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H-1B – Hojinpark Lawyer

H-1B

Non-immigrant visa for a foreign worker
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H-1B is a non-immigrant visa for a foreign worker admitted to the United States to perform services in a specialty occupation.

Specialty Occupation:

To qualify as a specialty occupation, the position offered to the foreign worker must meet one of the following requirements:

  • A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
  • The degree requirement is common to the industry in parallel positions among similarly-situated employers or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; OR
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree.

 

A contractor, who is not claimed as an employee for tax purposes and whose work is not controlled by the petitioner, may not qualify the H-1B.

Your Eligibility:

In order to perform services in a specialty occupation, you must meet one of the following criteria:

  • Hold a U.S. bachelor’s or higher degree as required by the specialty occupation;
  • Possess a foreign degree determined to be equivalent to a U.S. degree as required by the specialty occupation;
  • Have any required license or other official permission to practice the occupation in the state in which employment is sought; OR
  • Have education, specialized training or progressively responsible experience that is equivalent to completion of a U.S. bachelor’s or higher degree program, and have a recognition of expertise through progressively responsible positions directly related to the specialty occupation.

Unlike in employment-based Green Card case, your knowledge of foreign business culture and/or your foreign language skills can be of help in getting an approval in an H-1B case.

Employer’s Financial Ability to Pay:

It is noteworthy that the sponsoring employer’s financial status is not an important concern in an H-1B case. In other words, a newly-established company which has never filed its corporation income tax return yet or a company which is struggling against financial difficulties may sponsor a future employee’s H-1B visa application.

Restrictions in Time for Filing and Visa Number Available:

The U.S. immigration law limits the number of an H-1B visa per fiscal year to 65,000 for bachelor’s degree holders (commonly referred to as the “H-1B Cap”) and additional 20,000 for U.S. master’s or higher degree holders (referred to as the “H-1B Master’s Cap”). And, a U.S. employer is not able to submit the visa petition until April 1st of each year.

A person, who has already counted within the past six years, cannot be counted against the Cap. And thus, he or she can apply for another H-1B with a new employer, as not being subject to the Cap.

In case that more than 65,000 (and additional 20,000 for Master’s Cap) H-1B petitions arrive at the USCIS in the first five business days of April, the USCIS will select the cases to be “received” through a computer-based random selection process (a/k/a lottery). In case your case is not selected from the lottery, the entire H-1B petition packet including the USCIS filing fee checks will be returned.

 LCA (Labor Condition Application):

Prior to employing an H-1B temporary worker, the U.S. employer must first file an LCA with the Department of Labor (DOL) and then file an H-1B petition with the USCIS.

In the LCA, the employer must attest that it will comply with certain labor requirements, including (1) the employer will pay the H-1B worker the amount of wage that is equal to, or more than, the wage paid to similarly qualified U.S. workers (it is called “prevailing wage” determined by the U.S. Department of Labor), and (2) the employer will adhere to working conditions that will not negatively impact existing, similarly employed workers. There must not be a strike or lockout at the time of LCA application and a notice of the application with the Labor Department must be provided to the union representative if applicable or be posted at the business place in order to give a notice to other workers.

A notice must be posted, or where there is a union it must be given to the union, for a total of 10 days on or within 30 days before filing the LCA. The notice must be posted “in at least two conspicuous locations at the place of employment.

Length of Stay:

You can obtain an H-1B visa status for up to three years, initially. After the first 3-year, you can apply for an extension for another 3-year period. Normally, 6-year is the maximum length of an H-1B visa status.

At the end of the six-year period, you must either change to a different visa status, if eligible, or depart the U.S. After staying outside the U.S. for at least one year, you may be eligible for a new six-year period of admission in H-1B status.

Initiation of Employment:

Employer must begin paying petition-stated wage when the employer makes him/herself available for work but in no event later than within 30 days of employee’s entry or 60 days from employee’s change of status if in the U.S.

“Benching” is Not Allowed:

An employer must continue to pay an H-1B worker who is not working due to a nonproductive status at the direction of the employer (for example, due to lack of work, or lack of a license). Employer is liable for nonproductive time as well as productive time once employee becomes eligible for work.

Change in Employment Terms & Conditions:

  1. Successor Company

Neither a new LCS nor an amended H-1B petition is required where the sponsoring employer is involved in a corporate restructuring, such as a merger, acquisition or consolidation, where a new corporate entity succeeds to the interests and obligations of the original employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.

  1. Minor Changes

When (a) employer changes its legal name; (b) changes ownership; or (c) the employee’s place of employment is changed within the area of employment specified on the LCA, a new LCA should be filed and posted while an amended petition is not needed.

  • Substantial Changes

If a change is material, the employer must file a new LCA and also file an amended petition with the USCIS, as well. A change in occupational classification or permanent relocation to a place outside the area of employment specified on the LCA would be regarded as material.

Portability:

A person in H-1B status may accept new employment upon the filing (meaning, physical receipt) of a new petition by the prospective employer if: (1) he or she was lawfully admitted; (2) the new petition is non-frivolous; (3) the new petition was filed before the date of expiration of his/her period of stay; and (4) subsequent to the entry to the U.S., he or she was not employed without authorization before the filing of such new H-1B petition.

A person may port to new employer even if his/her I-94 has expired as long as former employer filed extension while the I-94 was still valid and the extension petition is still pending at the time of the port.

Exceptional Extension Beyond Six Years:

  1. If a permanent labor certification or an I-140 immigrant petition was filed at least 365 days prior to the expiration of your current H-1B, your H-1B may be extended beyond the 6-year limitation, in one-year increment.

An extension may be granted if a denied or revoked L/C is on appeal to BALCA, or if a denied I-140 petition is on appeal.

  1. An H-1B may also be extended beyond the 6-year period for a person who is a beneficiary of an employment-based immigration case (EB-1, EB-2 or EB-3) and due to per country limitations, he or she is unable to submit either an I-485 application or an application for an immigrant visa.

After Extension Petition is Filed:

If and in case that a petition for an extension of stay to work for the same employer is filed in a timely manner, you are eligible to work lawfully for 240 days beyond expiration of your I-94 while the petition is pending.

Site Visit after Approval:

After the H-1B visa petition is approved, an USCIS officer may visit your company without previous notice to confirm if all the employment terms and conditions are true and have been abided by. So, anyone in the company either who supervises you or who is responsible for the company’s HR matter, should have a clear understanding of the official title, weekly work hour, main job duties, and wage of you.

DISCLAIMER

Neither your receipt of information from this website nor your use of this website to contact Ho Jin Park, Esq. creates an attorney-client relationship between you and Ho Jin Park, Esq. The materials, included in this website, are for informational purposes only and are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. Many of the practice summaries on this website describe results obtained in matters handled for Ho Jin Park, Esq.'s clients. These descriptions are meant only to provide information about the activities and experience of Ho Jin Park, Esq., as not intending as a guarantee that the same or similar results can be obtained in every matter undertaken by Ho Jin Park, Esq.