|
H1B temporary workers are defined as persons who will perform services in specialty occupations on a temporary basis. The Immigration Act of 1990 defines
specialty occupation as: "an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation." To qualify as a "specialty occupation" the position must meet the following requirements. All five criteria must be met:
- A baccalaureate or higher degree (or its equivalent) is normally the minimum requirement for entry into the particular profession.
- The degree requirement is common to the industry.
- The employer must normally require a degree or its equivalent for the position.
- The job duties must be "so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or
higher degree."
- The position's level of responsibility and authority must be "commensurate
with professional standing." The H1B status can be used to bring temporary faculty members, researchers, consultants, administrators, or individuals engaged in a variety of professional-level activities to the United States.
To qualify for H1B status, the alien must possess the required degree or its
equivalent or possess a certificate or license that permits the alien to immediately practice the profession in the state of intended employment. The H1B is employer specific; the employee may only work for the employer who filed the H1B petition and can only perform the job included in the petition. (Concurrent employment is possible, if each employer has an approved H1B petition.) The spouse and unmarried minor children (under age 21) of an H1B worker are granted H-4 immigration status. Applications for H-4 classification should be included in the petition for the H1B worker if the dependents are in the U.S. Filing instructions are on the back of the H1B Request Form. Dependents in H-4 status are not eligible for employment.
Temporary Employment:
The H1B is a temporary visa. The alien must be coming to temporarily fill a position that may or may not in itself be temporary. The employer must attest
that the alien's services are needed temporarily. The letter of appointment and other documents must stipulate the temporary nature of the appointment.
Obtaining the H1B for Employment:
Begin the H1B process at least six months prior to the requested H1B
employment date. After determining that the person qualifies for H1B status, the employer must obtain the Labor Conditions Application (LCA). Once the certified LCA is received, the H1B petition will be filed. The petition must show that the foreign national is entering the United States or changing to H1B status for the purpose of temporary employment. The petition must be accompanied by supporting documents such as degrees or academic records, licenses to practice a profession, and letters and other documents attesting to the alien's qualifications. Photocopies of original documents may be submitted, but original documents must be available for inspection by the U.S. Citizenship and Immigration Services (USCIS) upon request. Any documents in a foreign language must be accompanied by an English translation. The translator must certify the accuracy of the translation and his or her competency in the language to be translated and English. This statement must be notarized. Credentials from less well-known foreign academic Institutions must be evaluated for U.S. equivalency by a recognized credentials evaluation service. Once received by USCIS, the petition can take many months to be processed, and unexpected delays can occur. For this reason, please allow six months for USCIS processing before the official start date of employment. USCIS has instituted a Premium Processing Service in which they will adjudicate a complete petition within 15 calendar days of receipt; the processing fee is $1,000 (separate check required). The H1B approval is granted on USCIS Form I-797 and a new Form I-94: Departure Record is issued.
Legal Penalties:
Careful attention should be given in completing the Request Form. By signing, the employer is attesting to the accuracy of the information that is on the form and supporting
documents. To knowingly furnish any false information; conceal or cover up information; make any false, fictitious or fraudulent statements or representations, or make or use
any false writing or document in the preparation
of a U.S. government document , or to aid, abet, or counsel another to do so is a felony, punishable by a $10,000 fine or five years in the penitentiary, or both (18 U.S.C. 1001).
Period of Stay:
An H1B may be initially issued for a period of up to three (3) years. The period of the H1B cannot exceed the validity of the LCA. Extensions may be
obtained, but the total period of authorized stay cannot exceed six (6) years, unless the individual has progressed through the requisite steps leading toward permanent residency. If the employer dismisses the alien prior to the expiration of the authorized stay, the employer is liable for the reasonable cost of return transportation for the alien abroad.
Extension:
Your permission to stay in the United States ends on the expiration date of your I-797 approval notice or your current I-94 Departure Record card. Extensions up to a six year
maximum period in H1B status are possible provided your department is willing to sponsor you for an extension.
Extension Procedure:
Discuss extension with your supervisor at least seven months before your
current H1B status expires. Upon decision to extend, the employer will commence with the steps outlined above in "Obtaining the H1B for Employment."
How long can an alien be in H-1B status?
Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year
before another H-1B petition can be approved. Certain aliens
working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:
- 365 days or more have passed since the filing of any application for labor
certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
- 365 days or more have passed since the filing of an EB immigrant petition.
