This is a discussion on H-1B visa within the Law Wiki forum, part of the Create Wiki Article category; The H-1B is a non-immigrant visa in the United States under the Immigration & Nationality Act, section 101(a)(15)(H). It allows ...
|POST NEW QUESTION|
||Article Tools||Search this Article||Rate Article||Display Modes|
The H-1B is a non-immigrant visa in the United States under the Immigration & Nationality Act, section 101(a)(15)(H). It allows U.S. employers to employ foreign guest workers employed in specialty occupations. The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.
The H-1B visa category allows organizations with a Federal Identification Number/IRS tax number to employ a foreign professional to work in a specialty occupation for up to six years. Examples of specialty occupations include accountant, computer analyst, engineer, financial analyst, scientist or architect.
Benefits of the H-1B Visa
Requirements for the H-1B Visa
A. Criteria for Determining Employer's Eligibility
To be eligible for sponsoring an H-1B visa, the employer must prove that:
B. Criteria for Determining Employee's Eligibility
To be eligible for an H-1B visa, you must demonstrate that you have:
C. Positions Generally Considered Professional
Accountant, Acupuncturist, Chiropractor, Computer Programmer, Dietitian, Electronics Specialist, Fashion Designer, General Manager (where business is complex), Graphic Designer, Hotel Management, Industrial Designer (with B.A.), Interior Designer (commercial), Journalist, Librarian, Medical Records Librarian, Medical Technologist, Minister, Orthopedist, Pharmacist, Social Worker, Technical Publications Writer and Vocational Counselor.
Applying for the H-1B Visa
You cannot apply for an H-1B visa as an individual. A U.S. employer has to sponsor your H-1B visa. To sponsor you, the employer must:
If you are overseas, you must take the H-1B approval notice to the American Consulate to obtain the H-1B visa. If you are already in the U.S., you can start working for your employer as soon as you receive the H-1B approval notice.
Note: If you are currently on H-1B status, then you can start working upon filing of the new petition.
>>> Read more here... Labor Condition Application for H-1B - Easily Apply Online
ABOUT About H-1B
Duration of Stay
The duration of stay is 3 years, extendible to 6. An exception to maximum length of stay applies in certain circumstances: (i) 1 year extensions if a labor certification application has been filed and is pending for at least 365 days; and (ii) 3 year extensions if an I-140 has been approved.
Congressional Yearly Numerical Cap
There is an annual cap on H-1B admissions of 65,000 workers per fiscal year. The ceiling set by Congress was 115,000 in both FY1999 and FY2000, 107,500 in FY2001, and back to 65,000 in FY2002. The cap was raised by 297,500 over three years, FY2000-FY2002. 80,000 new H-1B visas were added for FY2000, 87,500 visas for FY2001, and 130,000 visas for FY2002. In addition, excluded from the ceiling are all H-1B nonimmigrants who work for universities and nonprofit research facilities. Free Trade Agreements allow a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.
The Department of Homeland Security approved about 132,000 H-1B visas in 2004 and 117,000 in 2005.
Visa renewals do not count towards the annual limits. Transfers among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt.
Employer Attestations to Protect U.S. Workers
The U.S. Department of Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect wages or working conditions of U.S. workers. Employers must attest that wages offered are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or alternatively, pay the prevailing wage for the occupation in the area of intended employment, whichever is greater. By signing the LCA, the employer attests that: prevailing wage rate for area of employment will be paid; working conditions of position will not adversely affect conditions of similarly employed American workers; place of employment not experiencing labor dispute involving a strike or lockout.
Prior to 2005, the law required H-1B workers to be paid the higher of the prevailing wage for the same occupation and geographic location or that which the employers pays to similarly situated employees. Other factors, such Age and skill were not permitted to be taken into account for the prevailing wage. Congress changed the program in 2004 to require the Department of Labor to provide four skill-based prevailing wage levels for employers to use. Employers using this system classify most workers at the lowest skill level. This is the only prevailing wage mechanism the law permits that incorporates factors other than occupation and location.
The law specifically limits the approval process of LCAs to checking for "obvious errors and inaccuracies." The approval process for these employer attestations simply amounts to the checking the form is filled out correctly.
