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Phone(312) 836-9040|(847) 465-0007 Chicago & Northwest Suburbs
 

H-1B Updates

The H-1B category is the most useful visa category for bringing in highly skilled professionals to work in the U.S. The H-1B classification is available only to workers in jobs requiring highly specialized knowledge normally acquired through attainment of a four-year college degree. The alien must possess at least a Bachelor's degree, or its equivalent, in order to qualify for an H-1B visa. The H-1B petition requires a two-step process which involves the preparation and filing of a Labor Condition Application followed by the preparation and filing of the H-1B visa petition.

There are two requirements for an H-1B visa: (1) The occupation must require at least a bachelor's degree; (2) The foreign professional should have the US equivalent bachelor's degree (4 years) in a field related to that occupation. The job itself must be of the nature that requires a degree. If you do not have a bachelor’s or higher degree in the specific specialty, however, you can qualify through your experience. Ideally you should have some training. Without a bachelor’s or higher degree you must obtain an equivalency evaluation that says your work experience in the field is equal to a 4 year bachelor's degree. Three years of work experience in the field is equal to one year of college. An evaluation from a professional service that evaluates work experience and/or foreign degrees would be able to determine whether your work experience and college degree would be enough for obtaining H-1B.

The types of jobs that qualify include: Accountant, Business Executive, Computer Programmer, Electronics Specialist, Engineer, Fashion Designer, General Manager (if the business is of a complex nature), Graphic Designer, Journalist, Management Consultant, Pharmacist, Scientist and Researcher, and Technical Publications Writer.

''Profession'' means any occupation requiring, at the entry level, ''specialized training that is normally attained through high education of a type for which at least a bachelor's degree can be obtained ... .''. By regulation published in 1990, the Service codified its recognition that H-1 includes professionals. The Service classified aliens as professional in a variety of occupations, which, with the possible exception of nursing, will undoubtedly be recognized as specialty occupations.

"Professionals", as classified by Service precedent decision, are listed in the following pdf 's together with the corresponding decisions, the alien's degree or experience, and the education found to be required ordinarily:

Who is a Professional, 1 (click for pdf list)

Who is a Professional, 2 (click for pdf list )

(CIS List of Professionals for H-1B Visa (click for pdf memo )

- The services to be performed must be in a ''specialty occupation'';
except for fashion models one may no longer qualify as a person of
''distinguished merit and ability.''

- As since amended, the H-1B description explicitly excludes services
described in the H-2A (agricultural worker), O (extraordinary ability)
and P (athlete and group-entertainer) classifications.

- The former operative term, ''distinguished merit and ability'' has
been dropped from the H-1B description except as it applies to fashion
models and, with that exception, aliens may therefore no longer qualify
on the basis of preeminence or prominence.

- In the case of the fashion model, the statute requires the applicant to
be of distinguished merit and ability, interpreted by long CIS practice
to mean ''prominent.'

- The statute explicitly permits the alien to qualify for the specialty
occupation not only by academic degree but also by license, experience,
or training, adopting the position to which the Service returned in its
regulations of January 26, 1990.

-The filing of an H-1B petition is made subject to the prior filing of a
labor condition application (''LCA'') with the Department of Labor.

- The requirement of a residence abroad is removed. So too is the 214(b)
immigrant presumption. And steps taken by the alien that reflect the
intention to immigrate eventually may not be used as evidence of an
intention to abandon his or her foreign residence for purposes of
denying an H-1 visa or entry. Although the requirement of entering
''temporarily'' is retained, the Government treats the statutory
limitation to six years as essentially quantifying the ''temporary''
requirement; the H-1B applicant will be treated as coming
''temporarily,'' absent evidence of an intention to overstay.