You may travel while the extension petition is pending until the expiration date of your current H1B status; if this date has passed and you still have not
received a new I-797 approval notice, you should NOT travel outside the U.S. You will need the approval notice for the extension to re-enter the U.S.
While you have a pending H1B extension, you may continue working for 240 days beyond the expiration date of your current H1B status.
Change of Status:
Nonimmigrants in most status categories may change their status to H1B. The most common exception encountered is nonimmigrants in J-1 status that are subject to the two-year foreign residency requirement.
Transferring Employers:
Due to the new portability provisions of Public Law 106-313 (Title I),
Section 105, it is possible to "transfer" H1B status to another employer based on the timely filing of a petition for new employment by that sponsoring employer. Upon receipt by that employer of the "receipt notice" from USCIS, which indicates that USCIS has received the petition and the date on which it was received, the beneficiary is eligible for employment with the new sponsor.
Essential Documents:
Please make photocopies of your immigration documents and keep them in a safe place, separately from the originals. Photocopy the following documents:
- passport pages that have your picture and personal information, as well as official information;
- passport page with the appropriate visa stamp on it;
- both sides of your Form I-94;
- both sides of your I-797 approval notice;
1. Passport: Your passport is your own government's permit for you to leave and re-enter your own country. You should keep your passport valid at all times
(most passports contain an expiration date). Consult your own consulate or embassy in the U.S. to renew your passport. The consulate officials will tell you what forms and fees, if any, are required. You can find the addresses of your country's consulate or embassy here.
2. Visa: The visa stamp placed in your passport by the U.S. consul is needed
to enter the United States but has no bearing on how long you can remain. It also indicates the classification status you will have upon admission to the United States (e.g., H1B). It is necessary to renew your visa if the visa has expired and you are planning on both traveling outside the North American continent and returning to the U.S. You may renew your visa by visiting the U.S. consul in the country to which you are traveling or by making application while in the US (Visa Revalidation). Visa Revalidation is only possible if you already have been issued an H1B visa stamp. The Visa Revalidation
process is outlined here.
3. Form I-94, Arrival/Departure Record: The I-94 shows that you have been admitted to the U.S. The I-94 is usually stapled onto the U.S.
visa page of your passport. It contains an eleven-digit
identifying number (called your departure number) that the USCIS uses to keep track of your arrival in and departure from the United States. The USCIS sometimes refers to the "departure" number as the "admission" number. There will be a date written in the upper right-hand corner of your I-94. You must either leave the U.S. by that date or apply to extend your stay. If you have changed to H1B status within the United States, you will have received a new I-94 personal record card (attached to the bottom of the form I-797A) that supersedes your previous I-94 card obtained upon entry in your prior visa classification.
4. Form I-797 approval notice: The Form I-797 approval notice indicates that
USCIS has approved the H1B petition and has either changed the beneficiary's status to H1B (in which case a new I-94 card is issued, attached to the bottom of the Form I-797A) or indicated the consulate to which they have sent notice of the petition's approval (Form I-797B). The form will state the validity period of the H1B petition.
Incidental Employment:
The H-1B petition is employer specific and job specific. The H1B beneficiary
can only be employed by and paid by the employer who sponsored the beneficiary of the H1B petition; in addition, they can only be employed in the specific job for which the H-1B was applied. No other employment is allowed, unless another prospective employer files an H1B petition for concurrent employment.
Taxes:
Employees in H1B status are subject to Social Security tax (OASDI and MEDICARE). H1B status employment is also subject to federal and state income
tax, unless tax exemption is specifically provided by treaty or convention. Employees in H1B status may also qualify for resident status for tax purposes if they meet the "substantial presence" test. Departing aliens in H1B status are formally required to obtain a sailing (exit) permit from the Internal Revenue Service.
What if the aliens circumstances change?
As long as the alien continues to provide H-1B services for a U.S. employer,
most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employers business will not affect the aliens status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.
Must an H-1B alien be working at all times?
As long as the employer/employee relationship exists, an H-1B alien is still
in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
Can an H-1B alien intend to immigrate permanently to the U.S.?
Yes. An H-1B alien can be the beneficiary of an immigrant visa petition,
apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.
Travel:
An H1B employee traveling outside the U.S. should be certain to have all
necessary documents for entry into all countries he or she intends to visit and for re-entry into the U.S. If an H1B visa needs to be obtained, it will be necessary for the employee to present a valid passport, the original Form I-797, a copy of the H1B petition, and a letter confirming current employment to a U.S. Consulate or Embassy outside the U.S.
|
