H-1B Info from Attorney Robert Baizer

An H-1B visa is available for a person coming to work in the U.S. in a temporary, professional job. The job should require at least a four year college degree, and the employer must pay at least the average wage for the occupation. Typically, the H-1B requires approval of three or four different government agencies, so an average of around three months processing time is needed before the visa can be issued and the applicant permitted to begin work. For those willing to pay the CIS' "Premium Processing" fee, the result can be obtained in less than fifteen days.  Most of the processing is done by our office, representing the prospective employer.  

The H-1B worker is usually granted an initial stay of three years, with possible extensions for up to six years total in H-1B status. Family members are eligible for nonworking H-4 visas. While here, the person may also go through another process to obtain permanent immigration status.

EMPLOYER REQUIREMENTS

The law imposes several requirements on H-1B employers. 

First, government filing fees for the visa are imposed (which vary according to the size & type of the employer - all employers, basic fee: $325; add-on for all employers filing first petition for the particular worker: $500; add-on, for most employers with under 25 workers - $750;  add-on for most employers with over 25 workers - $1500). Employers are barred from obtaining reimbursement for this expense from the H-1B workers.  (Many also opt to pay the CIS' Premium Processing fee, another $1,225, to assure CIS action on the application within 15 days.).  Extension applications have lower fee totals.

Second, employers must pay the H-1B worker either the average wage for the occupation in the geographic area of employment, or the average wage for the occupation within the company - whichever is higher.  Full benefits must also be given to H-1B workers. 

Third, employers must put the H-1B worker on the payroll within 30 days of the worker's entry into the U.S. with the H-1B visa. 

Fourth, no "benching" is allowed, the H-1B worker, if not laid off, must be paid whether work is available for him or not. Increased penalties for violations of the related rules have also been created.

Fifth, a set of rules for posting notices and record-keeping apply

The law creates a special class of employers, so called H-1B dependent employers, subject to even more rules, concerning issues such as proof of recruitment of potential U.S. workers, and attestations that U.S. workers are not being displaced by the H-1B workers. This class is defined according to whether the employer has a high percentage of its workforce in H-1B visa status.  At the least, all employers have to keep track of how many H-1B's they have and where they are. 

  THE PROCESS

The four steps in the process are:

Determine the prevailing wage for the occupation, either through reference to a published wage survey, or, through an inquiry done by our office to the State Employment Service office.

Secure an approved Labor Condition Application, through our office's submission of this form to the Department of Labor. The employer must sign this form, post two copies of it at the place of employment, and save the copies in their H-1B file. Through this, the employer undertakes to comply with the various D.O.L. rules concerning the employment of H-1B workers.

Secure approval of the employer's H-1B petition from U.S. Citizenship and Immigration Services. Our office prepares and files the petition with the CIS, with copies of the various forms of required documentation. Typically, we will submit the approved LCA, proof of the alien's professional education & experience, proof that the position is of a professional nature, and copies of relevant employment contracts.

After the CIS approves the petition, if the alien is outside the U.S., we assist in his or her application to the nearest U.S. consulate for the visa. If the person is inside the U.S., his or her visa status can usually be changed to H-1B status while they are here.

 

GOING BEYOND THE SIX YEAR LIMIT

Many people in H-1B status find that, with long waiting lists for permanent residence processing,  their six years of stay as an H-1B are running out before they can complete the application for residence. 

While each such case requires an individualized consideration of the possible courses of action,  one course is for the person to start on an application for permanent residence through a labor certification, at least one year prior to six year H-1B expiration.  Having a residence case pending for over one year makes a person eligible for extensions of H-1B stay PAST the usual six year limit, for as long as it takes to complete the residence application.   The key point is that it must be filed before five years in H-1B status has passed.

 

LAYOFF & EXTENSION POLICY

The CIS'  often demands that, for petitions seeking H-1B permission to change employers, proof be submitted that the alien worker has been maintaining his or her stay in the past by working for the previously authorized employer.  Proof of such employment should be in the form of paycheck stubs, W-2 forms, wage & earnings statements, and State of California Forms DE-6. 

Where there is a period of no pay, for example due to a layoff, the CIS may or may not grant the requested change of employers, depending on the individual officer's evaluation of the case.  The law itself does not authorize any "grace period" in layoff situations.

LIMITED NUMBERS -

THE “CAP”   

The law on H-1B visas sets a limit on how many new H-1B visas can be issued per year, a maximum of 65,000 per year; plus 20,000 more for persons who have at least a Master’s degree from a U.S. college.  The CIS operates on a fiscal year that starts on October 1.   They will allow an application to be filed no more than six months in advance - no sooner than April 1. The cap is usually exhausted shortly after that date, but with the current economic downturn, for the current fiscal year, the cap was reached on Nov. 22, 2011. New petitions subject to the cap cannot be filed until 4/1/2012.

 

EXCEPTIONS to the CAP

THE CAP DOES NOT AFFECT EXTENSIONS OF STAY, OR APPLICATIONS FOR CHANGE OF EMPLOYER, FOR PERSONS WHO ALREADY HAVE H-1B STATUS. 

Another exception to the cap exists for persons who are sponsored to work at qualifying institutions of higher learning (a college) or at a qualifying nonprofit scientific research organization.  Such persons can get new H-1B visas even after the cap has been reached.

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 Related Resources

• U.S. Dept of Labor's wage survey