- The ''dual-intent'' principle was further strengthened by CIS
regulations in 1999. Under the amended provisions, the Service can
approve H-1 and L-1 petitions, including requests for extension and
change of status for the principal or dependent family members despite
the application for or approval of an immigrant preference or adjustment
of status. Moreover, H-1 and L-1 applicants for adjustment and their
family dependents may continue to maintain their nonimmigrant status
during the adjustment processing and may leave and return to the United
States in such status, instead of securing advance parole, without
abandoning their adjustment applications.

- On dismissal of an H-1B employee before the period of authorized stay
expires, the employer is liable for the reasonable costs of return
transportation abroad.

Factors to examine: is a degree required to satisfactorily execute the functions of the job? What are the requirements, duties and operations of the job on a daily basis? Is theoretical knowledge necessary? What are the requirements for the job according to the industry? Is there a highly specialized body of knowledge the person would be drawing from? What is the pay? Is there a licensing or membership requirement to practice in that area?

To be classified as H-1B, the alien must be coming to perform services
in a ''specialty occupation.'' That term is defined in the statute as:
''an occupation that requires--(A) theoretical and practical application
of a body of highly specialized knowledge, and (B) 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.''

The Service reads this definition, as follows, in text that is virtually
identical with its earlier definition of ''profession'' in the H-1B
regulations: an occupation which requires theoretical and practical
application of a body of highly specialized knowledge in fields of human
endeavor including, but not limited to, architecture, engineering,
mathematics, physical sciences, social sciences, medicine and health,
education, business specialties, accounting, law, theology, and the
arts, and which requires the attainment of a bachelor's degree or higher
in a specific specialty, or its equivalent as a minimum requirement for
entry into the occupation in the United States.

For the many new positions presented in H-1 petitions, the Service has
questioned closely whether a university-trained employee is really
needed.

To determine whether a given position qualified, the Service has applied
certain criteria, which it codified in its 1990 regulations and,
following the 1990 Act, has modified only slightly to read as follows:

(1) A baccalaureate or higher degree or its equivalent is normally the
minimum requirement for entry into the particular position. Presumably,
as the statutory definition of specialty occupation suggests, the degree
should be in a specific field, although the Service in the past
recognized that qualification in many occupational specialties is not
restricted to a single major or discipline but may include a ''narrow
range of disciplines.'');
(2) The degree requirement is common to the industry in parallel
positions among similar organizationsn or, in the alternative, an
employer may show that its particular position 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 are so specialized and complex
that knowledge required to perform the duties is usually associated with
the attainment of a baccalaureate or higher degree. Note that the
regulation sets out these criteria in the alternative, providing broad
opportunities for a given position to qualify as a specialty occupation.

ATTESTATION| LABOR CONDITION APPLICATION| LCA:

Form ETA 9035 is filed at the nearest office of the Employment and Training Administration (hence ETA form) of the DOL (Department of Labor). Download Application for H-1B Nonimmigrants ETA-9035. | Download CIS instructions.

Electronic Process:

FAX: ETA 9035 (LCA) may be faxed to (800) 397-0478. You must maintain a fax machine in operation 24 hours per day, 7 days per week; OR

Mail: 9035 (LCA)) may be mailed to ETA-H1B, P.O. Box 13640, Philadelphia, PA, 19101.

* If the LCA is rejected, the returned LCA will include the reasons for the rejection.
* Once LCA is approved, the employer attaches the certified LCA to form I-129 (Petition for H-1B nonimmigrants) and files with the CIS.

The purpose of this form is to ascertain the employer is paying you a fair wage. In other words, people in the same geographical area working in a position of similar duties will all be paid the same. Sometimes the employer will pay less than the "Prevailing Wages". (see regulations) . This will not be accepted unless the employer can demonstrate why. The prevailing wage must have been obtained within 90 days of filing the LCA. Your employer can use SESA (State Employment Security Agency), Federal prevailing wage laws, or another source such as a private company. (Watson Wyatt, William Mercer performs private surveys routinely accepted for prevailing wage purposes. Call (201) 843-1177 and ask to speak with a Customer Services Consultant. Mike_Hayes@watsonwyatt.com, 303 West Madison Street, Suite 2400, Chicago, IL 60606-3308; Telephone: (312) 704-0600; FAX: (312) 704-8114. ‘Wages’ include anything that is taxable to you, however it does not include fringe benefits. In order to file the attestation, your employer will need a tax I.D. number and also attest to the fact that there is no strike or lockout taking place.

