The H-1B is a temporary non-immigrant status that permits a foreign national to work in the U.S. in a specialty occupation that requires the services of a professional, which is essentially defined as a position minimally requiring a Bachelor’s degree.
The H-1B is subject to an annual limit. The quota is 65,000 for foreign nationals with Bachelor’s degrees, and an additional 20,000 for those with Master’s or higher degrees from U.S. universities. By treaty 6,800 numbers are held for Singapore and Chile, and the unused numbers should be added back the following year. Quota exemptions are only available to universities or certain research organizations working on projects for a university or the government. An H-1B may port (switch) from a cap-subject sponsor to a cap-exempt exempt at any time. To port to a cap-subject sponsor, the foreign national must have a quota number or a new one must be available. Time spent in H-1B status with a cap-exempt company still counts towards the 6 year limit.
The fiscal year begins on the 1st of October. This is the first day foreign national gaining their H-1B may work for the sponsor company for that fiscal year. Applications may be received up to 6 months in advance of the effective date. Therefore in times of oversubscription, an application should be submitted during the first 5 business days in April, when applications are received for a lottery.
6 Year Limit
Once approved, H-1B status is granted generally for three years and foreign nationals are eligible for an additional extension of up to 3 years for a total of 6 years. H-1B status may be extended for 1 year periods beyond the 6 year limit if a Labor Certification has been filed and has been pending for 1 year. Furthermore, 3 year extensions are available if the foreign national is a beneficiary of an approved I-140, but visa numbers are not available due to per country limitations. If the foreign national leaves the U.S. for one year, he or she is eligible for another 6 years of H-1B status. However, the foreign national will be subject to getting a new quota number.
Once in H-1B status, the number will remain available to the foreign national until the 6 year limit is reached. As the numbers are allocated to foreign nationals, a company which has obtained an H-1B for one foreign national cannot transfer the quota to another employee.
Employer and Position Specific
The H-1B approval is limited to the job that the sponsor company describes in the application. Thus, the foreign national will not be able to work second or side jobs without obtaining such additional approval. This also means a new approval is required when changing positions. There is leeway given to progressive positions, so the foreign national may be given certain additional duties in the same discipline or promoted to a position that is substantially similar without requiring an immediate amendment to be filed. These minor amendments can be made when a routine extension is necessary. We do suggest that these changes in duties be reviewed with an attorney, because certain new job responsibilities mandate immediate amendments.
Portability provisions allow H-1B beneficiaries to port (switch) to a new employer upon the filing of a new H-1B petition as long as he or she is lawfully in H-1B status, the foreign national must not have been employed without authorization. Furthermore, the new petition must be “non-frivolous” and filed before the expiration of the period of authorized stay. The foreign national is eligible for portability, which allows for a transfer to another company upon proper filing. The total H-1B time remains 6 years of aggregate work with all employers.
Principal H-1B beneficiaries are able to sponsor their spouse and children for H-4 status as long as the H-1B is maintained. H-4’s are eligible to study in the US, without obtaining F-1 status. However, H-4’s are not eligible to apply for work authorization through the H category. H-4’s must maintain their own individual status and documents. Their status is not automatic based on the H-1B.
The issue of fees is significant as the U.S. Worker Training fee is $1,500 for companies with 26 or more employees, and $750 for those with 25 and fewer. This fee must be paid by a company on the first two applications for each foreign national, as well as a $500 Fraud Fee for the initial application. In August 2010, the U.S. government instituted a new fee of $2,000 for initial and change of employer H-1B petitions if the sponsor company has 50 or more employees in the U.S. and more than 50% of those employees are in H-1B, L-1A, or L-1B status. These fees are in addition to the standard application fees for the H-1B beneficiary and family, not to mention legal fees. By planning ahead, the need for Premium Processing should be avoided, which adds at least the government filing fee of $1,225, and typically requires associated expedite legal fees.
Labor Condition Application – LCA
The sponsor company is required to pay the foreign national the prevailing wage and give notice to its employees that a foreign national is being hired. To comply with the regulations it must post this information within the company. This document is often confused with the Labor Certification (which is to prove the unavailability of qualified and able U.S. workers requiring a recruitment process), which employers are generally reluctant to deal with. However, the two are different in purpose and scope, so if this is an issue, a prospective employer should be educated.
Return Transportation Expenses
Employers who prematurely dismiss an H-1B alien must pay the “reasonable costs” of the aliens return transportation abroad. The employer must pay the way back to his/her place of residence outside the U.S., not just to Canada or Mexico. If the alien terminates his/her employment, he/she is not considered to be dismissed and therefore the employer is not responsible for return transportation costs.
If a foreign national travels outside the U.S., he or she will need to obtain an H-1B visa to return to the country. Furthermore, the foreign national should check the current timing at the home or permitted consulate, as seasonal changes may affect the timing of scheduling and processing.
One of the great advantages of the H-1B is the benefit of Dual Intent. This principle allows the foreign national to concurrently maintain non-immigrant status while at the same time applying for permanent immigration to the U.S. This is generally not allowed, as immigrant intent precludes a foreign national’s qualification for many non-immigrant classifications.