WHAT IS THE H-1B VISA?
For viewers conflicted about using their time in pursuit of more knowledge regarding the H-1B visa, if you have a job offer and possess the equivalent of a U.S. bachelor's degree, you may qualify for the H-1B visa. The maximum amount of time that an individual can apply for an H-1B petition is three years at one time, for a maximum total of six years.

BOTTOM LINE: COSTS INVOLVED IN FILING FOR AN H-1B VISA?
Please note that the fees have increased. Employers with more than 25 full time employees must pay $1500; while employers with less than 25 full time employees must pay $750.00. The filing fee is now $500 in addition to the standard $185 filing fee for I-129 petitions, unless the U.S. employer is an "exempt organization." Exempt organizations are nonprofit or governmental research organizations. Also included under exempt organizations are institutions of higher education, or related or affiliated nonprofit entities. If an employer qualifies under one of the above exemptions, Form I-129W should be completed and submitted with a check for $185. Premium processing costs $1000.

IS THE EMPLOYER REQUIRED TO PAY FOR FILING THE H-1B PETITION?
Yes, unless this is the second or subsequent request for an extension of stay that an employer has filed for the H-1B beneficiary. In instances where a new employer has received approval for a change in employment for an H-1B nonimmigrant and subsequently seeks an extension of stay for that H-1B employee, the new employer must also pay the additional $500 filing fee for its first request for extension of stay, regardless of whether the prior employer had requested an extension of stay for the H-1B nonimmigrant. Similarly, a U.S. employer seeking authorization for a change from one specialty occupation to another for an H-1B employee must pay the additional $500 fee, irrespective of whether the requested change of employment is the first or multiple request for the same H-1B employee. Amended petitions do not require the additional fee unless the petition has the effect of extending the nonimmigrant's status.

Employers cannot require the H-1B nonimmigrant to reimburse or otherwise creatively compensate the employer for any part of the H-1B petition filing fee. Since the filing fee is solely the employer's burden, the INS will reject remittances from an H-1B beneficiary or the beneficiary's agent that accompanies the H-1B petition. A remittance from an attorney should be accepted by the INS, but the most conservative course of action would be for the employer to write a check payable to the Immigration & Naturalization Service at the time of filing the petition.

DO VISA CAPS APPLY TO ME?
Caps are not applicable for current H-1B nonimmigrants filing for extensions of stay, amendments of terms of current employment, change of employers (i.e., sequential employment), certain professionals and concurrent employment.

CAN I SPONSOR MYSELF FOR THE H-1B VISA?
You must be sponsored by a "U.S. employer." What if you are the employer in the form of a company that you establish? INS regulations define employer as "a person or entity...who engages the services or labor of an employee to be performed in the United States for wages or other remuneration."

Since the H-1B petition must be approved prior to commencing employment, and it is difficult, although not impossible, for a "paper" company with zero employees and no income to be considered an employer capable of sponsoring an H-1B applicant, the dilemma to overcome is establishing a company with enough viability to be approved by the INS without technically being employed in the interim. One way to remain within the law is to establish a company with the help of other investors. The most conservative position is to be only a "passive investor" as opposed to exercising substantial decision-making power in the company. An individual cannot be accused of being employed without authorization if he or she is only a passive investor in the company that will sponsor him or her for the H-1B visa. To summarize, an individual cannot be "employed" until his or her employer petitions for and receives H-1B approval.

WHAT IS THE DIFFERENCE BETWEEN H-1B STATUS AND H-1B VISA?
A change of status is obtained if the beneficiary is in the U.S., while a visa has to be obtained from outside the U.S. For example, an individual in F-1 (student) status can change status to H-1B upon approval of the H-1B petition filed by his or her employer. The individual may commence employment immediately (as per the terms of the approval notice) without having to leave the U.S. and being issued an H-1B visa at a U.S. Consulate abroad. If the H-1B beneficiary needs to travel abroad at some point, it is necessary to obtain an H-1B stamp (visa) in the passport from a consulate abroad in order the re-enter the U.S. in H-1B status.

Conversely, an individual outside the U.S. can have an H-1B petition filed on his or her behalf by the employer and take the INS's approval notice to the nearest U.S. Consulate to be issued an H-1B visa.

The only way a visa can be extended in the U.S. itself is if a person already has an H-1B stamp (visa) in the passport which the person can send to the Visa Office in Washington, DC for revalidation/reissuance. In all other cases, if the person has no visa stamp in the passport or has a visa stamp of a different type, such as B-1 (visitor) or F-1, the person has to obtain the H-1B visa from outside the U.S. at a U.S. Consulate. See our article on H-1B Renewal.

WHAT DOES "EMPLOYER-SPECIFIC" MEAN?
An H-1B visa is issued for one specific employer. A person on an H-1B visa cannot work for another employer until he or she obtains a second H-1B approval through the second employer.

