H1B temporary workers are
defined as persons who will perform services in
specialty occupations on a temporary basis. The
Immigration Act defines specialty occupation as: "an
occupation which requires theoretical and practical
application of a body of highly specialized knowledge to
fully perform the occupation." To qualify as a
"specialty occupation" the position must meet the
following requirements. All five criteria must be met:
- A baccalaureate
or higher degree (or its equivalent) is normally the
minimum requirement for entry into the particular
profession.
- The degree
requirement is common to the industry.
- The employer must
normally require a degree or its equivalent for the
position.
- The job duties
must be "so specialized and complex that knowledge
required to perform the duties is usually associated
with the attainment of a baccalaureate or higher
degree."
To qualify for H1B
status, the alien must possess the required degree or
its equivalent or possess a certificate or license that
permits the alien to immediately practice the profession
in the area of intended employment. The
H1B is employer
specific; the employee may only work for the employer
who filed the H-1B petition and can only perform the job
included in the petition. The spouse and unmarried minor
children (under age 21) of an H1B worker are granted H-4
immigration status, with no employment authorization.
Period of
Stay:
An
H1B may be
initially issued for a period of up to three (3) years.
The period of the H1B cannot exceed the validity of the
LCA. Extensions may be obtained, but the total period of
authorized stay cannot exceed six (6) years, there are
exceptions to this rule,
contact
us for a consultation
to see if any apply to you. If the employer dismisses
the alien prior to the expiration of the authorized
stay, the employer is liable for the reasonable cost of
return transportation for the alien abroad.
Extensions beyond 6
years:
You may obtain an
extension of H-1B status beyond the 6-year maximum
period, when:
- 365 days or more
have passed since the filing of any application for
labor certification, Form ETA 750, that is required
or used by the alien to obtain status as an EB
immigrant, or
- 365 days or more
have passed since the filing of an EB immigrant
petition.
- Approved I-140
petition.
You may travel while
the extension petition is pending until the expiration
date of your current H1B status; if this date has passed
and you still have not received a new I-797 approval
notice, you should NOT travel outside the U.S. You will
need the approval notice for the extension to re-enter
the U.S.
While you have a
pending H1B extension, you may continue working for 240
days beyond the expiration date of your current H1B
status.
Temporary
Employment:
The H1B is a temporary
visa. The alien must be coming to temporarily fill a
position that may or may not in itself be temporary. The
employer must attest that the alien's services are
needed temporarily. The letter of appointment and other
documents must stipulate the temporary nature of the
appointment. Nevertheless, permanent residence may be
pursued while applying or in H-1b status as it is a
"dual-intent" visa.
Obtaining the
H1B for Employment:
You should begin
to prepare the H1B process at least six months prior to
the requested H1B employment date. Call our
Immigration law office for a
consultation to see if you qualify for this visa, every
case is different.
Legal
Penalties:
Careful attention
should be given in completing the Request Form. By
signing, the employer is attesting to the accuracy of
the information that is on the form and supporting
documents. To knowingly furnish any false information;
conceal or cover up information; make any false,
fictitious or fraudulent statements or representations,
or make or use any false writing or document in the
preparation of a U.S. government document , or to aid,
abet, or counsel another to do so is a felony,
punishable by a $10,000 fine or five years in the
penitentiary, or both (18 U.S.C. 1001).
Extension
Procedure:
Discuss
extension with your supervisor at least seven months
before your current H1B status expires. Upon decision to
extend,
call our office,
we will help you through the process.
Transferring Employers:
Due to the new
portability provisions of Public Law 106-313 (Title I),
Section 105, it is possible to "transfer" H1B status to
another employer based on the timely filing of a
petition for new employment by that sponsoring employer.
Upon receipt by that employer of the "receipt notice"
from USCIS, which indicates that USCIS has received the
petition and the date on which it was received, the
beneficiary is eligible for employment with the new
sponsor.
Essential
Documents:
Please make
photocopies of your immigration documents and keep them
in a safe place, separately from the originals.
- passport visa
page, and biographical page.
- passport page
with the appropriate visa stamp on it;
- both sides of
your Form I-94;
- both sides of any
I-797 approval notices;
1. Passport: Your
passport is your own government's permit for you to
leave and re-enter your own country. You should keep
your passport valid at all times (most passports contain
an expiration date). Consult your own consulate or
embassy in the U.S. to renew your passport. The
consulate officials will tell you what forms and fees,
if any, are required. You can find the addresses of your
country's consulate or embassy here.