Department of Labor /ETA for America's-Labor-Market-Information-System: access additional national, state and local labor market information, including the latest information on standard wages in your market, and the minimum wage law.

SESA Administrators (Illinois: Lynn Doherty Director Department of Employment Security 401 South State Street Suite 624 Chicago, IL 60605 Phone: (312) 793-9279 FAX: (312) 793-9834)

The attestation can be filed for full or part-time employees. If your position keeps you mobile (ie consultant) then the attestation must be filed in the office nearest to the first location in which you will be working.

The LCA is valid for a maximum period of three years. This means that the validity period of an LCA may not exceed the validity period of an H-1B petition which is also three years. H1 status is valid for 6 years. Every new company has to file its own H-1B Petition.

CIS Provides Guidance on AC21: CIS Instructions on how it will implement H-1B law, June 19, 2001 (2.06 MB .pdf download)

New Fees

Before October 1, 2003, employers who used the H-1B program were
required to pay an additional $1,000 fee imposed by the American
Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part,
that $1,000 fee paid for U.S citizens, lawful permanent residents and
other U.S. workers to attend job training and receive low-income
scholarships or grants for mathematics, engineering or science
enrichment courses administered by the National Science Foundation and
the Department of Labor. Those ACWIA fee requirements sunset on October
1, 2003.

The H-1B provisions of the Omnibus Appropriations Act reinstitutes the
ACWIA fee and raises it to $1,500. Petitioners who employ no more than
25 full-time equivalent employees, including any affiliate or
subsidiary, may submit a reduced fee of $750. Certain types of
petitions, that were previously exempt from the $1,000 fee, are still
exempt from the new $1,500 and $750 fee. The new $1,500 and $750 fee
applies to any non-exempt petitions filed with USCIS after December 8,
2004.

In addition, the Act creates a new Fraud Prevention and Detection Fee of
$500 which must be paid by petitioners seeking a beneficiary’s initial
grant of H-1B or L nonimmigrant classification or those petitioners
seeking to change a beneficiary’s employer within those classifications.
Other than petitions to amend or extend stay filed by an existing H-1B
or L employer, there are no exemptions from the $500 fee. The new $500
fee applies to petitions filed with USCIS on or after March 8, 2005.

Each of these fees is in addition the to base processing fee of $185 to
file a Petition for a Nonimmigrant Worker (Form I-129) and any premium
processing fees, if applicable.

H-1B Cap

This Act, and Public Law 108-441 (Dec. 3, 2004), provides new exemptions
from the congressionally mandated annual H-1B cap.

The first 20,000 H-1B beneficiaries who have earned a master’s degree or
higher from a U.S. institution of higher education are not subject to
the annual congressionally mandated H-1B visa cap of 65,000. After those
20,000 slots are filled, USCIS is required to count those cases against
the cap for the remainder of the fiscal year.

For FY 2005, the new provision will allow USCIS to accept new petitions
on behalf of up to 20,000 beneficiaries meeting these criteria.
Petitions under this provision cannot be filed at this time, as the
provision is not effective until March 8, 2005. USCIS will provide
additional guidance on eligibility and process at a later date.

Public Law 108-441 extended the “Conrad 30” J-1 program covering certain
medical graduates. Nonimmigrants currently in the United States on a J-1
(exchange) visa who receive a waiver of the two- year residency
requirement if requested by either a federal or state agency are now
exempt from the H-1B cap. Qualifying employers of these beneficiaries
may submit H-1B petitions, notwithstanding the fact that the H-1B cap
was already met for FY 2005, after December 8, 2004. Petitioners must
separately evaluate whether an H-1B petitioner is exempt from certain
fees and whether the petition is exempt from the H-1B cap, because the
rules applicable to each type of exemption are not the same. For
example, a petition by an otherwise non-exempt employer to extend the
H-1B stay of a beneficiary for the first time would be exempt from the
H-1B cap, but not from either the $1,500 or $750 fee.

