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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

H-1B Visa General Overview

by Vamsi Tamirisa And Jagan Tamirisa

What is an H-1B visa?

It is the most commonly used visa classification to employ nonimmigrant worker temporarily in a "specialty occupation".

What is "Specialty Occupation"?

Occupation that requires theoretical and practical application of a body of highly specialized knowledge which requires attainment of a bachelor's degree or its foreign equivalent as a minimum for entry into the occupation. Example Programmer Analyst, Systems Analyst, Project Managers, Market Research Analyst, Sales Manager, Marketing Manager, Sales Engineer etc.

Is there a limit on H-1B visas? YES

  • General Quota - Current annual limit = 65,000 visas
  • MINUS 6,800 set aside for Singapore and Chile ("special quota")
  • Total visas open for all countries including India = 58,200
  • US Master's Quota - 20,000 additional H-1B visas are available for Master's or higher degree graduates from US Universities.

    When is the best time to file for H-1B?

    We can ascertain a pattern of filing when we look at the filing trends for the past years.

  • 2004 the cap reached October 1, 2004
  • 2005 the cap reached August 10, 2005
  • 2006 the cap reached May 26, 2006

    This shows that the earlier the case is submitted, the better its chances are of being accepted. Note that the H-1B Petitions can be submitted 6-months ahead of the employment start date. That is in 2007, cases can be filed from April 1, 2007 for an employment start date of 10/1/2007.

    Are there any cap exemptions?

    Yes. Under the following scenarios, H-1B applicants will not be subject to cap:

  • Extensions - Extending time of current H-1B worker to remain in US
  • Amendments - Changing terms of existing employment (Examples: change in work location, promotion in the job, company mergers/acquisitions, reduction or increasing the number of hours of work, changes in job duties)
  • Change of Employers - Transfers - Current H-1B worker changing employers
  • Concurrent Employment - Current H-1B worker working concurrently for a new employer
  • Non-Profit - Workers employed at institutions of higher education or a related or affiliated nonprofit entity or at nonprofit research organization or governmental research organization
  • Physicians working under State 30 or federal government agency waivers based on serving underserved communities.

    What are the advantages in applying for an H-1B?

    Unlike many other nonimmigrant visa categories, H-1B is a "dual intent" visa. That is, an H-1B visa holder can apply for permanent residency.

    Are there any conditions to be met by the employer in order to employ a H-1B worker?

    Yes. This is very important section. The Department of Labor (DOL) is authorized to frequently audit companies who hire nonimmigrants under H-1B program to check for compliance with H-1B laws and regulations outlined below. Failure to comply can result in stiff penalties such as fines and disqualification of the employer from hiring H-1B workers permanently. The following rules are to be followed by the employer to ensure compliance:

  • H-1B worker must be paid 100% of the prevailing wage;
  • H-1B worker must be paid during non-productive status (no benching is allowed)
  • Employer must attest that there is no strike or lockout or layoffs in the area of employment;
  • Employer must attest that the working conditions of H-1B worker will not adversely affect the working conditions of similarly employed U.S. workers
  • Employer must provide a copy of Labor Application to the H-1B worker within 3-days from employment start date and also provide a copy of the same to the bargaining unit where available or in absence of a bargaining unit, post the labor application at the place of employment for 10 consecutive business days and document the posting.

    What sanctions do employers face for Labor violations?

    Depending upon nature of the violation, stiff penalties can apply ranging from $1,000.00 to $35,000 per violation. Usual violations range from failure to document strike/lockout, misrepresenting facts in the labor application, employee discrimination to displacement of US worker 90-days before and after submission of H-1B petition.

    How long can a person stay in H-1B status? Are there any exceptions?

    Maximum period allowed is 6 years. After that worker must remain outside US for 1-year before another H-1B petition can be approved. However there are exceptions. Certain H-1B workers can extend their status beyond the 6 years in one year increments if:

  • 365 days or more have passed since the filing of any application for labor certification 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.

    With the recent introduction of premium processing of immigrant visa petitions, H-1B workers can extend their status in 3 year increments if their immigration visa petition is approved.

    How does an H-1B worker change or add a new employer?

    Most common problem faced by H-1B visa holder is when they fail to adhere to regulations while switching employers or changing the terms of his or her employment. Perhaps the most difficult problem encountered is when someone changes jobs without taking into account immigration repercussions. In computer related occupations, it is normal for an individual to change jobs frequently. But for an H-1B visa holder, each change presents a challenge.

    The fundamental rule is that an H-1B visa is employer specific. That is, it only entitles the worker to work for the employer approved by USCIS. That means that each time a worker switches a job, a new H-1B Petition is required. In the past, the worker had to wait for the petition to be approved before he could begin working for the new employer. However under new regulations under AC21, worker can start employment for the new employer immediately upon submission of the H-1B transfer petition and receipt of notice from CIS.