2. Visa: The visa
stamp placed in your passport by the U.S. consul is
needed to enter the United States but has no bearing on
how long you can remain. It also indicates the
classification status you will have upon admission to
the United States (e.g., H1B). It is necessary to renew
your visa if the visa has expired and you are planning
on both traveling outside the North American continent
and returning to the U.S. You may renew your visa by
visiting the U.S. consul in the country to which you are
traveling or by making application while in the US (Visa
Revalidation). Visa Revalidation is only possible if you
already have been issued an H1B visa stamp. The Visa
Revalidation process is outlined here.
3. Form I-94,
Arrival/Departure Record: The I-94 shows that you have
been admitted to the U.S. The I-94 is usually stapled
onto the U.S. visa page of your passport. It contains an
eleven-digit identifying number (called your departure
number) that the USCIS uses to keep track of your
arrival in and departure from the United States. The
USCIS sometimes refers to the "departure" number as the
"admission" number. There will be a date written in the
upper right-hand corner of your I-94. You must either
leave the U.S. by that date or apply to extend your
stay. If you have changed to H1B status within the
United States, you will have received a new I-94
personal record card (attached to the bottom of the form
I-797A) that supersedes your previous I-94 card obtained
upon entry in your prior visa classification.
4. Form I-797 approval
notice: The Form I-797 approval notice indicates that
USCIS has approved the H1B petition and has either
changed the beneficiary's status to H1B (in which case a
new I-94 card is issued, attached to the bottom of the
Form I-797A) or indicated the consulate to which they
have sent notice of the petition's approval (Form
I-797B). The form will state the validity period of the
H1B petition.
Incidental
Employment:
The
H-1B petition is
employer specific and job specific. The H1B beneficiary
can only be employed by and paid by the employer who
sponsored the beneficiary of the H1B petition; in
addition, they can only be employed in the specific job
for which the H-1B was applied. No other employment is
allowed, unless a petition for H-1b is applied for.
Taxes:
Employees in H1B
status are subject to Social Security tax (OASDI and
MEDICARE). H1B status employment is also subject to
federal and state income tax, unless tax exemption is
specifically provided by treaty or convention. Employees
in H1B status may also qualify for resident status for
tax purposes if they meet the "substantial presence"
test. Departing aliens in H1B status are formally
required to obtain a sailing (exit) permit from the
Internal Revenue Service.
What if the
alien�s circumstances change?
As long as the alien
continues to provide H-1B services for a U.S. employer,
most changes will not mean that an alien is out of
status. An alien may change H-1B employers without
affecting status, but the new H-1B employer must file a
new Form I-129 petition for the alien before he or she
begins working for the new employer. The merger or sale
of an H-1B employer�s business will not affect the
alien�s status in many instances. However, if the change
means that the alien is working in a capacity other than
the specialty occupation for which they petitioned, it
is a status violation.
Must an H-1B
alien be working at all times?
As long as the
employer/employee relationship exists, an H-1B alien is
still in status. An H-1B alien may work in full or
part-time employment and remain in status. An H-1B alien
may also be on vacation, sick/maternity/paternity leave,
on strike, or otherwise inactive without affecting his
or her status.
Can an H-1B
alien intend to immigrate permanently to the U.S.?
Yes. An
H-1B alien can
be the beneficiary of an immigrant visa petition, apply
for adjustment of status, or take other steps toward
Lawful Permanent Resident status without affecting H-1B
status. This is known as "dual intent" and has been
recognized in the immigration law since passage of the
Immigration Act of 1990. During the time that the
application for LPR status is pending, an alien may
travel on his or her H-1B visa rather than obtaining
advance parole or requesting other advance permission
from Immigration to return to the U.S.
Travel:
An
H1B employee
traveling outside the U.S. should be certain to have all
necessary documents for entry into all countries he or
she intends to visit and for re-entry into the U.S. If
an H1B visa needs to be obtained, it will be necessary
for the employee to present a valid passport, the
original Form I-797, a copy of the H1B petition, and a
letter confirming current employment to a U.S. Consulate
or Embassy outside the U.S.
