H1 b status
H-1B visa or status allows a highly skilled foreign professional to work for a U.S. employer in a specialty occupation. Like all non-immigrants, H1Bs duration of stay is temporary and are restricted to activities permitted under their status. Dependent spouses and children of H-1B nonimmigrants will be granted H-4 visas and the H-4 spouse may apply for employment authorization in certain circumstances.
1. The foreign national is a person in a specialty occupation.
2. The alien must be coming to the U.S. on a temporary basis (though maintenance of a foreign residence is not required)
3. The Petitioning Employer must obtain a certification from DOL that it has filed an LCA in the occupational specialty (does not apply to DOD category – H-1B2).
4. An H-1B visa number must be available
5. The employer must agree to pay costs and salary. The employer must pay for the petitioning process. The employer must also pay the reasonable cost of return transportation abroad of the H-1B employee if the employer terminates the employee before the expiration of his period of employment. INA §214(c)(5)(A). The employer must also pay the non-immigrant at the required wage for the occupation listed on the LCA within 30 days of admission to the United States or 60 days of a change of status to H-1B, if in the United States. INA §212(n)(2)(C)(vii)(III).
Form I-129 and h classification supplement to form I-129
The first step in the h1b process is for am employer to file a Labor Condition Application LCA for the specialty occupation with Department of Labor. After the LCA is certified, the H-1B petition is filed on form I-129, Petition for a Nonimmigrant Worker. Employers must also complete the H Classification Supplement to Form I-129 and the H-1B Data Collection and Filing Fee Exemption Supplement, which are part of this petition. The petition is eligible for premium processing, whereby, a decision will be made with 15 days of selection if subject to the cap or receipt if not subject to the cap.
Dual Intent for H1B
The law permits H-1B nonimmigrants to have what is known as “dual intent.” Dual intent is important because certain nonimmigrant with a pending immigrant petition or application may be denied admission to the United States. Under dual intent, an H-1B nonimmigrant may be the beneficiary of an immigrant visa petition filed under Section 203 of the INA or seek LPR status without evidencing an intention to abandon a foreign residence for purposes of obtaining or maintaining H-1B status. See INA 214(h); see also 8 CFR 214.2(h)(16).
Numerical limitation – H1B Visa Cap and Cap Exemptions
Unlike some nonimmigrant visas for business personnel, there is a numerical cap on the number of H-1B visas that the Attorney General can issue in any fiscal year. The H-1B visas are capped at 65,000 per year less the carve-out for free trade visas for nationals of Chile (1400) and Singapore (5800) resulting in 58,200 H-1Bs. The numerical limitation only applies to the principal alien and does not apply to spouse and children. INA 214(g)(2).
Not all H-1B petitions, however, are subject to the cap. An exemption from the H-1B cap is available for the following H-1B petition categories:
1. Advanced degree exemption – Beneficiary who has earned a master’s or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)). The exemption will apply until the number of aliens exempted from such numerical limitation during such year exceeds 20,000. Once 20,000 visas are reached, Master’s degree petitions will be counted against the overall cap.
2. J-1 physician beneficiary granted a waiver based on the recommendation of an Interested Government Agency (IGA) – Conrad 30 Waiver Program or Federal IGA waiver.
3. Beneficiary who is employed (or has received an offer of employment) at an institution of higher education, or related or affiliated nonprofit entities,
4. Beneficiary who is employed (or has received an offer of employment) at a nonprofit research organization, or governmental research organization
5. H-1B currently employed with an exempt or non-exempt employer (amended or H-1B transfer petition) – INA §214(g)(6). A person who has already been counted within the past six years is not counted against the cap unless the H-1B would be eligible for a new six years of H-1B status at the time the petition is filed. A person could be entitled to a new six years if he or she were out of the country for one year or if the work was seasonal, intermittent, or less than six months per year.
Determining Employment Authorization for H-4 dependent Spouse of H1B
Effective May 26, 2015, an H-4 dependent spouse of H-1B nonimmigrant is eligible for employment authorization if the H-1B nonimmigrant:
• Is the primary beneficiary of an approved I-140 immigrant petition; or
• Has H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).
AC21 permits H-1B workers seeking employment-based lawful permanent residence to work and remain in the United States beyond the six-year limit.
H-4 dependent spouses must apply for employment authorization using form I-765. If USCIS grants employment authorization, H-4 dependent spouses will receive a Form I-766, Employment Authorization Document (EAD), as proof of their authorization to work.
The regulatory changes help to prevent family separation in two career families because it alleviates the economic stress when only the H-1B nonimmigrant can work. Often H-4 dependent spouses may be skilled workers whose careers could suffer from lack of employment authorization if they remain in the United States without working. It also allows U.S. employers to retain highly skilled H-1B nonimmigrants.
Need H1b visa help?
If you are a professional or an F-1 on OPT, you may have many questions about requirements for H-1B status, as well as your obligations under the relevant regulations which govern such h1b status. You may want to move from h1b to green card status using an employment or family-based petition and you may have many questions before forms are filed. Alternatively you may be seeking an h1b leave of absence or need an h1b employment verification letter for travel abroad.
Employers of h1bn workers should know their obligations to pay wages even when the employee is not performing work. An employee may be interested in making an H-1b transfer to a new employer or applying for permanent residence. If you need help with an H-1b matter or work visas, contact our immigration law firm for legal advice and representation by an h1b visa lawyer. Request a consultation today!