Q. What is H-1B status?
A. H-1B status is a nonimmigrant (temporary) status for individuals who are coming into the United States temporarily to perform services as a professional in a specialty occupation. Individuals already in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a US employer on behalf of the intended employee.
Q. What is a specialty occupation?
A. A specialty occupation is defined as one that requires the theoretical and practical application of a body of highly specialized knowledge. These occupations require a bachelor’s or higher degree (or foreign equivalent) and include professions such as accountants, computer analysts, engineers, scientists, and architects. Of course, the beneficiary (the intended employee) must possess the required degree.
Q. How do you file for H-1B status?
A. An employer must first post at the site of intended employment notices containing specific required information. The employer may then file a Labor Condition Application (LCA) with the US Department of Labor (DOL) via an online system. Once the LCA is certified, the employer must then file the petition with United States Citizenship & Immigration Services (USCIS). The petition will include Form I-129, Petition for Nonimmigrant Worker, with the H Supplement and Data Collection forms, supporting documentation, and a copy of the signed and certified LCA. If the individual is already in the US in legal status, the petition may also request a change of status for the beneficiary. If the individual is outside of the US, or is not eligible for a change of status, the petition will ask the USCIS to send the approval to a US consulate so that the beneficiary may apply for an H-1B visa stamp. The beneficiary can use that visa to enter the US and acquire the H-1B status necessary to permit work for the sponsoring employer.
Q. What are the filing fees for H-1B petition?
A. Per the rules of the US Department of Labor (DOL), the employer must pay all the costs of the H-1B process. These costs include the legal fees, costs, and filing fees. All sponsors must pay the basic filing fee of $460. Sponsoring employers must also pay a training fee of either $1500 or $750, depending on the size of the workforce. (Employers with 25 employees or less are required to pay the lower training fee of $750.) This fee is due for the sponsor’s first petition and for the first extension petition submitted on behalf of a particular employee. The fee is not due for second or subsequent extension petitions submitted on behalf of a particular employee. Employers are also required to pay a $500 Anti-Fraud Fee with the initial petition filed on behalf of a particular employee. Petitioners who employ 50 or more employees in the US with more than 50% of those employees in H-1B or L status must pay an added $4000 filing fee for H-1B petitions. If faster adjudication is desired, employers (and on some occasions, employees) may pay a $1225 filing fee for “premium processing.” This means that no later than 15 days after the request is filed with USCIS, the petition will be approved or denied, or that the USCIS will issue a request for evidence or a notice of intent to deny the petition. All the USCIS’s filing fees are subject to change.
Q. What documents does the USCIS require for the H-1B petition?
A. The basic documentation supporting an H-1B petition will always include:
- A signed and certified labor condition application (LCA) from the DOL.
- Documentation that the job is a specialty occupation.
- Documentation that the beneficiary has the required degree, e.g., a copy of the individual’s college degree(s). If the employee has a foreign degree, it may have to be evaluated by a credentialing agency to establish that it is equivalent to a US bachelor’s degree or higher. In certain circumstances, it may be possible to establish that a beneficiary without a bachelor’s degree has an adequate combination of experience, training and education to equal the required degree.
- A copy of any required license to practice the occupation in the state of intended employment.
Additional documentation may be required, depending on the circumstances.
Q. Is there a required wage that must be paid to an H-1B employee?
A. Yes. The wage paid to an H-1B employee must be the higher of 1) the prevailing wage, which is generally set by the US Department of Labor (DOL) based on data for the wages for the occupation in the geographic area in which the employee will be employed, or set by a union contract (if any) for the position; or 2) the actual wage, i.e., the wage paid by the employer to similarly qualified employees in the occupation.
Q. How does an employer determine the prevailing wage for the occupation?
A. An employer may request a prevailing wage determination from the US Department of Labor (DOL). Wage data from an independent survey may be used if the survey meets the DOL’s strict requirements. Employers can also use the DOL’s worksheet and published wage data to assess the appropriate prevailing wage for a given position.
Q. May an H-1B beneficiary work for more than one employer at one time?
A. An H-1B beneficiary may work concurrently for more than one employer if each employer has filed a request for H-1B status for the employee. Some employees can work while a request is pending, but that will depend on a number of factors, and employers should confirm the availability of this option before putting any particular candidate to work.
Q. May an H-1B employee work part-time?
A. Yes. An H-1B employee may work part-time as long as the H-1B petition and labor condition application (LCA) indicate part-time employment and other H-1B requirements are met.