CAN I WORK FOR MORE THAN ONE EMPLOYER?
Yes, but you must have an H-1B visa issued by each employer. Generally a person has one full-time H-1B visa and one part-time H-1B visa if he or she is working for two employers concurrently, but nothing prevents an individual from working full-time for two or more employers.

WHAT IS THE DURATION OF AN H-1B VISA?
H-1B'S are initially issued for three years and can be extended for another three years, for a maximum of 6 years. The clock starts ticking from the date of arrival and not from the date of visa issuance. Moreover, it is based on time actually spent in the U.S. on H-1B status; it is not based on the validity of the visa.

Therefore, if you spent significant amounts of time outside the U.S. during your six year stay, it is possible to "recapture" some of that time by extending the six year maximum. Please be prepared to provide evidence of significant periods (i.e., more than one month) of time spent outside the U.S. in H-1B status if you want to apply for an extension to get the benefit of time spent outside the U.S.

After the 6-year limit on an H-1B visa is reached, an individual can leave the U.S. for one year and re-enter on an H-1B visa. The one year abroad does not have to be in your home country or country of last residence.

CAN I WORK IN H-1B STATUS PRIOR TO APPROVAL?
No, unless you have transferred your H1B1 visa and the petition has been filed.

WHAT DOCUMENTS SHOULD I GATHER IN ANTICIPATION OF APPLYING FOR THE H-1B VISA?
Remember that an individual's employer will sign the H-1B petition to be filed with INS. A person can expedite the process by collecting his resume, all post-secondary diplomas, certificates and transcripts, and letters of experience from previous employers. If he or she does not have a U.S. bachelor's degree, arrangements should be made to have an academic evaluation completed to prove to the INS that the individual has the equivalent of a four-year U.S. bachelor's degree in the appropriate field. Please note that certain foreign bachelor's degrees are generally considered to be equivalent to only three years of U.S. college-level education; you may need to provide evidence of three years of relevant professional-level work experience in order for your degree to be equivalent to a U.S. bachelor's degree.

In addition, the H-1B applicant should gather a copy of the passport including Form I-94 and current visa, copies of paychecks, W-2, and current H-1B approval notice if the individual is currently on an H-1B visa, copies of evidence of current status (such as Form I-20 and employment authorization document for students on optional practical training), and any other relevant documents.

WHAT STEPS MUST BE COMPLETED PRIOR TO FILING THE H-1B PETITION?
The process begins with determining the prevailing wage. An H-1B employer is required to pay the higher of the prevailing wage for the position in the local geographical region (what similarly situated employers pay U.S. workers for the same position), or the actual wage paid to employees at the (sponsoring) company who hold similar positions. The most common source of determining the prevailing wage is the state employment security agency (SESA) where the H-1B applicant will work. The prevailing wage data as well as other information is entered onto a short (one-page) application called the labor condition application (LCA).

The LCA is submitted to the Department of Labor, which certifies it and returns it to the employer. The next step is to submit Form I-129 with H supplement to the INS, along with the certified LCA as well as information on the company and the nature and duties of the position and the beneficiary's background and education.

WHEN SHOULD I ENCOURAGE MY EMPLOYER TO FILE THE H-1B PETITION?
It is important to begin the process early, as certain SESA's can take up to two or three weeks to determine the prevailing wage. The LCA make take another two to three weeks to be certified by the DOL. The petition itself may take anywhere from one week to three months to be approved by INS.

In addition, INS caps (quotas) on H-1B visas argue even more strongly on the importance of starting the process early so that there is no interruption in legal status. Even those individuals subject to the H-1B quota for any fiscal year (October 1 to September 30) are encouraged not to wait for October 1 of the following fiscal year if the quota is reached for the current fiscal year. (Projections for FY 2000 have the quota reached by March, 2000). The earlier you file, the earlier will be the approval date on the H-1B petition. The extra time will enable your employer to utilize your services faster.

MY SIX YEARS IN H-1B STATUS ARE ABOUT TO EXPIRE. WHAT NEXT?
A prospective immigrant to the U.S. should actively explore various immigration procedures during the first or second year of H-1B status if he or she does not want to leave the U.S. for one year in order to re-enter on H-1B status. A application for alien employment certification (PERM) may take upwards of 120 days to be approved.

An individual may consider changing to another nonimmigrant status, but many of these visas may not permit authorization to work. Student status is a possibility if there is offer of admission to a full-time program. Another option would be to work abroad for an employer's offices overseas for one year and re-enter the U.S. on L-1 status under the Immigrant Manager/Executive category.

