H-1B is a non-immigrant, temporary status given to individuals in a “specialty occupation” or profession. It is the most common type of visa for professionals from India-Pakistan region to come to the U.S.A.
Aliens seeking H-1B visas (hereinafter the beneficiary) must have at least a four year Bachelors degree or its equivalent. Thus, if someone has a three year B.A. degree, it is not enough. Usually requires at least a Masters degree from India or Pakistan. However, work experience can be substituted for education. Usually three years of work experience in a specialty occupation is equivalent to one year of study.
In a job that requires a license to practice, the beneficiary must obtain a license. Teachers in Texas can have a deferred plan in lieu of a license, and obtain the license while teaching.
An entity situated in the U.S. must sponsor the beneficiary in a job that requires the education and skill that the beneficiary possesses. For example, a beneficiary who has a degree in English and no experience in computers cannot be sponsored for a job as a network administrator. He can only be sponsored for a job which requires the services of an English Major.
AVAILABILITY OF H-1B NUMBERS
The current number of NEW H-1Bs given in a fiscal year (Oct 1 to Sept 30) are capped at 65,000 for the fiscal year. The year starts on October 1. One can file a petition 6 mts before, ie from April 1. Last year the cap was reached on October 1, the start date of the year. That means that no non-excludable, newly filed H-1Bs will be adjudicated after October 1. New petitions can only be filed after April 1 of the following year, for a start date of October 1 of the next year. This number is based on new petitions, excluding those for institutions of higher learning or non-profit research organizations. Note that this cap does NOT apply to beneficiaries already possessing the H-1B visa or those who will work in an educational or non-profit research institution.
EVALUATION OF FOREIGN CREDENTIALS
If a beneficiary’s education is in a foreign country, then an evaluation of her foreign credentials may be necessary to prove to the INS that she has the educational equivalent of a four year Bachelor’s degree in the U.S. If the beneficiary possesses work experience, then detailed recommendation letter from the employer is needed. All mark sheets, copies of degrees, work recommendation letters are then sent to an evaluation specialist who writes an opinion on whether the beneficiary possesses the required qualification. A copy of this evaluation is attached to the H-1B petition
LABOR CONDITION APPLICATION (LCA)
The employer must attest to the Department of Labor that
A. It is paying the beneficiary the prevailing wage
B. There are no strikes or lock outs in the classification that the beneficiary is seeking work
C. Notice of the LCA is given to all employees
The LCA is filed electronically and is certified instantly.
Prevailing wage can be obtained from DOL’s wage library, from SESA or from other private sources.
LCA RETENTION FACTORS
- The Employer should sign the certified LCA
- Two Copies of the signed LCA must be displayed prominently in the work place of the beneficiary in a prominent place for 10 consecutive days or electronically notify all workers in the same classificationat the worksite.
- Keep the Wage determination and certified LCA in a file accessible to the public and retain payroll records until 1 year after the H-1B beneficiary quits empoloyment
- File a new LCA if the employee is transferred to a new work site, and do all of the above. This new LCA is not filed with the USCIS
H1B DEPENDENT EMPLOYERS
An employer with a significant number of H-1B employees are classified as dependent employers and has to make additional attestations to the Department of Labor. An employer is classified as Dependent if:
- It has 51 or more employees and 15% of its workforce are H-1B workers.
- It has 26-50 employees and more than 12 H-1B employees.
- It has 25 or less employees and more than 7 H-1B employees.
For counting the number of H-1B employees for this purpose, exclude the H-1B employees who earn more than $60,000/- or who has an equivalent of Masters Degree or Higher education.
Reporting false information can lead to civil penalties from $1000 to $35,000 and barring the employer from applying for H-1B non-immigrant worker from one to three years.
FILING THE PETITION WITH THE INS
The last step involves filing the petition with Form I-129 and H supplement along with the certified LCA to the INS Service Center. Except for educational institutions and non profit research organizations, most other employers must pay a special H-1B ACWIA fee depending on the number of Employees the Employer has at the time of filing.
After filing the petition with the INS the normal processing time varies. Premium Processing i.e. quicker processing is available with an additional government fee payment. Premium Processing is usually completed within 2 weeks of the receipt of the petition by the INS.
With a second or subsequent employment, the H-1B beneficiary can start working with the second or subsequent employer as soon as the H-1B petition is filed with the INS, instead of waiting for the approval of the petition.
PERIOD OF STAY
H-1B is usually given for an initial period of three years and extended for a total of six years. Within that time if a beneficiary has not adjusted status to a green card holder/permanent status, then the beneficiary must stay out of the U.S. for a whole year before entering on another H-1B.
Extensions after the six years are given if:
- The H-1B worker has a pending adjustment of status petition or a preference petition and a priority date of more than 365 days
- The H-1B worker could otherwise file for adjustment but is not eligible because of visa unavailability due to per country limits.
“I AM LAID OFF, NOW WHAT”
The H-1B is dependent on the Employee/Employer relationship. So once a beneficiary is laid off, she looses status. Unfortunately it takes some time to look for a new job. The INS can and does very often ask for pay stubs to prove that the individual was in status at the time of filing the subsequent H-1B petition. It is probably better to change to a visitors’ visa during the time that she looks for another job.