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The H-1B is a non-immigrant classification used by an alien who will be employed temporarily in a specialty occupation.
A specialty occupation requires theoretical and practical application of a body of specialized knowledge, along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts are specialty occupations.
H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application ("LCA") with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file an I-129 petition with the Bureau of Citizenship and Immigration Services (previously INS). Based on the Bureau petition approval, the alien may apply for the H-1B visa, admission or a change of non-immigrant 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. In certain instances H-1B status may be extended beyond the six years.
H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (such as Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have an I-129 petition filed by each employer.
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 employers without affecting status, but the new employer must file a new I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer's business will not affect the alien's 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's a status violation.
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.
An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.
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 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 request other advance permission from the INS to return to the U.S.
The portability provisions allow a non-immigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the alien. Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed "before, on, or after" the date of enactment (October 18, 2000), so all aliens who meet this definition can begin using the portability provisions.
No. An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas, divided into five preference categories. They may require a labor certification from the U.S. Department of Labor ("DOL"), and the filing of a petition with the Bureau of Citizenship and Immigration Services (previously INS).
Priority workers receive 28.6 percent of the yearly worldwide limit. All priority workers must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with the Bureau of Citizenship and Immigration Services (previously INS). Within this preference, there are three sub-groups:
Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the Bureau of Citizenship and Immigration Services (previously INS).
Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas.
All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. A job offer is required, and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:
Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. There are three subgroups within this category:
Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government (who must use Form DS-1884). There are six subgroups:
Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur, with the Bureau of Citizenship and Immigration Services (previously INS). To qualify, an alien must invest between U.S. $500,000 and $1,000,000 (depending on the employment rate in the geographical area) in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.
A person whose occupation requires a labor certification must have prearranged employment in the United States.
Individual Labor Certification
The applicant must complete DOL Form ETA-750B, Statement of Qualifications of Alien, and send this completed form to the prospective employer who completes Form ETA-750A, Application for Alien Employment Certification, Offer of Employment.
The prospective employer submits both forms to the local office of the State Employment Service in the area in the United States where the work will be performed. The appropriate regional office of the DOL then notifies the employer of its approval or disapproval.
The Department of Labor has made a schedule of occupations for which it delegates authority to the Bureau of Citizenship and Immigration Services (previously INS) to approve labor certifications. Schedule A, Group I, includes physical therapists and nurses. Schedule A, Group II includes aliens of exceptional ability in the sciences and arts (except performing arts). To apply for Schedule A designation, the employer must submit a completed, uncertified Form ETA-750 in duplicate to the Bureau of Citizenship and Immigration Services (previously INS) along with the I-140 petition.
The immigration laws of the United States, in order to protect the health, welfare, and security of the U.S., prohibits the issuance of a visa to certain applicants. Examples of applicants who must be refused visas are those who:
Some former exchange visitors must live abroad for two years. Physicians who intend to practice medicine must pass a qualifying exam before receiving immigrant visas. If the applicant isn't eligible, the consular officer will advise the applicant of any waivers.
All applicants must submit certain personal documents such as passports, birth certificates, police certificates, and other civil documents, as well as evidence that they will not become public charges in the United States. The consular officer will inform visa applicants of the documents needed as their applications are processed.
Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination. The examination will be conducted by a doctor designated by the consular officer. Examination costs must be borne by the applicant, in addition to the visa fees.
Whenever there are more qualified applicants for a category than there are available numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant's priority date. Immigrant visas cannot be issued until an applicant's priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. Check the Visa Bulletin, for the latest priority dates.
Since no advance assurances can be given that a visa will be issued, applicants are advised not to make any final travel arrangements, not to dispose of their property, and not to give up their jobs until visas have been issued to them. An immigrant visa can be valid for six months from issuance date.
With few exceptions, a person born in the United States has a claim to U.S. citizenship. Persons born in countries other than the U.S. may have a claim, under United States law, to U.S. nationality if either parent was:
Any applicant believing he or she may have a claim to United States citizenship should not apply for a visa until his or her citizenship has been determined by the consular office.
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