HOW TO BRING SPOUSE ON H-4 VISA
An H-1B holder's spouse can change status if in the U.S. or the spouse may apply for the H-4 visa abroad. Requirements are the I-129H (H-1B) approval notice, Attorney certified copy of Form I-129H and LCA, copy of all supporting documentation filed with Form I-129H, Marriage Certificate, Birth Certificate and original passport (of spouse), letter of employment from H-1B holder's employer, notarized copy of passport, bank statement or tax returns showing enough income to support spouse, recent paychecks, a few wedding photographs and wedding invitation card, and visa fee. Do not submit original documents since they are unlikely to be returned, but originals should be available upon request by a Consular official. Some of the above documents are not required for change of status, but the above list is a comprehensive reference of documents that should be immediately available.

MY EMPLOYER MERGED WITH ANOTHER EMPLOYER; DO I FILE AN AMENDED PETITION?
An amended petition is required when the following changes occur: The job duties of the H-1B beneficiary change significantly to the extent that the duties are no longer similar to the position identified on the I-129 petition filed with INS; when the H-1B beneficiary is assigned to a location in an area of employment not listed on the original LCA or when the employer's tax identification number is changed; when the H-1B employer merges with another company creating a third entity which will subsequently employ the beneficiary; when the H-1B beneficiary is transferred to a different legal entity within the employer's corporate structure.

Please note that an amended petition may not be required where the new corporate entity has assumed the rights and obligations of the original employer. Acquisitions involving asset purchases must be evaluated to assure that the purchasing company has acquired all of the rights and obligations of the original employer.

WHAT IS MY STATUS IF I AM IN OPT (F-1 STATUS) AND THE H-1B QUOTA IS REACHED?
Optional Practical Training (OPT) is a form of work authorization normally granted for one year to students after completion of their studies. The OPT enables a student to work for any employer and gain valuable work experience. It is never too early to seek out an employer willing to sponsor for the H-1B visa.

INS has recently stated that for fiscal year (FY) 1999 it will accommodate F and J visa holders in valid status whose employers filed a timely (i.e., prior to the expiration date of their present status) H-1B petition. Petitions in this category would be adjudicated with a start date of October 1, 1999 and they (including spouse and child) would be permitted to remain in the U.S. while waiting for new H-1B visas to become available on October 1, 1999. However, they are not permitted to work or engage in any other activity that would be in violation of their F and J status. The INS has clarified that there is no requirement that the F or J visa holders should have filed for change of status prior to the cap having been reached.

The above INS regulation will apply to F and J nonimmigrants for FY 2000 and beyond. However, it is never too early or too late to start the H-1B process for those who intend to make the U.S. their temporary or permanent home.

WHAT DOCUMENTS SHOULD I TAKE WITH ME TO BE ISSUED AN H-1B ABROAD?
For Canada and Mexico the applicant will receive an appointment letter with a list of documents that they should carry with them. They include the following: Appointment Letter from the Consulate; Original Approval Notice of H-1B petition (Form I-797); Attorney certified copy of Form I-129H and LCA; copy of all supporting documentation filed with Form I-129H; copy of degree evaluation, if any, equating foreign degree to U.S. degree; diplomas and transcripts; letter from employer stating title, salary, duration and nature of employment; completed application form (OF-156); passport-size photo; visa fees; pay stubs and W-2; passport.

WHAT IF I VIOLATED MY STATUS?
The best method to remain violation free--even if you have never actually violated status--is to keep a record of all documents related to your immigration matter. These documents may be called upon to verify maintenance of status when filing an application or petition to change status, extend status, or adjust status (end stage of "green-card" processing)

When adjusting status, it is mandatory to show that the applicant has continually maintained valid legal status throughout the entire stay in the U.S. Please note that there is a 180 day grace period accorded to employment-based cases in the first three preference categories and an exception for applications by immediate family members of U.S. citizens. There is no fine or penalty for overstays of up to 180 days; the applicant should never remain in unlawful status for more than 180 days. If he or she exceeds the 180 day limit, it may still be possible for the applicant to apply for adjustment of status in the U.S. (as opposed to consular processing) by paying a "penalty" fee of $1000 to INS provided the application for labor certification, or visa petition in the case of family members, was filed prior to January 15, 1998.

SEVERAL EMPLOYERS HAVE FILED H-1B PETITIONS FOR ME. ANY PROBLEM?
No. It is perfectly legal to be sponsored by several employers and to pick and choose which employer(s) you prefer to work for. However, in these days of inadequate H-1B quotas it may be prudent to inform employers who petitioned for you to withdraw the petitions with INS both to avoid confusion and to open up extra H-1B slots for others.

HOW DO I TRAVEL WHEN MY ADJUSTMENT OF STATUS IS PENDING?
The Immigration and Naturalization Service now permits H-1 and L-1 visa holders who have applied for adjustment of status to travel without advance parole.