Taxation status of H-1B workers
H-1B workers are legally required to pay the same taxes as any other U.S. resident, including Social Security and Medicare. Almost any person who spends more than 183 days in the U.S. in a calendar year is a tax resident and is required to pay U.S. taxes on their worldwide income. (The exceptions to this rule are very few in number; they include the case of students on F-1, foreign diplomats, G-4 visa holders working for international organizations, and people who would like to leave the U.S. but are prevented from doing so by a medical problem.) From the IRS perspective, it doesn't matter if that income is paid in the U.S. or elsewhere. If an H-1B worker is given a living allowance, it is treated the same by the IRS as any other U.S. resident. However since an H-1B visa is only valid for 6 years and Social Security benefit eligibility typically requires 10 years of work, most H-1B visa holders will not be able to make use of the Social Security benefits that they are contributing to.
According to the USCIS, "H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer." Enforcement of these rules depends upon the employee, however. The Department of Labor has neither the authority nor the manpower to investigate violations of these rules unless and until a complaint is made.
As the rules are written, there is no requirement that an American be sought to fill a position, nor given preference in layoffs unless the company is "H-1B dependent", i.e. 15 percent or more of its global workforce consists of H-1Bs earning less than $60,000 per year, exempting those who hold master's degrees. Only about one percent of H-1B employers are deemed "H-1B dependent," and even then the employer is only required to "attest" that he was not able to find an American. (The true level of H-1B dependence is most likely higher since the current rules for measuring H-1B dependence are applied across all occupations within a company including administrative, sales, marketing, and other technical positions, rather than specifically to the technology areas within a company for which an H-1B is granted.)
U.S. policy on maximum duration
In theory, the maximum duration of the H-1B visa is six years (ten years for exceptional Defense Department project-related work). H-1B holders who want to continue to work in the U.S. after six years, but who have not obtained permanent residency status, must remain outside of the U.S. for one year before reapplying for another H-1B visa.
There are generally two exceptions to the 6 year duration of the H-1B visa:
H-1B and legal immigration
Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself. However, in recent times the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries (like India, the Philippines and China) to obtain their green cards. Since the duration of the H-1B visa hasn't changed, this has meant a lot more H-1B visa holders have to renew their visas in 1 year or 3 year increments to continue to be in legal status while their green card application is in process.
Quotas and changes in quotas
The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Financial Year which begins on October 1. Applications for the upcoming Financial Year are accepted beginning on the preceding April 1 (or the first working day after that date). Those beneficiaries not subject to the annual quota are those who currently hold H-1B status or have held H-1B status at some point in the past six years and have not been outside the United States for more than 365 consecutive days. This annual quota has had a significant impact on the high tech industry. It has generally been set at 65,000 visas per year, with some exceptions for workers at exempt organizations like universities and colleges (note: contrary to popular belief, non-profit organizations are not automatically exempt, but may be so if affiliated with a university or college). In 2000, Congress permanently exempted H-1B visas going to Universities and Government Research Laboratories from the quota.
During the early years of this quota in the early 1990s, this quota was rarely actually reached. By the mid-1990s, however, the quota tended to be filled each year on a first come, first served basis, resulting in new H-1Bs often being denied or delayed because the annual quota was already filled. In 1998 the quota was increased first to 115,000 and then, in 2000, to 195,000 visas per year. This increase in the quota seemed to play a role in oversaturating an already softening high-tech job market. During the years the quota was 195,000, it was never reached, and the availability of high-tech jobs in the USA plummeted as there was just too much competition for positions.
In FY 2004, the quota reverted to 90,000 when the temporary increase passed by Congress in 1999 expired. Since then, the quota is again filling up rapidly every year, making H-1Bs again increasingly hard to get. More recently, the basic quota was left at 65,000 but with an additional 20,000 visas possible for foreign workers with U.S. advanced degrees. Of the 65,000 total, 6,800 are initially reserved for citizens of Chile and Singapore under free trade agreements with those countries; however, if these reserved visas are not used under the agreements, they go back to the general pool. Outside of the 65,000 quota, another 10,500 visas annually are available to Australian citizens under a similar but more flexible program, the E-3 visa program.
