria:

1. Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
2. Hold a foreign degree that is equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
3. Hold an unrestricted state license, registration, or certification that authorizes the individual to fully practice the specialty occupation and be immediately engaged in the specialty in the state of intended employment
4. Have education, specialized training and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and have recognized expertise in the specialty through progressively responsible positions directly related to the specialty

4. What type of positions qualify as an H-1B Specialty Occupation?

The term specialty occupation is defined by the Federal Regulations as an occupation that requires:

1. Theoretical and practical application of a body of highly specialized knowledge; and
2. Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

5. What qualifies the position to be considered a Specialty Occupation?

The position must meet one of the following criteria:

1. Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position
2. The degree requirements is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
3. The employer normally requires a degree or its equivalent for the position
4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree

6. When can an H-1B petition be filed?

An H-1B petition cannot be filed more than 6 months in advance (April 1 of each fiscal year).  The H-1B visa is subject to a numerical limit each fiscal year.  The fiscal year runs from October 1 to September 30.  The current numerical limit is 85,000 visas.  20,000 visas are restricted to those who hold a U.S. Master’s Degree or higher, 1,400 visas are reserved for nationals of Chili, and 5,400 visas are reserved for nationals of Singapore.  This quota is commonly referred to as the “H-1B CAP.”

7. Are all applications for H-1B counted against the numerical limitation?

8. When can an employee start working for the company?

The candidates outside the United States/changing status to H-1B can begin on October 1st if their H-1B petition is approved.  The candidates outside the United States must apply for a visa and enter the United States on or after October 1st.  The candidates filing a change of status can work from October 1st.  If the H-1B quota is open after October 1st, then the beneficiary can start working from the start date of the petition.

A person on an H-1B status may accept new employment upon the filing of a new petition by the prospective employer if:

1. He/She was lawfully admitted;
2. The new petition is “nonfrivolous”;
3. The new petition was filed before the date of expiration of the period of stay authorized; and
4. Subsequent to such lawful admission, the H-1B beneficiary has not been employed without authorization before the filing of such petition.

9. What are the government filing fees for filing the H-1B Petition?

The basic fee for an H-1B petition is $460.  A U.S. employer filing an H-1B petition must submit the $460 petition filing fee and, unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement, an additional fee of either $750 or $1,500.  An employer with a total of 25 or less full-time equivalent employees in the United States (including any affiliate or subsidiary of the employer) is only obligated to pay the $750 fee.  An employer with a total of more than 25 employees is obligated to pay the $1500 fee. The companies that file an extension for an employee do not have to pay the fraud prevention fee.  For all 2nd and subsequent extensions, the company does not have to pay the $750 or $1500 fee.

Additionally, the Public Law 114-113 requires the submission of an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions.  The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the United States in H-1B, L-1A or L-1B nonimmigrant status.  The H-1B petitioners subject to the law must submit the fee with any H-1B petition filed:

• To seek initial nonimmigrant status for an alien described in subparagraph (H)(i)(b) of INA section 101(a)(15), or
• To obtain authorization for an alien having that status to change employers.

The new fee does not apply to extension requests filed by the same petitioner for the same employee.

10. What salary must be paid to the employee on H-1B status?

Generally the employer must pay the wage greater of the minimum prevailing wage for the position offered for the metropolitan area of intended employment or the actual salary for the position for that employer.  The prevailing wage can be obtained from the U.S. Department of labor or from the private survey companies.

11. When is an amended petition required?

An amended petition is petition is required if there is a material change in one or more of the following:

1. The employee begins working in a new metropolitan area and a New Labor Condition Application was not filed prior to the change of location.
2. The employee’s duties changed from one specialty occupation to another.
3. There are material changes to the terms and conditions of employment.

An amended petition is not required if:

1. The company undergoes corporate restructuring including spin off, merger, acquisition whereby the new entity assumes the immigration obligations of the previous entity.
2. The name of the company changes but the terms and conditions of the employment do not undergo any change.
3. There is no significant material change in employment conditions. For example, if the salary is increased, there would be no need to file an amended petition.

Amended petitions are not subject to the numerical limitation and therefore can be filed at any time.

12. What is the employee’s status upon H-1B termination?

H-1B employment is at will employment.  An employee on H-1B status is immediately out of status upon termination of employment.  Contrary to popular opinion there is no grace period.  The employer should immediately notify the USCIS of the termination of the H-1B.  The employee’s H-1B status is terminated upon the termination of employment and is not extended by the payment of severance pay.

If the company has a Reduction in Force (RIF) policy and gives the employee severance pay, the H-1B is out of status from the day s/he stops employment and not when his/her severance pay ends.