Premium Processing Service: guarantees 15 calendar day processing of
certain employment-based petitions or applications. If you request
Premium Processing Service within 15 calendar days of the date of
receipt, the Bureau of Citizenship and Immigration Services (CIS) will issue an
approval notice, notice of intent to deny, request for evidence, or
issue a notice if an investigation for fraud on the relating petition or
application is deemed necessary. If it is unable to process your
petition or application within 15 calendar days, the fee paid for
premium processing will be fully refunded.

Employers may use Form I-907 to request faster processing of certain
employment-based petitions. You may use this form if
you are the petitioner, the applicant, or an attorney or representative
acting on behalf of the petitioner or applicant. This request may be
filed with the relating application or petition, or it may be filed
after, as long as the relating petition or application is still pending.

Currently, those eligible to request this service are the following
categories of nonimmigrants whose employers file on their behalf using
CIS Form I-129: E-1; E-2; H-2A; H-2B; H-3; L-1; O-1; O-2; P-1; P-3; and
Q-1. NOTE: On July 30, 2001, the following nonimmigrant categories will
also be eligible to request this Premium Processing Service: H-1B; TN;
and R.

Form I-907 (download .pdf form)

Petitions for obtaining H-1B nonimmigrant status for alien workers, and other supporting documentation such as the Labor Condition Application (LCA) (ETA Form 9035), are submitted by the prospective employers on CIS form I-129 (Petition for a Nonimmigrant Worker). The petitions are mailed to one of four CIS Service Centers depending on the location of the employer: St Albans, VT; Lincoln, NE; Dallas, TX; and Laguna Nigel, CA. Approved petitions submitted by the employer (petitioner) allow the employee (beneficiary) to work in the United States up to 3 years initially. Employment can be extended for another 3 years for an overall total of 6 years. Only one worker is named on each petition; however, a particular worker may be petitioned for by more than one company.

Once a nonimmigrant enters the United States, he or she may remain for the period that is indicated on the Form I-94 (entry permit). These forms are usually completed while the nonimmigrant is on an airplane and are endorsed by inspections at the point of arrival in the United States. The inspector will generally review the individual's passport and visa, nonimmigrant visa petition approval notice (if applicable) and may ask the individual questions regarding their current trip to the United States.

Assuming that the inspector is satisfied with the documentation and information presented, the inspector will stamp her passport and Form I-94 with an admittance stamp and endorse the stamps with the H-1B nonimmigrant classification and the required departure date which should coincide with the H-1B petition validity period. The passport should also be valid past the intended departure date, or she will only be admitted to the ending date of the passport validity period. Form I-94 controls the nonimmigrant's admittance.

H-1B Law, October 17, 2000: S.2045, the "American Competitiveness in the Twenty-First Century Act of 2000" increases the existing visa quotas as follows: FY 2000 -increase from 115,000 to 195,000 FY 2001-increase from 107,500 to 195,000 FY 2002 -increase from 65,000 to 195,000. All H-1B petitions received by CIS on or after December 18, 2000, and before October 1, 2003, must be accompanied by a $1,000 fee in addition to the $110 filing fee.

INCREASED PORTABILITY OF H-1B STATUS. Persons previously issued a visa or otherwise provided H-1B status can accept new employment upon the filing of a new petition by a new employer, subject to the final approval of the petition. If the petition is denied, work authorization ceases. In order to be eligible for this provision, the individual must have been lawfully admitted to the United States, the new petition must have been filed before the expiration of the period of stay authorized by the Attorney General and the individual must not have been employed without authorization in the United States before the filing of such petition. Employees who now hold H-1B status but want to change companies, and their future petitioning employers, are the primary beneficiaries of this expanded portability.