For FY 2007, beginning on October 1, 2006, the entire quota of visas for the year was exhausted within a span of less than 2 months on May 26, 2006, well before the beginning of the financial year concerned. The additional 20,000 Advanced Degree H-1B visas were exhausted on July 26. For FY 2008, the entire quota was exhausted before the end of the first day on which applications were accepted, April 2. Under USCIS rules, the 123,480 petitions received on April 2 and April 3 that were subject to the cap were pooled, and then 65,000 of these were selected at random for further processing. The additional 20,000 Advanced Degree H-1B visas for FY 2008 was exhausted on April 30.
In its annual report on H-1B visas released in November 2006, USCIS stated that it approved 131,000 H-1B visas in FY 2004 and 117,000 in FY 2005. The inflation in numbers is because H-1B visas granted to employees of not for profit organizations is not numerically capped.
Recent H-1B legislation requires certain employers, called H-1B dependent employers to advertise positions in the USA before petitioning to employ H-1B workers for those positions.
For firms of 50 employees, an H-1B dependent employer is defined as having more than 15% of their employees in H-1B status. Smaller firms are allowed to have a higher percentage of H-1B employees before becoming 'dependent'.
Worker protection and law enforcement
For every H-1B petition filed with the USCIS, there must be included a Labor Condition Application (LCA) certified by the U.S. Department of Labor. The LCA is designed to ensure that the wage offered to the non-immigrant worker must meet or exceed the "prevailing wage" in the area of employment. The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers for the purpose of breaking a strike, or for the purpose of replacing U.S. citizen workers. Under the regulations, LCAs are a matter of public record. Corporations hiring H-1B workers are required to make these records available to any member of the public who requests to look at them. Copies of the relevant records are also available from various web sites, including the Department of Labor.
Theoretically, the LCA process appears to offer protection to both U.S. and H-1B workers. However, according to the U.S. General Accounting Office, enforcement limitations and procedural problems render these protections ineffective. Ultimately, the employer, not the Department of Labor, determines what source it will use to determine the prevailing wage for an offered position, and it may choose among a variety of competing surveys, including its own wage surveys, provided that such surveys follow certain defined rules and regulations.
The law specifically restricts the Department of Labor's approval process of LCAs to checking for "completeness and obvious inaccuracies". In FY 2005, only about 800 LCAs were rejected out of over 300,000 submitted.
RECENT CHANGES TO U.S. LAW
The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the U.S. Department of Labor's PERM system for labor certification erased most of the earlier claimed arguments for H-1B's as indentured servants during the green card process. With PERM, labor certification processing times have been reduced to less than 90 days.
Because of AC21, the H-1B employee is free to change jobs if they have an I-485 application pending for six months and an approved I-140, if the position to which they are moving is substantially comparable to their current position. In some cases, if those labor certifications are withdrawn and replaced with PERM applications, processing times will improve, but the person will also lose their favorable priority date. In those cases, employers' incentive to attempt to lock in H-1B employees to a job by offering a green card is reduced, because the employer bears the high legal costs and fees associated with labor certification and I-140 processing, but the H-1B employee is still free to change jobs.
However, many people are ineligible to file I-485 at the current time due to the wide-spread retrogression in priority dates. Thus, they may well still be stuck with their sponsoring employer for many years. There are also many old labor certification cases pending under pre-PERM rules.
On May 25, 2006 the U.S. Senate passed immigration bill 2611 which contained several increases in the number of H-1B visas, including: 1) raising the base quota from 65,000 to 115,000, 2) Automatically increasing the base quota by 20% whenever it is reached with no provision for lowering it, 3) Adding 6,800 visas for trade agreements separate from the base quota, 4) Adding 20,000 visas for those with foreign graduate degrees, 5) Raising from 20,000 to unlimited the number of visas for those with U.S. graduate degrees, and 6) Making visas to non-profit organizations exempt from the quota. However, as the House refused to consider the measure, it died in conference and no H-1B increase was approved in time for the elections.
The USCIS has announced that after completing a policy review that it was clarifying that to avoid H-1B QUOTA, individuals who spent one year outside of U.S. and did not exhaust entire six year term can CHOOSE to be re-admitted for “remainder” of initial six-year period without being subject to H-1B cap. The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006.
