H-1B Visas: General Info and Procedures

By September 14, 2016Immigration

Visas for Business personnel include H, L, E, I, O, P, Q, and R visas.Joseph Jung, Walker Law Firm

There are seven categories of H visas.
H-1B: specialty occupation
H-1B1: Fast track H-1B
H-1C: Professional nurses working in Health Professional Shortage Area (HPSA)
H-2A: Temporary agricultural workers
H-2B: Skilled/unskilled workers provided USCs/LPRs unavailable
H-3: Trainees
H-4: Accompanying family members

1. Person in a specialty occupation (including fashion, DOD cooperative, etc).
2. Dual intent visa.
3. Foreign residence is unnecessary because the “intent of the H-1 applicant in regard to non-immigrant or immigrant status is totally irrelevant.
4. Labor Condition Application – petitioner must obtain certification from DOL that it has filed an LCA in the occupational specialty. LCA are also required for H-1B1 and E-3.
5. Employer must pay petition-stated wage within 30 days of employee’s entry or 60 days from employee’s C/S if in the US.
6. Employer must pay the costs for the petition process.
7. Employer may not impose a penalty on an H-1B for leaving employment. However, an employer may require an employee to sign a liquidated damages clause as long as it is valid under state law.
8. If the H-1B employee is terminated prior to the end of the period of admission, the employer is liable for “the reasonable costs of return transportation of the alien abroad.
9. Cap of 65,000 H-1B visas per fiscal year less trade visas for Chile and Singapore.
10. Following are exempted from the H-1B cap:
[a] J-1 physicians who have obtained a waiver
[b] Beneficiaries of employment offers at institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations, or government research organizations
[c] Private employers associated with institution of higher education or nonprofit and there is “nexus” between the work performed
[d] Persons (up to 20,000) who possess a US-earned master’s or higher degree
[e] H-1Bs in CNMI and Guam
[f] Person who is extending H-1B status. Person who has already been counted within the past 6 years, unless H-1B would be eligible for a new 6 years of H-1B status at the time the petition is filed
[g] Spouse and children of H-1B

Cap-Gap problem
A person applying for C/S where H-1B cap is reached will be treated as O/S if he or she falls O/S before the beginning of the next fiscal year on Oct. 1.

For example, in April, a person who is in valid B-2 status until June 1 applies for C/S (change of status) to H-1B with an Oct 1 start date for the new fiscal year. H-1B cap for the new year is reached on April 1. Even if the petition s approved, the applicant will be considered O/S (out of status) beginning June 1 and due to the gap between June 1 and Oct 1, the C/S will be denied. (Cannot claim that the person was in lawful status on a B-2 once C/S was filed before Oct. 1).

A petition filed after the cap is reached will not be accepted, unless filed at the beginning of April 1 for the start of next fiscal year Oct. 1.

An employer may not file more than one H-1B petition for each prospective employee during the fiscal year. But does not preclude petitions from related employers (e.g., parent and subsidiary companies or affiliates) from filing petitions for the same beneficiary. Employer must demonstrate a legitimate business need to do so.

USCIS will accept all H-1B petitions during the first 5 business days before conducting a random selection process so that applicants need not file the application exactly on April 1st of the year.

Petitioner/employer must be US employer.

Self-petitioning owner is not an employee.

Independent contractor is not an employee.

Staffing company is not an employer unless petitioner retains control over employee’s work, salary, and advancement.

The employer must establish that it has the right to control the beneficiary’s work, including the ability to hire, fire, supervise, and be responsible for the overall work and that it will do so for the duration of the H-1B.
[a] itinerary services or engagements and the location where work will be performed
[b] signed employment agreement detailing the terms and conditions of employment
[c] employment offer letter that clearly describes the nature of employer-employee relationship and the services to be performed
[d] relevant portions of contract with clients if employee will work off-site
[e] signed contractual agreements, statements of work, work orders, service agreements, and letters between petitioner and authorized officials of the ultimate end-client companies
[f] position description or documentation that describes the skills for the job
[g] beneficiary’s pay records and payroll summaries
[h] beneficiary’s time sheets
[i] prior year’s work schedules
[j] examples of work product created by employee
[k] dated performance reviews
[l] employment history records that include date of hire, promotions, transfers, etc

H-1B procedure begins when employer files Form I-129.

Fees to DHS:
1. Standard I-129 fee: $325 as of 2015 / $1,225 for premium processing
2. $1,500 if employer has more than 25 full time employees / $750 if less than 25 full time employees – INA §214(c)(9)
3. $500 fraud prevention and detection fee – INA §214(c)(12)
Bonus: if employer has more than 50 full time employees AND 50% of the employees are H-1Bs or L-1s, the employer must pay a fee of $2,000 in addition to the other fees

Petitions usually filed with Vermont or California Service Centers.

Copy of LCA must be submitted.

Petition validity will be recorded as of date of work not date of approval.

Documentation requires
1. Degrees; evidence of experience; written contracts
2. Evaluations
3. License, etc
4. Proof of ability to pay salary is not required

If there is change in employee location, appropriate LCA need to be filed and certified, appropriate work site posting is in place, and other wage and hour obligations are met, then no amended petition is required.

Petition may be approved up to 3 years and extended for maximum of 6 years.
An extension may be given for more than one year (in on year increments, up to 3 year maximum) only when there is time remaining in the first 60 year period.


For more information on H-1B Visas contact Joseph at [email protected]