For text of H-1B Bill click here: S.2045 (.pdf file)

H-1B Regulations: Final Rule, 12-20-00, 20 CFR Parts 655 and 656/Temporary Employment in the United States of Nonimmigrants under H-1B Visas (693 KB .pdf file, be patient on download)

20 CFR 655 Subpart H (html)

20 CFR 655 Subpart I (html)

For Senate Report of H-1B Bill click here: S.2045 Report (.pdf file)

Sponsor: Sen Hatch, Orrin G. (introduced 2/9/2000) Latest Major Action: 10/17/2000 Became Public Law No: 106-313. Title: A bill to amend the Immigration and Nationality Act with respect to H-1B nonimmigrant aliens. SUMMARY AS OF: 4/11/2000--

Increases available nonimmigrant H-1B specialty occupation visas for FY 2000 through 2002.

(Sec. 3) Amends the Immigration and Nationality Act to exempt from H-1B numerical limits an alien: (1) who is employed at an CIStitution of higher education or related nonprofit entity, nonprofit research or governmental research entity; or (2) for whom a petition has been filed within a specified time before or after attainment of a master's or higher degree from a U.S. CIStitution of higher education.

(Sec. 4) Makes employment-based immigrant visas available on a quarterly basis without regard to per-country limitations if unused visas are available. Authorizes a U.S.- residency extension for a nonimmigrant alien for whom an employment-based immigrant petition has been filed but who is subject to the per-country limit until resolution of such alien's application for status adjustment.

(Sec. 5) Authorizes a qualifying H-1B alien to accept new employment upon a prospective employer's filing of a new petition, which shall last until such petition's adjudication. To be eligible for this benefit, Section 105 requires that the H-1B holder was lawfully admitted; that the petitioning company filed a non-frivolous petition prior to the status expiration; and that the H-1B alien was not unlawfully employed after admission into the U.S.

(Sec. 6) Provides for one-year extensions of authorized H-1B stay in cases of permanent residence adjudications lasting 365 days or longer.

(Sec. 7) Extends: (1) attestation and fee requirements under such Act through October 1, 2002; and (2) investigative authorities under the American Competitiveness and Workforce Improvement Act of 1998 through September 30, 2002.

(Sec. 8) Provides, with respect to nonimmigrant visa petitions subject to numerical limits, for the numerical restoration of such visas fraudulently obtained, effective for the fiscal year of petition revocation.

(Sec. 9) Directs the National Science Foundation to conduct a study of the divergence to high technology access (digital divide).

(Sec. 10) Amends the Immigration and Nationality Act with respect to the allocation of H-1B visa fees from the Treasury H-1B Nonimmigrant Petitioner Account to: (1) reduce amounts for job training, and mathematics, engineering , or science enrichment courses; and (2) increase amounts for low- income scholarships for mathematics, engineering, or computer studies. Amends the American Competitiveness and Workforce Improvement Act of 1998 with respect to such low-income National Science Foundation scholarships to: (1) increase maximum amounts; and (2) authorize four-year extensions. Amends the Immigration and Nationality Act to obligate Account amounts to the Foundation in support of private-public education partnerships in K-12 math, science, and technology. Amends the American Competitiveness and Workforce Improvement Act of 1998 to direct the Foundation and the Department of Labor to monitor H-1B grant programs.

(Sec. 11) Kids 2000 Act - Directs the Attorney General to make grants to the Boys and Girls Clubs of America for after-school technology programs, such as PowerUp. Authorizes FY 2001 through 2006 appropriations. Authorizes the Violent Crime Resolution Trust Fund as a fund source.

