How does the H-1B Visa work? –

How does the H-1B Visa work?

The H-1B Visa is for persons in specialty occupations or certain models, or people providing a service to the Department of Defense. Our site will only focus on the first category.

The H-1B, like all visas, requires that you have a temporary intent to remain in the U.S on a temporary basis.

However, a person in the U.S. can apply for a Green Card. One of the steps involved in obtaining a Green Card (depending on how you file and of course what you qualify for) is called Labor Certification.

If you are here on an H1 (I use H1 and H1B interchangeably) and receive approval for Labor Certification that will not automatically cause an application for an H1 case or extension to be denied.

The reason is that the H-1B Visa allows for a dual intent; you can simultaneously have the intent of remaining permanently, as well as temporarily.  If you are planning on working here you will be happy to know that you do not have to keep a foreign residence to demonstrate the fact that you are here temporarily.

SPECIALTY OCCUPATION

The law defines a specialty occupation as one that requires: 1) Theoretical and practical application of a body of highly specialized knowledge and 2) Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S. Explained, you need a bachelor’s or better.

If you do not have a bachelor’s however, you can qualify through your experience; three years in the field are equivalent to one year of schooling. Ideally however you will have some training.

  1. I have a liberal arts degree and my employer just wants someone with a degree, but the job itself doesn’t need one; do I qualify? No. The job itself must be of the nature that it needs a degree in order to be properly fulfilled. However if you had a business degree for example and then went on to work for a firm that added specialized experience to a general degree, then you would have something more to work with.
  1. I originally came to the U.S on a J1 and have the 212(e) requirement (I have to live outside the U.S. for 2 years). Would an approved H1 allow me to get around that requirement? No. You will still have to satisfy the 2-year bar.
  1. How do I prove I am only coming to the U.S. for a temporary period? Do I have to still keep real estate or a job abroad? No. The fact that you state it is enough. Of course, your contract of employment should also evidence the fact that it is a temporary position you are coming to work at. The types of jobs that qualify include: Accountant, Business Executive, Computer Programmer, Electronics Specialist, Engineer, Fashion Designer, General Manager (if the business is of a complex nature), Graphic Designer, Journalist, Management Consultant, Pharmacist, Scientist and Researcher, and Technical Publications Writer. There are many other jobs that qualify, and a list is never a limiting factor.  Factors to examine include the obvious, is a degree required to satisfactorily execute the functions of the job? What are the requirements, duties and operations of the job on a daily basis? Is theoretical knowledge necessary? What are the requirements for the job according to the industry? Is there a highly specialized body of knowledge the person would be drawing from? What is the pay? Is there a licensing or membership requirement to practice in that area?

LABOR CONDITION APPLICATION

When you have used our job board (someone else’s), located an employer, and received a job offer, you are ready to start the case.

The employer will most likely refer you to their lawyer who will begin the paperwork.

http://www.simonebertollini.com/Immigration-Law/Employment-Based-Immigration/H-1B-Visa.aspx

If they do not have one, you can find one of your own on our home page and they can prepare everything for you via e-mail if you like. The first step is the attestation.

The form used is the ETA 9035 and it is filed with the nearest office of the Employment and Training Administration (hence ETA form) of the DOL (Department of Labor).  The purpose of this form is to ascertain the employer is paying you a fair wage.

In other words, people in the same geographical area working in a position of similar duties will all be paid the same. Sometimes the employer will pay less than the prevailing wage.

This will not be accepted unless the employer can demonstrate why. The prevailing wage must have been obtained within 90 days of filing the LCA. Your employer can use SESA (State Employment Security Agency), Federal prevailing wage laws, or another source such as a private company.

Wages include anything that is taxable to you, however it does not include fringe benefits. In order to file the attestation, your employer will need a tax I.D. number and also attest to the fact that there is no strike or lockout taking place.

The attestation can be filed for full or part-time employees. If your position keeps you mobile (ie consultant) then the attestation must be filed in the office nearest to the first location in which you will be working.

The ETA will be returned to the lawyer and will be valid for a certain timeframe, not to exceed 3 years. LCAs are approved within 7 days of filing.  Your family members (spouse and children) will come to this country as H4s (H2s are workers without degrees, and H3s are trainees).

There is also an interesting provision in the law that states if an employer dismisses you before the end of the term (an H1B is temporary so it must have a fixed term) then he or she must pay for your airfare back.

The government cannot help you enforce it however as it has been deemed a contractual term and so you must go to court.

EXHIBITS

While you are waiting of the employer to make the arrangements, you may want to assemble some of the many exhibits that will help you win the case.

Your degree, the contract of employment (remember, only temporary positions qualify for an H-1B Visa), if your credentials were obtained abroad you must have a company evaluate them (not expensive, the lawyer will recommend his or her favorite), a license if one is required (to perform the job in the state you work in the U.S.), and any letters of recommendation dealing with the specialization of your background; photocopies of all these are accepted.

EMPLOYER

The employer can be a person, partnership, contractor, corporation, LLC, or any organization with a tax ID number.

CHANGES

If there is a new employer, a new petition must be filed. If you are in the same company but work for a different division, a new or amended one must be filed, depending on the circumstance.

Likewise, if you move to a different city with the same employer, the old LCA will no longer be valid as the pay was based on that geographical region. Any material change will need a new or amended petition. As our site does not attempt to encourage you to file your own case, you may wonder why this information is being included.

For lack of a better way of explaining it, this is your life. You should take an active role, as the consequences are severe. For example, if you move to a different position altogether in another city for the same employer you may invalidate your previous H1.

Working there and receiving your checks you assume that all is well.

However, if you are caught working without a visa (make no mistake, that’s what this would be), you will not only have to leave the country, but could impede your chances of reentering any time soon. For this reason, we will try to provide you with all information we feel relevant for management of your legal status.

You will be happy to know that if your company changes name or is under different ownership, you will not have to file anything, as your position is identical in the same location.  Any new or amended petition requires a new LCA.

USCIS APPLICATION

The lawyer will then file the I-129, H Supplement, and Form I-907 for premium processing. The forms are sent in with the required exhibits and filing fees. Now you wait patiently.

FREQUENTLY ASKED QUESTIONS

  1. I worked for a software firm and then decided to move to another one. The new one filed for my H1 and the stay I received on the new one was longer than what I had with my old employer. Which is the correct date? The date on your new employer’s case will control.
  1. I work part time for a company but another one offered me more hours. Can I work for both? Do I need two H1s? You can work for more than two, but each one must file another H1.
  1. I worked for a consulting firm in L.A. under an H1. I decided to work for a dot-com for a while and the dot-com (name withheld) received an H1 for me. Well, I didn’t like the long hours so I went back to the consulting firm where the hours were long but at least I traveled. Does the consulting firm have to apply for a new H1? No. As long as the date on the original H1 has not expired, you can go back to work for them.

EXTENSIONS

Before the date on your H1 expires you will want to apply for an extension. You can receive another H1 for up to 3 years duration, but in no case will you receive more than 6 years in total; you will receive this on a form I797 (a personal favorite..notice of approval). In order to apply for the extension you will need the old I797, a letter from your employer explaining why your extension is required, and the LCA. If the LCA is no longer valid, you will need a new one before you apply.

Beginning January of 1995, LCA could not be valid for more than 3 years, so you can count on having to file a new one. You will also need your I94 card (the white card with your stamp) so always have it handy (you wouldn’t believe how many lawyers’ clients misplace them).

If you are in the United States, you will not have to leave the country; the extension can be completed by mail. There is a separate procedure for this and your lawyer can help you with it.

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