Immigration Issues

 

H-1B VISAS FOR PROFESSIONALS

By David Fullmer, Attorney

First time H-1B applicants must file on 4/1/08 in order to be considered in the H-1B visa lottery.

WHO IS ELIGIBLE

The H-1B nonimmigrant visa may be issued to individuals for employment by companies who seek temporary entry for employees at professional workers in a specialty occupation.  Some examples of “specialty occupations” include:  accountant, computer analyst, engineer, financial analyst, scientist, architect and lawyer.

In order for a position to qualify as a specialty occupation, the position must generally require a bachelor’s degree in a specific discipline related to the position.  The beneficiary must also hold the appropriate degree or its equivalent.  There are two ways in which a beneficiary might have the equivalent of the appropriate degree.

1. Beneficiary obtained a baccalaureate degree from a credentialed 4-year U.S. university, or from a foreign university.  The petition must be accompanied by evidence that the foreign university degree is equivalent to 4 years of college at a U.S. college or university.

1. The Beneficiary has a combination of college or university course work, plus three years work experience for each year of university education missing.  For H-1B purposes, this combination may be deemed equivalent to a four-year bachelor’s degree.

HOW TO APPLY 

A Labor Condition Application (LCA) must first be filed with the U.S. Department of Labor (DOL).  Once the LCA is approved, the employer fills out a Form I-129, Petition for Nonimmigrant Worker, and the supplemental form, along with supporting documentation, including the approved LCA.  The forms and documentation are then filed with the U.S. Citizenship and Immigration Services (USCIS) Service Center having jurisdiction over the city of intended employment.  The prospective U.S. employer files the petition along with the appropriate filing fee.  Once the USCIS approves the H-1B petition, a visa may be issued at a U.S. Consulate.

THE H-1B CAP

Congress has established an annual H-1B cap of 65,000 petitions per fiscal year (FY), which this year runs from October 1, 2008 to September 30, 2009. 

The earliest date for which a petitioner (company) may file a petition requesting an FY 2009 H-1B employment start date of October 1, 2008, the first day of the fiscal year, is April 1, 2008.  It is anticipated that over 130,000 applicants will file for 65,000 visas.  Immigration will hold a random lottery to determine the winners.

It is important to note that petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap, and thus the CIS will continue to process H-1B

extension petitions, as well as petitions to change employers and petitions to allow H-1B works to work concurrently in a second H-1B petition.  Furthermore, exempt from the H-1B cap are the first 20,000 H-1B workers to file who have earned a U.S. Master’s degree or higher.  Also exempt from the annual H-1B cap are foreign nationals who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit organization or a governmental research organization.

DURATION OF VISA

An H-1B is approved by USCIS for an initial of up to three years.  Generally, the maximum term of an H-1B visa is six years, including extensions, with the following exceptions.

EXTENSIONS BEYOND THE SIX-YEAR LIMITATION                 

The law provides for extension of H-1B status beyond the 6-year limit in two circumstances:

1. USCIS may extend H-1B status in one-year increments for any H-1B foreign national who is the beneficiary of an employment-based immigration petition or labor certification which has been filed at least 365 days prior.  Extensions may continue annually until the foreign national’s adjustment is adjudicated.  Thus, whether the alien labor certification or the immigrant petition is pending or approved, the H-1B visa holder in question may take advantage of the extension provision.  Furthermore, this provision applies regardless of country of origin. 

2.   Beneficiary of an employment-based first, second or third preference petition who is eligible to adjust in the US, but is required to wait for a visa number due to the per-country limits, may obtain three year H-1B status extensions until the adjustment of status is decided.  The provision applies to persons subject to the State Department’s backlogs due to the retrogression in the numbers of available visas, and is especially relevant for foreign nationals born in India, China, Mexico or the Philippines, or 3rd preference for all other countries, all of whom have the longest backlogs for immigrant visa processing.

            H-1B VISA PORTABILITY

PROVISIONS AND REQUIREMENTS

Visa portability provisions in AC21 allow a nonimmigrant foreign national who was previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B petition for the foreign national. 

The portability provisions described in AC21 relieve the foreign national and the employer from the need to await approval notification form the USCIS before commencing new H-1B employment.  In order to be eligible for the visa portability  provisions:

• the foreign national must have been lawfully admitted into the United States;
• an employer must have filed a non-frivolous petition for new employment before the date of expiration of the period of stay authorized; and
• the foreign national must not have accepted unauthorized employment subsequent to his or her admission and before the filing of the new petition.

STATUS OF SPOUSE AND MINOR CHILDREN

A spouse or unmarried child of an H-1B visa holder is entitled to an H-4 visa for the same length of stay as the principal.  The spouse and dependent minor children cannot accept employment but may attend school in the United States.  In addition, domestic workers of an H-1B visa holder can receive a B-1 business visa and obtain work authorization.

Disclaimer:  Nothing on these pages should be taken as legal advise for any individual case or certain situation.  Theinformation is general and should not be relied on upon for any specific situation.  For legal advice, please contact one of our attorneys.All content is copyrighted by IVENER & FULLMER LLP 2008.  All rights reserved.  Services relating to immigration and naturalization provided by Ivener & Fullmer LLP are provided by active members of the State Barof California or by a person under the supervision of active members of the State Bar of California.

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