H1 Work prior to Approval: Anyone awaiting approval of an H-1B transfer may legally begin to work for their new employer. An H-1B visa holder may begin to work for a new employer when a non-frivolous, legally viable H-1B petition is submitted, and no longer must wait for approval before doing so. Prior law required that a worker wait until the petition was approved before changing employers. If denied, the authorization will be terminated. Under the law prior to October 17, 2000 a person on an H-1B with one specific employer was not allowed to work for another employer, unless and until the person obtained a second H-1B approval for the other employer. CIS had consistently maintained the position that one can only start work on an H1 status after obtaining the approval, but S.2045 makes this unncessary.

For H-1B visa holders with a pending employment-based green card, and who filed a labor certification or I-140 at least one year prior, the six year time limit is waived, with extensions granted in one year increments until the green card petition is either approved or denied. Section 104(c) allows ANY alien (1) who is the beneficiary of a FILED EB-1, EB-2 or EB-3 visa petition; and (2) would be eligible to apply for permanent residence except for the application of per-country limitations (e.g. born in India or mainland China) to apply to the CIS for extensions of nonimmigrant status until his or her adjustment of status application has been adjudicated. The law states that the application "may" be approved.

After an application for adjustment of status for a person sponsored under an EB category remaCIS unadjudicated for over 180 days, the individual is free to change jobs as long as the new job "is in the same or a similar occupational classification as the job for which the petition is filed".

The H-1B cap will no longer impact any foreigner who is employed--or has a written offer of employment--by a university, college or related nonprofit organization. Neither will nonprofit or government research organizations be subject to the quota. Once a person under these categories leaves the related position, however, they do become subject to the H-1B cap once again, unless the subsequent employer is likewise exempt. Secondly, for those with a petition filed no more than 90 days prior and no more than 180 days following the completion of a graduate degree, the cap will not be applicable.

U.S. Citizenship and Immigration Services (USCIS) announced today that President Bush
has signed the Omnibus Appropriations Act for FY 2005, which contains provisions affecting the H-1B and L
nonimmigrant visa categories. Both the H-1B and L programs allow U.S. employers to sponsor temporary
foreign workers.

H-1B Specialty (Professional) Workers

Actual Wage Requirements Regarding H-1B Aliens (Documentation of the wage statement)

Labor Department regulations affecting the employment of H-1B aliens require an employer to explicitly document the actual wage for the position. The Labor Department suggests that an employer write a memorandum to the file summarizing the employer's pay system.

The Labor Department does not require copies of payroll records in this file. You should write a brief memo to the file stating how the H-1B alien's salary compares with similarly employed non-alien employees of your company, and the variables that determine differences, if any, between the H-1B alien's salary and similarly employed non-alien employees' salaries. If your H-1B alien is employed in a unique position in your company, a memo to the file stating this should suffice, as long as you explain why the alien's position is unique.

Your memo should include the following information for the H-1B worker and all similarly employed workers, if any:

1. Full name

2. Home address

3. Occupation

4. Rate of pay

5. Hours worked/daily and /weekly

6. Total daily or weekly straight time earnings

7. Total overtime compensation per week

8. Total additions or deductions from pay each week

9. Total wages paid each pay period, date of pay, and pay period covered

CIS has advised that it still maintained its long-held view that H-1B non-immigrants who remain present in the US without changing status, when they are no longer employed under the H-1B, are considered to be in violation of their status.  CIS indicates that it will continue its past policy of reviewing such situations on a case-by-case basis to determine whether to exercise discretion under 8 CFR section 214.1(c)(4) to grant an extension of status.  The length of the individual's presence in the US under the H-1B admission is one factor in such exercise of discretion. 8 C.F.R. 214.1(c)(4) allows a retroactive grant of extension of stay in certain circumstances. Nunc pro tunc approvals are also available in a number of other contexts.

A person on an H-1B is allowed to work only for one specific employer which has been approved and authorized both by the US Department of Labor via the Labor Condition Application (LCA) and by the CIS based on the approved H-1B Petition. Please note that there is big difference between the LCA for H-1B Petitions and the Labor Certification for the Green Card processing.