The USCIS has also announced that after completing a policy review that it was clarifying that “any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006.
On May 24, 2007, the Senate considered amendments to the Comprehensive Immigration Reform bill (S. 1348) including the Sanders Amendment to increase the H-1B Scholarship & Training Fee from $1500 to $8,500 (for H-1B employers with more than 25 full time employees). The additional fee was to be used for training and scholarship programs and in addition to other existing fees. Senator Sanders listed the Teamsters Union and the AFL-CIO among supporters of his amendment. Without this amendment, Senator Sanders (I-VT) said, "skilled middle class and upper middle class Americans" would be hurt, and their wages would continue to be suppressed. Just prior to the vote, Senator Sanders announced that he had made changes to his amendment, dropping the fee for H-1B visas from the $8,500 he proposed earlier, down to $5,000. Following Senator Sanders’ announcement, Senators Kennedy and Specter expressed their support for the bill and the amendment passed by a vote of 59-35. Compete America, a coalition of U.S. tech companies, reported the passage of the Sanders amendment will "accelerate outsourcing and undermine U.S. economic growth."
TRANSFER H-1B TO OTHER COMPANY
To transfer your H-1B, valid employment in US is needed. Recent pay stubs (at least 60 days OLD) are needed to submit with last year w2 forms (if applicable). As per law, the petitions which were filed AFTER the last date of employment, are NOT eligible for change of status or change of employment because the applicant is out of status when he/she loses the job. The laidoff H-1B worker will be considered out of status even though if he has valid H-1B visa in his passport or valid I-94 card.
There is NO "Grace Period" permitted when an H-1B employee changes his employer. The USCIS is proposing implementation of a rule permitting an H-1B employee who no longer works for the original employer for some period of time to file an H-1B after leaving the current employer. This time frame could possibly be up to 60 days, as mentioned in the USCIS June 2001 Initial Policy Guidance Memo. Many USCIS Service Centers are currently applying a reasonable period of time standard, on a case-by-case basis, for favorable adjudication even though there is a gap between leaving an employer and filing a new H-1B petition.
DEPENDENTS OF H-1B VISA HOLDERS
H-1B visa holders are allowed to bring their immediate family members (spouse and children under 21) to the United States under the H4 Visa category as dependents. An H4 Visa holder may remain in the U.S. as long as the H-1B visa holder remains in legal status. An H4 visa holder is not eligible to work in the U.S. and is not eligible for a Social Security number (SSN). An H4 Visa holder may attend school, obtain a driver's license and open a bank account while in the US. Some recent state regulations prohibit H-4 visa holders from obtaining a driver's license in cases where driver's licenses are no longer being issued on Individual Taxpayer Identification Numbers alone and an SSN is required.
U.S. Department of State information on H-1B visa
H-1B Specialty (Professional) Workers
Compliance Assistance Employment Law Guide (H-1B Visas)
|Bookmark & Share|
|Article Tools||Search this Article|
|Display Modes||Rate This Thread|
|Thread||Thread Starter||Forum||Replies||Last Post|
|S visa or U visa could be exchanged to a permanent resident visa?||Unregistered||Other Immigration Law & Visas||2||Jan 25th, 2011 02:24 PM|
|Visa issue and costs -- Working for a college in China (tourist visa, Z visa)||Unregistered||Other Labor Law Matters||2||Dec 17th, 2010 09:53 AM|
|I 130 petition approved, waiting for visa number: Can I apply for J1 visa?||divyabhasin||Family-Sponsored Visas||1||May 7th, 2010 07:15 AM|
|Proposed Immigration Bill: Prevent Unauthorized Migration Visa (PUM Visa)||forum_admin||Other Immigration Law & Visas||0||Dec 20th, 2009 04:31 AM|
|Can I file in parallel I 130 visa with my brother's employers H1b visa?||geeta1||Family-Sponsored Visas||1||May 30th, 2008 02:38 PM|
Doing business in China? Need legal help or advice? Contact our international and Chinese lawyers 24 hours! WORLD Law Direct offers an experienced team of American and Chinese legal professionals.
All times are GMT -5. The time now is 10:59 PM.