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.
are two requirements for an H-1B visa: (1)
The occupation must require at least a bachelor's degree;
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 bachelors or higher degree in
the specific specialty, however, you can qualify through
your experience. Ideally you should have some training.
Without a bachelors 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.
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:
- The services to be performed
must be in a ''specialty occupation'';
except for fashion models one may no longer qualify as a
''distinguished merit and ability.''
- As since amended, the H-1B
description explicitly excludes services
described in the H-2A (agricultural worker), O (extraordinary
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
models and, with that exception, aliens may therefore no
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
to mean ''prominent.'
- The statute explicitly permits
the alien to qualify for the specialty
occupation not only by academic degree but also by license,
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
- The requirement of a residence
abroad is removed. So too is the 214(b)
immigrant presumption. And steps taken by the alien that
intention to immigrate eventually may not be used as evidence
intention to abandon his or her foreign residence for purposes
denying an H-1 visa or entry. Although the requirement of
''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
approve H-1 and L-1 petitions, including requests for extension
change of status for the principal or dependent family members
the application for or approval of an immigrant preference
of status. Moreover, H-1 and L-1 applicants for adjustment
family dependents may continue to maintain their nonimmigrant
during the adjustment processing and may leave and return
to the United
States in such status, instead of securing advance parole,
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
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
''an occupation that requires--(A) theoretical and practical
of a body of highly specialized knowledge, and (B) attainment
bachelor's or higher degree in the specific specialty (or
equivalent) as a minimum for entry into the occupation in
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
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
education, business specialties, accounting, law, theology,
arts, and which requires the attainment of a bachelor's
degree or higher
in a specific specialty, or its equivalent as a minimum
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
To determine whether a given
position qualified, the Service has applied
certain criteria, which it codified in its 1990 regulations
following the 1990 Act, has modified only slightly to read
(1) A baccalaureate or higher
degree or its equivalent is normally the
minimum requirement for entry into the particular position.
as the statutory definition of specialty occupation suggests,
should be in a specific field, although the Service in the
recognized that qualification in many occupational specialties
restricted to a single major or discipline but may include
range of disciplines.'');
(2) The degree requirement is common to the industry in
positions among similar organizationsn or, in the alternative,
employer may show that its particular position is so complex
that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent
(4) The nature of the specific duties are so specialized
that knowledge required to perform the duties is usually
the attainment of a baccalaureate or higher degree. Note
regulation sets out these criteria in the alternative, providing
opportunities for a given position to qualify as a specialty
LABOR CONDITION APPLICATION| LCA:
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
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
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
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,
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.
Administrators (Illinois: Lynn Doherty Director Department
of Employment Security 401 South State Street Suite 624
Chicago, IL 60605 Phone: (312) 793-9279 FAX: (312)
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.
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
The H-1B provisions of the Omnibus Appropriations Act
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,
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.
This Act, and Public Law 108-441 (Dec. 3, 2004), provides
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
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
Premium Processing Service within 15 calendar days of the
receipt, the Bureau of Citizenship and Immigration Services
(CIS) will issue an
approval notice, notice of intent to deny, request for evidence,
issue a notice if an investigation for fraud on the relating
application is deemed necessary. If it is unable to process
petition or application within 15 calendar days, the fee
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
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
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
also be eligible to request this Premium Processing Service:
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
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
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 thedocumentation
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
the H-1B petition validity period. The passport should
also be valid past the intended departure date, or she
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
on or after December 18, 2000, and before October 1, 2003,
must be accompanied by a $1,000 fee in addition to the
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.
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.
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.
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.
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.
6) Provides for one-year extensions of authorized H-1B
stay in cases of permanent residence adjudications lasting
365 days or longer.
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.
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.
9) Directs the National Science Foundation to conduct
a study of the divergence to high technology access (digital
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.
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.
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
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
is an interactive web site that links h-1b job seekers
Facsimile System: form filler and LCAfax software
for H-1b applications. ETA is implementing
nationally a Automated Fax-In/Fax-Out System for processing
Labor Condition Applications (LCA's) for H-1B Nonimmigrants.
The system is designed to reduce the processing time
LCAs and to save resources.
FOR THE VISA: A system for
booking non-immigrant visa interviews. Interviews may
be booked at the U.S Embassy in Ottawa, Canada and selected
Consulates and Consulates General in Canada and Mexico.
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
4. Rate of pay
5. Hours worked/daily and
6. Total daily or weekly straight
7. Total overtime compensation
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
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
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
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.
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
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
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.
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,
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.
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.
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
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
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
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
is then entered onto a one-page form that is submitted
the Department of Labor. Depending on which regional
office of the Department of Labor you are dealing with,
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.
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 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
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