H1 Work prior to Approval: Anyone awaiting approval of an H-1B transfer may legally begin to work for their new employer. An H-1B visa holder may begin to work for a new employer when a non-frivolous, legally viable H-1B petition is submitted, and no longer must wait for approval before doing so. Prior law required that a worker wait until the petition was approved before changing employers. If denied, the authorization will be terminated. Under the law prior to October 17, 2000 a person on an H-1B with one specific employer was not allowed to work for another employer, unless and until the person obtaCIS a second H-1B approval for the other employer. CIS had consistently maintained the position that one can only start work on an H1 status after obtaining the approval, but S.2045 makes this unncessary.

It is possible for a person to have two or more valid H-1B's concurrently. For example, one can be for a full-time job and the second one can be for a part-time job with a different employer.

H1 with Old Employer: Since an H-1B is specific for a particular employer only, one is no longer in violation of Dept of Labor regulations and CIS laws by working for another employer before obtaining an approved H-1B Petition to work for that employer.

Memo on Dual Intent for H-1 and L-1 Nonimmigrants. On March 14, 2000, Robert L. Bach, Executive Associate Commissioner, Office of Policy and Planning, issued a memorandum regarding AFM Update: Dual Intent Follow-up Guidance; H-1 and L-1; Pending Applications for Adjustment of Status, validity of nonimmigrant status, and the elimination of the advance parole requirement.

Family Petition & H1 w/Dual Intent: Under recent laws (Immigration Act of 1990 as regularly amended), if one has a family based or employment based GC case pending, one can still be eligible for an H1 status. The H1 is one of the best options available since the "doctrine of dual intent" applies to H visas (i.e. you can have both a nonimmigrant & immigrant intention under the H & L visa status under the new law.) As long as you maintain your status, you do not need to leave the country.

9 FAM 41.53 Temporary Workers and Trainees, Foreign Affairs Manual (pdf file)*

9 FAM 41.53 Procedural Notes, Foreign Affairs Manual (pdf file)*

Characteristics of Specialty Occupation Workers (H-1B): October 1999 to February 2000, U.S. Immigration and Naturalization Service, June 2000.

(.pdf file)

Nearly 43% of the H-1B petitions were granted to persons born in India, which far exceeds China, the next leading country. Indians comprised about 37% of the H-1B petitions subject to the cap, but 51% of the H-1B petitions not subject to the cap.

Approximately 56% of the all H-1B workers were reported to have earned the equivalent of a Bachelor's Degree; about 31% earned a Master's Degree; around 8% earned a Doctorate Degree; and more than 2% earned a Professional Degree. Altogether more than 41% earned a Master's Degree or higher.

The median prospective annual wage reported by employers for all H-1B workers was $50,000; half of the workers were expected to earn between $40,000 and $65,000. The median wage ranges from a low of $31,100 for occupations in Religion and Theology to a high of $130,000 for Fashion Models. The highest annual wages among the leading occupations ranged from $33,500 for occupations in Education to $55,000 for occupations in Architecture, Engineering, and Surveying.

You are an H-1B nonimmigrant visaholder who is about to reach the end of your sixth year in the U.S. You may reside abroad for one year or more, and then have your employer re-petition you for H-1B status. What happens to your labor certification, visa petition and priority date while you are working abroad?

As long as your employer continues to pursue your labor certification and visa petition, all of your rights remain intact and your priority date is the date that your application for labor certification was received by the State Employment Security Agency (SESA). You need not be present in the U.S. to have an alien labor certification and a visa petition approved on your behalf. Your residence during the time that this process occurs is largely irrelevant unless, of course, you are unlawfully present in the U.S.

Assuming you meet all of the statutory and regulatory requirements, as an H-1B visaholder who is about to reach the end of your sixth year in the U.S., you may change your status to the following nonimmigrant categories: "O-1" (Extraordinary Ability) "TN" (Trade NAFTA) "E-2" (Treaty Investor) The regulations, at 8 C.F.R. 214.2(h)(13)(iii)(A), only prohibit extensions of stay, changes of status and readmission under "H" or "L" status. A person in H-1B status about to reach the six-year maximum duration of stay is not barred from changing status or obtaining a nonimmigrant visa in other nonimmigrant (temporary) categories.

