Stephen M. Perlitsh P.C.
49 West 45th Street, Floor 6
New York, NY 10036
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Email: stephen@perlitsh.com
2. The H-1B Visa / The H-1B Cap
The H-1B visa is one of the non-immigrant visas utilized by prospective employers seeking to employ a non-U.S. Citizen or non-resident of the United States. The position must require at least a four-year college degree. The individual must have obtained the degree in the United States or possess a degree issued outside the United States that has been deemed the educational equivalent of at least a Bachelor's degree issued from a university in the United States. The individual must utilize that educational background in the position offered. For example, an accounting major can be employed as an accountant. Three years of experience may be evaluated to establish that it is equivalent to one year of college education. An independent evaluation is required of foreign degrees, as well as experience.
Effective October 1, 2003, The United States Citizenship and Immigration Service (USCIS) is authorized to approve 65,000 new H-1B petitions per year. This is a large reduction from the previous level of 195,000 per year, Exemptions from the 65,000 cap are available for certain facilities. See page 11 of this pamphlet regarding employers who may be exempt from the H-1B cap.
In August, 2005, the USCIS reached the 65,000 cap on H-1Bs. Unless an employer is exempt from the cap, or the beneficiary was previously counted against the cap, and is extending their H status, then the H petition will not be accepted for filing. Petitions can once again be filed for non-cap exempt employers, in April 2006. However, they will have to list an October 1, 2006 start date. A petition cannot be filed more than six months before the date of employment.
The USCIS is authorized to accept an additional 20,000 H-1b petitions filed on behalf of individuals who have obtained at least a Masters Degree from a US University. As of the November 24, 2005, less then 5,000 of these slots are left.
and who will be allowed to benefit from this exemption.
In order to employ an individual in H-1B status, the prospective employer must agree to pay the employee the higher of the actual wage level paid by the employer to other individuals with similar experience and credentials for that position, or the prevailing wage level in the area of employment. The employer must document the survey that is being utilized to determine the prevailing wage. Alternatively, the employer can request a prevailing wage determination from the Department of Labor. Please see the Labor Condition Application Memo for more details.
Once the prevailing wage is determined and the employer agrees to pay that salary, various forms are prepared for submission to the Department of Labor and USCIS. Attorney’s fees and expenses related to the preparation of the H-1B petition and Labor Condition Application cannot be paid by the prospective employee. Please see the memo on page 16 of the memo for more details.
The employer generally does not have to establish the unavailability of qualified U.S. workers for the position in order to process an H-1B petition. Exceptions to this rule are contained in the Labor Condition Application memo.
The form and letter that are submitted to USCIS as part of the H-1b process, describe the employer, the position and the employee's qualifications for the position. The form also requires the prospective employer to represent that if the employee is terminated prior to the expiration of the H-1B petition, the employer will pay the employee their return airfare. USCIS does not appear to have any enforcement procedure for this clause. The employee would probably have to sue the employer to enforce this clause.
Some employers have utilized various methods to circumvent this clause. For example, employees have been required to sign an agreement waiving this provision, or the employer retains the employee's first two weeks pay to cover this contingency. There is no guarantee that either of these provisions are binding or legal. An employer can reduce the risk of this clause by limiting the duration of the H-1B status.
The H-1B petition can be approved initially for any duration up to three years. The H-1B status can be extended for up to six years. USCIS may extend the H-1B petition beyond a sixth year, if an individual has filed an application for Alien Employment Certification or an I-140 Petition for an Immigrant Worker, at least one year prior to requesting the seventh year extension. The H-1B status can be extended, until a final decision is rendered on the matter.
Although the regulations surrounding the H-1B petition may be cumbersome, specifically the Labor Condition Application, the H-1B category is the best and most expedient option available to employ a qualified foreign employee. For physicians, it does not have the “two year foreign residency requirement” that encumbers the J-1 status or the necessity of processing a J-1 Waiver Application, based upon a position in a “Health Professional Shortage Area.”
The H-1B beneficiary can only work for the employer and location specified on the H-1B petition. A separate petition is required for each employer, even if two different corporate entities have the same owners.
The employer must withhold taxes from the H-1B beneficiary. The individual must be receiving a W-2 and not a 1099. The beneficiary cannot be employed as an independent contractor.
If an individual is presently employed in H-1B status and a new H-1B petition is submitted by a different employer, or if an extension of status or change of position is filed by the same employer, the individual can commence employment with the new employer, or continue employment with the same employer, upon the filing of the petition at USCIS. However, the H-1B petition must be filed prior to the expiration of the prior petition. The individual must not have violated their immigration status in any manner, including by being employed by any employer who did not petition on behalf of the beneficiary for H-1B status. Employment pursuant to an Employment Authorization Card for a different employer while being in H-1B status may be a problem. Please discuss same with an attorney.
