H-1B and H-1B1 Visas

H-1B Temporary Worker Visa

The H-1B category is often the only nonimmigrant visa category available for a U.S. company to use to employ a foreign national. As the title implies, the company must be seeking to fill a “specialty occupation” with a qualified foreign national. A specialty occupation is one which, by prevailing practice in the U.S., generally requires the possession of a baccalaureate degree or higher or its equivalent, as a minimum, entry- level credential.

A qualified foreign national is one who possesses the minimum credentials necessary to practice the specialty occupation, i.e., the appropriate academic degree or the equivalent of a degree. Where U.S. state licensure is a requirement to practice the occupation without restriction, the U.S. Citizenship & Immigration Services (“USCIS”) will require the foreign national to possess the license before H-1B status will be approved. Please click here to learn more about required credentials.

The H-1B petition may be approved for a maximum initial period of three (3) years and may be extended for an additional three (3) years longer under certain circumstances. Petition approval authorizes the foreign national’s employment in the position and location stated on the petition. There is a statutory cap that limits approval of new H-1B petitions in a fiscal year and the cap is currently set at 65,000.

Petitions Exempt from the H-1B Cap

Foreign nationals who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

Also exempt from the cap are petitions involving a change in employer, an amendment or extension of stay.

There is a $325 fee to file an H-1B petition with the USCIS. There is also a Fraud Prevention and Detection Fee of $500 to be paid by petitioners seeking a beneficiary’s initial H-1B nonimmigrant visa classification or by petitioners seeking to change a beneficiary’s authorized employer. For cap subject employers, there is an additional ACWIA fee of $1500 ($750 for employers with no more than twenty-five (25) employee) that must be paid for an initial H-1B petition and for the first extension.

An employer must complete and file a Labor Condition Application (“LCA”) with the U.S. Department of Labor (“DOL”) prior to the filing of the H-1B petition. The employer attests on the LCA that it will pay the alien a wage equal to the higher of either

(i) the “prevailing” wage for the specialty occupation in the local labor market or

(ii) the “actual” wage paid by the employer to other workers with similar responsibilities and qualifications in the occupation. (The employer must retain documentation supporting determination of both the prevailing wage and the actual wage.)

The employer also attests that the H-1B’s employment will not adversely affect the working conditions of U.S. workers similarly employed, that there is no strike, lockout or other work stoppage in the occupation in which the H-1B worker will be employed and that notice of the filing of the application has been provided to the company’s employees and the foreign national.

Additional requirements relating to recruitment and displacement of U.S. workers are required from employers whose workforce is composed of a significant percentage of foreign nationals (“dependent employers”). The DOL may investigate to determine whether all LCA requirements have been met and penalties for a willful failure to comply can be severe.

Please see our link on workforce compliance for additional information.

Recapture H-1B time

Foreign nationals in H-1B status are permitted to “reclaim” any time spent outside the U.S. in determining when the six (6) year limit of H-1B status will end. Foreign nationals should therefore, keep records of the time outside of the U.S. (i.e. copies of passport entry/exit stamps, itineraries, boarding passes, travel agent records, a list of dates entry and exit from the U.S., etc.)

Canadians Holding H-1B/H-4 Visas

Canadian citizens are not required to obtain a visa stamp in their passports in order to reenter the U.S. in H-1B status. Upon leaving the country for a trip to Canada or Mexico for a period of thirty (30) days or less, a Canadian should explain that s/he is a Canadian citizen and should be allowed to keep the I-94 card. The Form I-94 card is authorization to reenter the U.S. following such trips.

If traveling to a third country, Canadians should relinquish the Form I-94 and the lower right portion of the approval notice upon departure and present a Canadian passport and the original I-797B “Notice of Action Approval Notice” issued by the U.S. Citizenship and Immigration Service (USCIS) upon application for readmission.

Canadians will receive a Form I-94 (Arrival/Departure Record) upon entry and the Immigration Inspector should note classification as H-1B. That Form I-94 should be valid for multiple entries for the duration of the H-1B petition approval.

H-1B1 Chile and Singapore

The United States entered into free trade agreements (FTAs) with Singapore and Chile which took effect on January 1, 2004. Both FTAs include a category of nonimmigrant professional, H-1B1.

Under the terms of the FTAs, nationals of Chile or Singapore may apply at consular sections around the world for a nonimmigrant professional H-1B1 visa. As in the H-1B program, to qualify, professions must meet the definition of “specialty occupation” or submit proof of alternative credentials.

Each applicant must also submit a job offer letter from the sponsoring U.S. employer, proof of labor attestation (certified ETA 9035 or 9035E), and of proof of payment of the Machine Readable Verification (MRV) fee.

Foreign nationals already in the U.S. as nonimmigrants may apply to USCIS for a change of nonimmigrant status to H-1B1. A foreign national who thereafter departs the U.S. would need an H-1B1 visa to seek readmission as an H-1B1.

The FTAs allow for no more than 1,400 professionals from Chile and 5,400 professionals from Singapore to enter the United States annually. The numerical limitations for the FTAs are set aside within the overall H-1B Program cap.

H-1B1 nonimmigrant professionals are admitted for a one- year period renewable indefinitely, provided they are able to demonstrate that they do not intend to remain or work permanently in the U.S.