Q. How long does this petition process take?
A. The first step of the process, obtaining a certified labor condition application (LCA) from the Department of Labor (DOL), takes approximately 7 days once the required notice has been posted and the LCA has been filed. USCIS adjudications generally take 3-4 months but can take more or less time, depending on the relative priorities and workloads at the USCIS’s service centers. USCIS provides an option to pay an extra fee of $1225 and obtain premium processing of an H-1B petition. This expedited processing guarantees agency action within 15 days. The agency action can consist of adjudication (approval or denial of the petition) or issuance of a request for information or of a notice of the CIS’s intent to deny the petition. Where the employee already holds H-1B status, he or she may be able to start to work once the H-1B petition has been filed. The availability of this option should be confirmed with counsel before the employee starts to work.
Q. How long may an individual remain in H-1B status?
A. In most cases, an individual may remain in the US in H-1B status for a maximum of six years. The initial petition may be approved for up to three years, and subsequent requests for extensions may be approved for up to a maximum of an additional three years for a total of six years. A new six year period may be available to an individual if he or she has been outside the US for a year. It is also important to understand that the six years only includes time the beneficiary is physically present in the US in H-1B status. Time spent abroad can be added back into the permissible six year period. This means that if an employee takes a two week vacation outside the US, that two week period does not count against the employee’s permitted H-1B time. The two weeks can be recaptured in subsequent petitions to extend H1B status. For some individuals who travel abroad frequently, these absences can result in substantial periods of time being recaptured in a new H-1B petition.
The six year total cannot be extended by changing employers. In certain limited situations, an individual may obtain H-1B extensions beyond six years if a permanent resident case is pending or has been approved. As a practical matter, it is generally wisest to make sure that the permanent residence case is filed at least one year before the individual’s six years ends. Given how long such cases can take to prepare, it is wise to start the permanent residence case at least two to three years before the six year stay would be expected to end.
Q. What happens if the employment is terminated before the employee’s H-1B status expires?
A. If the employer terminates an H-1B employee’s employment before the end of the authorized period of stay, the employer is responsible for notifying USCIS and for providing return transportation of the employee to his or her last place of foreign residence. Upon termination, the employee loses legal status and may be required to leave the US. The employee may be able to remain in the US if the employee is able to obtain a different nonimmigrant status or find a new employer willing to file a new petition on his or her behalf on a timely manner. Given the sensitivity of these assessments, a beneficiary would be wise to consult legal counsel promptly to ensure that proper steps are taken.
Q. Can an H-1B petition be filed at any time during the year?
A. There are a finite number of H-1B slots available in any one year. The new allotment of H-1B visas are released on October 1st with the beginning of the new fiscal year. Employers may file for one of these slots six months in advance of the October 1st release date. While there was a decrease in the demand for visas during the economic downturn in the early 2000s, the applications in the past few years have far exceeded availability. When the cap is reached, no beneficiary may change status to H-1B until the new slots become available for the next fiscal year. Beneficiaries who were already counted against the H-1B cap can be sponsored by a new employer and are not subject to this annual limit.
Some employers can file for H-1B status even after the year’s H-1B allocation has been exhausted. These entities are called “exempt” entities and they can sponsor beneficiaries for H-1B status at any time, assuming all the H-1B criteria are met. Transferring from these exempt entities to non-exempt entities can be problematic. Exempt entities are generally defined as institutions of higher education and affiliated non-profits.
Q. What happens if there are changes in the job the H-1B worker is performing?
A. Job changes, either in duties or in work sites, may require a new labor condition application (LCA) and an amended petition. An employer’s failure to file for a new LCA and amended petition when required can put the employee out of status and violate the rules governing the H-1B program. Employers should seek guidance well before new duties are implemented and before a new work location is assigned.
Q. Must an employer establish that it cannot find a US worker for the position before it can seek H-1B status for a new hire?
A. No, the H-1B process does not generally require the employer to show that it cannot locate a US worker. There is an exception for employers who have been found to be willful violators of the labor condition application (LCA) regulations. These employers must make good faith steps to recruit US workers before they can file an LCA with the DOL.
Q. What is the immigration status of an H-1B employee’s family in the US?
A. A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are eligible for H-4 status. These family members generally may not accept employment in that status, but may attend school. There is a limited exception for H-4 spouses to seek employment authorization if their spouse (the H-1B worker) is the beneficiary of an approved I-140 Immigrant Petition or has received an extension of his or her H status beyond the normal six year limit. H-4 status is afforded to qualifying family members when they obtain and use an H-4 visa stamp to enter the US or if they seek and are granted a change of status to H-4 or an extension of stay in H-4 status in the US. The visa stamp is obtained at the appropriate US consulate; the change of status or extension of stay is granted by US CIS here in the United States, based on a petition filed prior to the expiration of the pertinent family member’s present status.