USCIS has been inconsistent in adjudicating H-1B petitions for individuals employed in H-1B status by an employer who is exempt from the cap and is now changing to a non-exempt employer. This past year, some petitions were approved without a problem for the start date requested. Others were approved with an October start date, even though an earlier date was requested, and kept in status. Others were approved with an October start date, even though an earlier date was requested, and not given an extension of status. They had to leave the US and obtain a new H visa and reenter the US prior to commencing employment.
If an individual is changing status to H-1B status, the individual cannot commence employment until the H-1B petition is approved with a change of status, or, if a change of status is not requested, then upon the admission into the United States in H-1B status, after obtaining an H-1B visa at a U.S. Consulate.
If the prospective employee is in a valid non-immigrant status in the United States at the time of filing the H-1B petition and the first day of employment is prior to expiration of the non-immigrant status and the H-1b cap is not an issue then, the H-1B petition can be approved with employment authorization.
If the prospective employee remained in the United States past the authorized time of stay, or if the effective date of employment is past the authorized time of stay, USCIS will approve the petition, but deny a request to change status to H-1B status and not grant employment authorization with the approved petition. The individual will have to apply for an H-1B visa outside the US. Upon entry into the United States with an H-1B visa, the individual can commence employment. There have been instances where USCIS has not followed this policy and has granted a change of status to individuals whose status expired between the date of filing and the start date listed on the H-1B petitions. This is contrary to law and logic. In a case reviewed by USCIS on April 28, 2003, USCIS stated that a change of status could not be granted due to the gap between the end of the physician’s status and the start date.
There have been numerous instances where USCIS has not followed this policy and has granted a change of status to individuals whose status expired between the date of filing and the start date listed on the H-1B petitions. This is contrary to law and logic. If your present status expires prior to the start date on the H-1B Petition and USCIS grants a change of status, this does not mean that USCIS will not at a later date determine that you have violated your status or that the approval was erroneous. For example, if you are in F1 status and your last date of being a student in good standing and 60 day grace period expires more than 60 days before the start date on the H-1B petition, you are urged to obtain a new I-20.
If you are in B-2 status or any other non-immigrant status which expires prior to the start date of the H-1B petition, if USCIS grants the change of status, they can later determine that the approval was erroneous and deem you out of status. It can also be raised when you file for Resident Alien Status and may affect getting the case approved, if USCIS raises the issue as to your status between the expiration of your previous status and the start date on the H petition. If you opt to proceed with a change of status, under these circumstances, you do so at your own risk, with full knowledge of the ramifications of an approval. This office makes no representations that the change of status will be granted, or the long term validity of the approval, should the change of status be granted.
If the position requires a license, USCIS may not approve the H-1B petition, unless the license has been obtained. USCIS has denied petitions when the license was issued subsequent to filing the H-1B petition. If the license is pending at the time of filing, then it is recommended that a letter be obtained from the licensing authority confirming same. This may allow for approval of the petition. USCIS may limit the date of approval on the H-1B petition to the expiration date on the license.
Approval of an H-1B petition with employment authorization and either a change of status or extension of status does not guarantee readmittance to the United States. All foreign nationals, except Canadian citizens, who leave the United States, even for a short trip to Canada or Mexico, must have a valid passport and H-1b visa in order to be readmitted to the United States. Canadian citizens who are presently exempt from obtaining visas prior to admission to the United States. However, Landed Immigrants of Canada, even those previously exempt from obtaining a visa, must have a visa prior to returning to the United States.
An individual who has been granted a change of status, may travel to Canada Mexico or the islands contiguous to the United States for less then 30 days and be readmitted, unless they had applied for a visa at a Consulate during that trip and were refused, or are from one of the countries where the applicability of this provision has been barred, including citizens of Iran, Iraq and Libya.
A visa can be obtained at the U.S. Consulate in the individual’s home country. Certain nationals may obtain a visa at consulates other than the one in their home country. Applicants should discuss this option with their attorney, prior to departing the United States. However, if the consulate does not issue the visa, you will not be readmitted to the United States.
Present regulations instruct U.S. consulates not to issue H-1B visas to individuals unless they are within ten (10) days of the start date listed on the H-1B petition. This policy is not followed by all consulates. If you are from one of the countries where extra security clearance is required, you should apply for the visa as soon as possible. As discussed further in this memo, the security clearance procedure can take anything from a few weeks to several months.
Effective April 30, 1997, if individuals remained in the United States for more than 180 days but less than one year after their authorized stay expired, they will not be issued a visa and will be barred from entering the United States for a minimum of three years. Unlawful presence for one year or more leads to a 10-year bar.
Last update: November 24, 2005