H-1B Season Quickly Approaching

Starting on April 1, 2010, USCIS will begin accepting cap-subject H1B petitions, with employment start dates no earlier than October 1, for the fiscal year 2011 (FY11) H-1B cap season. USCIS will continue to accept petitions until the annual cap is met.

The most common non-immigrant category for temporary employment is the H-1B visa category. H-1B status is available to those individuals whose services are sought by a U.S. employer in a “specialty occupation.” Specialty occupations are jobs that require at least a bachelor’s degree or the equivalent in a specific field.

This visa category provides a mechanism for employers to hire temporary professional workers. This category covers a variety of occupational fields that normally require a bachelor’s degree or equivalent in a professional field. The key issues in determining eligibility for H-1B status are (a) whether the position is a specialty occupation and (b) whether the beneficiary meets the requirements for the specialty occupation.

Under the H-1B visa, the company can hire a foreign national for up to six years with an option to extend this temporary status beyond the six-year limit if the company is in the process of sponsoring the foreign national for permanent residence.

The annual quota of H-1B visas available has become a critical part of the H-1B filing strategy, as only 65,000 visas are available each year.

In fiscal year 2009, the cap was reached in the first few days that USCIS began to accept cap-subject H-1B petitions. In fiscal year 2010, however, cap numbers were available for nine months through December 21, 2009, due to the ailing economy and USCIS’ stricter interpretation and enforcement of regulations. While these factors still exist, employers are better off filing their cap-subject H-1B petitions on April 1 or as early as possible because it is impossible to know when the cap will be met.

In addition to those filed for individuals previously counted against the cap, H-1B petitions that are exempt from the cap include those filed by institutions of higher education or related nonprofit entities and by nonprofit or governmental research organizations.

The following are the customary steps that companies take when hiring a foreign national under the H-1B visa category:

1) Labor Condition Application (LCA) – This is required for each H-1B non-immigrant. The purpose of the Labor Condition Application is to ensure that neither U.S. workers nor foreign nationals are adversely affected by the wages and working conditions proposed in the H-1B petition. The LCA contains basic information about the proposed H-1B employment including the rate of pay, period of employment, and work location. By completing and submitting the LCA, the employer agrees to several attestations regarding the wages, working conditions, and benefits to be provided to the H-1B employee. The employer must document compliance with the LCA requirements in a public access file.

2) USCIS Forms – In addition to an approved LCA, the appropriate USCIS forms must be completed: Form I-129, Form I-129H, Form I-129 H-1B Data Collection Supplement with original signature. The petition also needs to include documentation that establishes that the position as well as the H-1B foreign national’s credentials meets the statutory requirements. This information collectively is often referred to as the petition and should be filed with the appropriate USCIS Service Center.

3) Approval of H-1B Petition – The petitioning employer will receive an approval notice (Form I-797). If the foreign national is already in the U.S., and a change of status is approved, he or she may normally start working on the authorized start date in the approval notice. If the foreign national is overseas, he or she will need to apply the H-1B visa with a consular officer at an American embassy or consulate. The foreign national’s immediate family members (spouse and unmarried children under age 21) will need to apply for the H-4 visa based on the principal foreign national’s H-1B approval. Although a visa petition need not be filed for derivative beneficiaries who are outside the United States, the immediate family members (i.e., spouse and children under the age of 21) need to show proof of relationship to the H-1B beneficiary through a valid marriage certificate for the spouse and birth certificates for the children.

4) The Foreign National’s Stay in the U.S. – Once the foreign national has entered the U.S. with a valid H-1B visa, he or she may start working immediately. The spouse and children, however, are not allowed to work under the derivative H-4 status.

As previously mentioned, the initial H-1B petition may be granted for up to three years, with an option to extend an additional three years. Any time not used is tolled and will be allotted to the foreign national until the maximum six-year period has been reached. When the initial three-year period is about to expire, the company must file an H-1B extension with the appropriate USCIS service center if it wants to continue to employ the foreign national. With good advance planning, an extension can be filed and approved prior to the expiration of the foreign national’s existing H-1B status. However, even if an extension is not granted prior to the expiration of the initial three-year visa period, a foreign national can still remain on a company payroll as long as the extension was filed before the current H-1B petition expired. In this situation, while the foreign national can continue working and stay on payroll, the H-1B employee and his or her family cannot engage in international travel until they have received their H-1B extension approval notices from USCIS, which are required to obtain new visas at an appropriate U.S. consulate.

Employers have certain obligations if an H-1B employee is dismissed during the H-1B period, including liability for the reasonable costs of return transportation of the beneficiary abroad (last place of residence) and the obligation to withdraw the H-1B petition. An employer’s letter to the USCIS withdrawing the H-1B petition ensures that it is no longer obligated to comply with the LCA requirements, including the agreement to pay the required wage, for the employee who has been terminated.

Because an approved H-1B petition is employer specific, companies that wish to hire a foreign national who already has H-1B status through another company will need to file a Form I-129 change of employer petition. Despite having to file a new petition, a company still benefits from hiring someone who already has H-1B status through a different employer.

First, that person is exempt from the H-1B annual cap of 65,000 because he or she has been previously counted. Any person who has been counted against the cap within six years before the approval of the petition will not be counted again unless that person has been out of the country for more than one year and would have another full six years of eligibility.

Second, that person may be able to start working when the new H-1B petition is filed and receipt notice received, instead of having to wait for the petition to be approved. The statute providing for the increased portability of H-1B status authorizes the new employee who previously had H-1B status to start working upon the filing of a new petition if that person has been lawfully admitted into the United States, the employer has filed a new non-frivolous H-1B petition on the person’s behalf during his or her period of authorized stay, and the H-1B beneficiary has not been employed without authorization.

Over the last year, the Department of Homeland Security has increased its monitoring and verification of H-1B petitioners and employees. For example, government officials are conducting site visits to each employer to verify that the petitioner is a bona fide organization and that the employee is actually employed at the company.

Given the number of variables that come into play in the context of the H-1B visa, it is best to consult with an immigration attorney.

Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.

About Igbanugo Partners International Law Firm

Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.

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  1. Probably all H1-B employees are much smarter than you, and earn higher salaries than you. You just happened to be born in the US, that doesn’t mean you could do the same job.

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