I have been on a L visa for 4 years, does this time apply to the H-1B limit?

Yes. Since you were on an L visa for 4 years, you may only remain in the United States on H-1B status for two years.

I am computer professional and my current H-1B visa expires in FEB, 2000 and I have two more years for 6 year cap - I have EAD, must I renew H-1B?

Under CIS regulations issued in June 1999, when a person applies for AOS, they must make a choice between remaining in H or L status OR obtaining an Employment Authorization Document (EAD) and Advance Parole. Since you already have an EAD you have made this choice and do not need to renew your H-1B visa. However, the regulations are a bit unclear as to when the choice is actually made When the EAD is applied for, when the EAD is obtained or when the EAD is used to work for a company other than the petitioning employer.

I am working with one company on an H-1B visa. I have applied to another company. How much time does it take to transfer my H-1B from original company to the new one?

The time varies depending upon the location. The first step in H-1B cases is to locate prevailing wage information for the area in which the employment is to be located. It is possible to either have the state issue a prevailing wage determination or if there is a reputable and reliable published survey that would meet the labor department requirements it is possible to use that CIS instead. The prevailing wage data as well as other basic information is then entered onto a one-page form that is submitted to the Department of Labor. Depending on which regional office of the Department of Labor you are dealing with, you will get that form back in the mail anywhere from a couple of weeks to a couple of months.

The next step is to submit a form along with the labor form above and a letter describing the operations of the company, the job opening and the prospective employee's background to CIS. It is also necessary to document the beneficiary's degree and to show that the company is able to pay the salary. Depending upon the location of the employment, it can take anywhere from 3 weeks to 3 months for the CIS to approve the petition.

The processing time by the CIS varies depending on where the application was filed which in turn depends on the location of the job or the headquarters of the company. Once all the documentation (petition form, employer letter, documentation of your education and work experience) is filed with CIS, the amount of time it takes varies: the Nebraska Service Center can complete the process in one to two months, depending on their caseload.

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AMENDED H-1B PETITIONS

The CIS issued a memorandum in 1996 outlining the general policy guidelines for when a new or an amended H-1B petition is required to be filed.

The position of the CIS is that an amended petition must be filed whenever there is a "material change" in the terms and conditions of the employment which effect the H-1B beneficiary's eligibility for the H-1B classification.

For example, the mere transfer of the beneficiary to another work site in the same occupation would not require the filing of an amended petition, provided the initial petitioner remaCIS the alien's employer and also provided further that the supporting LCA remaCIS valid because the beneficiary will continue to work in the same metropolitan statistical area.

An amended H-1B petition is required to be filed when the beneficiary's place of employment changes subsequent to the approval of the H-1B petition if the change invalidates the supporting LCA.

Neither an amended nor a new petition is required to be filed if the petitioner merely changes its name, provided the remaining terms and conditions of the alien's employment continues to remain the same. The petitioner, however, has the obligation to notify the CIS of the new name when it files for an extension of the H-1B Petition.

Similarly, a change in the ownership structure of the petitioner would not require the filing of a new or amended petition if the petitioner continues to remain the alien's employer and provided the new owners of the firm assume all the previous owner's duties and liabilities, including those relating to the LCA.

A new H-1B petition is always required if there is a totally new employer.

Similarly, the CIS has taken the position that if the employer/ petitioner merges with another firm to create a third entity which will subsequently employ the beneficiary, a new or an amended petition must be filed since the merger has created a separate legal entity and, therefore, a new employer. A mere change in the ownership without a change in the legal form of ownership will not require a new or an amended petition.

In summary if the change in duties is substantial or there are other major or material changes, an amended petition is required to be filed

Immigration FAQ

 

 

 

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