Adjustment of status is the last step in the process towards permanent residency. Obtaining adjustment of status may take well over one year. Prior to the new rule, an adjustment applicant was unable to depart the U.S. temporarily without first seeking advance parole. If a person left without advance parole, the application would be deemed abandoned.

The new INS policy allows a nonimmigrant on an H-1 or L-1 visa who is in the U.S. temporarily to maintain such status while an application for permanent residency is pending. The law already permits people on H-1 and L-1 visa to maintain a “dual intent” with respect to their stay in the U.S. The bottom line is that the new rule exempts H-1 and L-1 nonimmigrants remaining in valid status with a pending adjustment of status application (as well as their dependent family members remaining in valid status) from having to obtain advance parole prior to traveling outside the United States. Such individuals can be re-admitted on the H-1 and L-1 visas (or the dependent visas).

H-1 and L-1 visa holders have the option of applying for "general" employment authorization upon applying for adjustment of status. General employment authorization allows the adjustment applicant to work for another employer. Please note that if an individual chooses to work for employers not authorized by the H-1 or L-1 visa terms, however, and thereafter wishes to travel, advance parole will be required, and the applicant would no longer be considered to be in valid H-1 or L-1 status.

What is PERM?
PERM, Program Electronic Review Management, is a new set of regulations governing the Alien Employment Certification process that will come into effect on March 28, 2005. As of that date, the current labor certification system will be entirely replaced by the new PERM regulations. PERM is expected to reduce the processing time of labor certification applications to two to five months from the current period of up to five years. There is no filing fee for PERM.

Who can apply for Alien Employment Certification with the Labor Department under the new PERM program?
Any alien in valid immigration status with a willing and able employer provided that the alien meet the necessary requirements for the job position.

What are the procedures under the PERM program?
Applications filed under PERM must be accompanied by the following required information/documentation:

1. Prevailing Wage: Prevailing wage determination – under PERM, the wage must be 100% of the prevailing wage. The prevailing wage must be paid from the time the alien is admitted to the US as a permanent resident.

2. Pre-filing Recruitment: While the PERM recruitment process mirrors the current RIR (Reduction in Recruitment) process, it is much more stringent with regard to the recruitment process.

(a) Posted Notice - The employer must post a notice of job opportunity for at least ten consecutive business days, between 30 and 180 days prior to filing the application.

(b) Use of Other In-House Media - In addition to printed notice, the employer must use in-house media in accordance with normal procedures used for recruitment for similar positions in the organization.

(c) Job Order - The employer must place a job order for a period of 30 days, listing the start and end dates of the job order.

(d) Advertisements - The employer must place two advertisements on two different Sundays in a newspaper of general circulation. Both ads must be placed more than 30 days, but not more than 180 days, before filing the application. The ads may be placed on consecutive Sundays and must list the name of the employer, the area of employment and a description of the job.

(e) Three Additional Recruitment Steps for Professionals - The employer must complete at least three of the following recruitment efforts for a professional position:

1. job fairs;
2. employer’s website;
3. job search website other than employer’s site;
4. on-campus recruiting;
5. trade or professional organizations;
6. use of private employment firms;
7. employee referral programs with incentives;
8. notice of job opening at campus placement office, if the job requires a degree but no experience;
9. local or ethnic newspapers; and
10. radio and television advertisements.

One of the recruitment steps may take place within 30 days of filing, but no recruiting efforts may take place more than 180 days before filing.

Recruitment Report: The recruitment report must describe the recruitment steps and results, including the number of people hired, number of US workers rejected, and lawful job-related reasons for rejections.

Documentation must be kept for five years – The employer must retain supporting documentation for five years from the date of filing including, but not limited to, all documents related to the prevailing wage determination, internal notices, recruitment efforts and the recruitment report. If the Department of Labor audits an application, failure to provide the requested documents will result in denial of the application and may result in up to two years of supervised recruitment.

How can I convert my pending Application for Alien Employment Certification for filing under PERM?
If an employer with a pending labor certification wishes to submit a labor certification for the same job under PERM, it must first withdraw its regular or RIR application and resubmit the application under PERM. Re-filed applications must comply with all PERM requirements. Applications that are successfully withdrawn and re-filed will retain the original filing date (priority date). The re-filed application must be for an identical job opportunity, containing the same employer, alien, job title, job location, job description and minimum requirements, as well as any changes made in response to an assessment notice from the SWA.

Is it risky to withdraw my pending labor certification application and re-file under PERM?
No. If the applicant meets the requirements for education and experience of the PERM application, the PERM application should be approvable. Even if a PERM case is denied, the applicant could quickly re-file another PERM case, correcting any deficiencies in the first case. Since PERM applications are processed so quickly, the second PERM case would be reviewed long before most cases pending under the current labor certification process.

Please contact the LAHLAW Group LLC at info@lahlaw.com with any questions regarding PERM.