    What if worker changes employers and then decides to go back to old employer?

    The H-1B petition continues to remain valid until it expires or until the employer has revoked it. Immigration takes the position that if neither of the above has occurred, one can resume work with the first employer without filing a new petition or an amendment.

    What if several employers file multiple H-1Bs for the same worker?

    Let's say that 2 employers successfully file an H-1B petition and the worker decides to join company A. However, after coming to U.S, he decides to work for company B. Even if the worker never worked before for company B, he can switch to company B without filing a new petition. However, a revocation of the petition by company B or the expiration of the visa approval period for company B would mean a new petition is required.

    What if worker accepts job with second employer without giving up the current position? That is Concurrent Employment?

    An H-1B worker can work for multiple employers simultaneously. However, each employer must have a separate approval for the worker to work there.

    What changes trigger amendments to H-1B Petitions?

    There are many a time when a change in the nature of one's employment triggers the need to file either an amendment to an existing H-1B petition or a completely new petition. Immigration has taken a view that if the change in employment is "material" then an amendment must be filed. That is, if there is a major change in job duties, then a new petition will probably be necessary. Transfers to a different legal entity within the same corporation may trigger an amendment. Finally, in certain cases, changing job sites/locations could require an amendment.

    Mere changes in job titles without a major change in job duties may not require an amendment. The same applies for raise in salary unless the change is so great that immigration presumes that the position is really a new one.

    Also, change in the corporate structure of a company may trigger a new H-1B petition submission. The general notion is that if a new legal entity is created, a new petition is required. This would be the case, for example, if a company is sold and the new company dissolves the old company without assuming its liabilities. A merger that results in the creation of a new company might also mean that new petitions should be filed. If the new company is a "successor in interest" then a new petition is normally not necessary as long as the new company assumes assets & liabilities of the old company including immigration liabilities of its employees. Changes in a company's name will not trigger the need for an amendment or to refile, but an amendment is a good idea.

    Must an H-1B worker be working at all times?

    As long as the employer/employee relationship exists, an H-1B worker is in status. An H-1B applicant can work full or part-time and remain in status. An H-1B alien can be on vacation, sick/maternity leave, strike without affecting his or her status.

    Can an H-1B worker travel outside the US?

    Yes, provided he has a valid H-1B visa stamped in his passport. Also, a worker on whose behalf an immigrant visa petition was filed, can reenter US using his H-1B visa, during the validity period of his H-1B status.

    What are the filing fees associated with an H-1B visa? Are there any situations where training fees can be avoided?

    There are three governmental filing fees associated with H-1B cases.

    (A) Base filing fee (compulsory): $190. Please note that USCIS is proposing an increase of this fee to $320.00. We do not know, when this will go into effect (if at all it does) but at this time the base filing fee is $190.00

    (B) Training fee (compulsory fee in limited circumstance): This depends on the number of employees in the company:

    (1) If there are 25 or less full-time equivalent employees in the US (including employees of affiliates and subsidiaries) training fee is $750

    (2) If there are 26 or more full-time equivalent employees in the US (including employees of affiliates and subsidiaries) training fee is $1,500

    Training fee can be avoided in any of the following situations:

  • Employer is an institution of higher education as defined in the Higher Education Act of 1965; or a nonprofit organization or entity related to, or affiliated with an institution of higher education.; or nonprofit research organization or governmental research organization, that is primarily engaged in basic research and/or applied research; or
  • Employer is filing a second or subsequent request for an extension of stay for the same H-1B worker
  • Correcting USCIS error;
  • Filing an amended petition which is not accompanied by any request for extension of stay
  • Employer is a primary or secondary education institute; or
  • Employer is a nonprofit entity which engages in an established curriculum-related clinical training or students register at the institution.

    Finally there is a 3rd fee, of $500 for fraud prevention.

    (C) Premium Processing fee (optional fee): Additional $1000 if the H-1B Petition needs to be processed within 15 working days.


    About The Author

    Vamsi Tamirisa and Jagan Tamirisa Mr. Vamsi Tamirisa is a Senior Research Associate at the Law Offices of George T. Ramani & Associates. He can be contacted at vtamirisa@yahoo.com. Mr. Jagan Tamirisa is also a Senior Research Associate at the Law Offices of Rakesh Mehrotra. He can be contacted at jtamirisa@gmail.com. Note that the information contained above is intended to educate public generally about immigration, its benefits and is not intended to provide solutions to any individual's situation(s). This document has been compiled using several resources, including but not limited to the Internet. The information is generalized and on "as is" and "as available" basis without warranties of any kind. Therefore the general information being provided in this document must not to be construed as a legal advice.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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