OVERVIEW OF REQUIREMENTS AND PROCEDURES FOR H-1B NON-IMMIGRANT VISAS
For a number of years, foreign-born professionals receiving job offers from employers in the United States have often entered this country with H-1B visas. Following are some of the primary aspects of the H-1B nonimmigrant classification. A very high percentage of H-1B visas are currently issued to
DUAL INTENTAlthough H-1B is officially a nonimmigrant classification, it permits a foreign national to have manifested immigrant intent and to have taken steps to acquire permanent residency in the United States prior to a petition being filed for an H-1B visa, without being automatically subject to a denial of the H-1B petition filed on their behalf. Hence, it is known as a "dual intent" classification. Unlike applicants for F-1 student visas, for example, applicants for H-1B visas at a U.S. embassy or consulate are generally not required to demonstrate to a U.S consular officer at their visa interview that they intend to return to their native country after their authorized period of stay has ended.
SPECIALTY OCCUPATION REQUIREMENTThe position for which the foreign national is sponsored must require the application of a specialized body of knowledge at a level of complexity requiring a U.S. Bachelors degree or its equivalent. For foreign nationals who have not completed a four-year course of study at an accredited institution, either in the U.S. or in their native country, it is still possible to show that they have achieved the equivalent of a Bachelors degree through a combination of formal study and progressive professional experience. The Bachelors degree (or its equivalent in prior experience) must be in a field related to the position offered.
PREVAILING WAGE REQUIREMENTIn addition to the educational requirements for an H-1B visa, the U.S. employer must pay the foreign national the prevailing wage for the position. The prevailing wage is the average salary paid to others who have the same type of position in that geographic area, and the same level of experience. The salary should also be at the same level as that paid to other employees at the company with similar experience, performing the same kind of work.
As part of the prevailing wage requirement, the U.S. employer is required to file online Form ETA 9035 known as a Labor Condition Application ("LCA") with the U.S. Department of Labor. This form lists the position, its occupational classification, the location where the foreign national will be employed, the salary being offered to the foreign national, the prevailing wage for this type of professional position in the geographic area, and the source of the information regarding the prevailing wage. The official source for prevailing wages is the U.S. Department of Labor.
In addition, employers and their attorneys are permitted to use alternative sources of salary information, such as salary surveys, which can be obtained from a number of organizations, or a survey conducted by the employer, as long as the statistical methods are ultimately deemed by the U.S. Department of Labor to be sound and to conform to standard practice.
POSTING REQUIREMENTIn addition to filing the LCA with the Department of Labor, the employer is required to post a copy of the LCA and a set of attestations in at least two conspicuous places for at least ten consecutive business days in the location where the foreign national will be employed. This posting is meant to serve as notice of the job opening to any potentially available U.S. worker.
FILING THE PETITIONOnce the LCA is filed with the Department of Labor, it is processed, certified, and returned to the employer or the attorney. The petition for an H-1B visa is then filed with the appropriate regional office of the U.S. Citizenship and Immigration Services ("USCIS"). The petition includes the certified LCA and other required forms and documents providing information on the employer, the nature of the position, and the foreign national's qualifications, and must also have the required filing fee.
APPROVAL OF THE PETITIONIf the foreign national is legally in the United States at the time the H-1B petition is filed and all the legal requirements mentioned above have been met, he or she will usually be found eligible for a change of status from his or her present non-immigrant classification to H-1B status. Upon approving the petition, the USCIS will issue an Approval Notice. The change of status is generally effective upon approval, which means that the foreign national can begin employment as soon as the petition is approved, without having to go to a U.S consulate to apply for a new visa. However, with regard to "cap-counted" H-1B petitions that are typically filed during the first five business days in April, and that are selected for processing as part of the annual H-1B visa lottery, these petitions request a start date of October 1 of the year in which they are filed, and hence any change of status does not go into effect until that date, even if the petition is approved prior to that date.
Furthermore, some non-immigrant classifications do not permit a change to another non-immigrant classification (such as H-1B) within U.S. borders. For example, a foreign national who enters the United States under the Visa Waiver Program must leave within 90 days and is not permitted either to extend his or her stay or to change to another non-immigrant classification while remaining within U.S. borders. Other limitations on the ability to change one's non-immigrant status from one classification to another within U.S. borders are listed at Section 248 of the Immigration and Nationality Act.
If a foreign national has been found by the USCIS to have not maintained the terms of the non-immigrant status held prior to applying for H-1B status, then the USCIS may approve the petition with respect to the foreign national being qualified for the H-1B classification, but deny the aspect of the petition that requests a change of the foreign national's status within U.S. borders.
As a result, the foreign national will first be required to leave the United States, go to a U.S. embassy or consulate in either Canada, Mexico, or his or her country of nationality or residence, fill out a Form DS-156, and present the required documents, including his or her passport, the original USCIS Approval Notice, and a full copy of the H-1B petition, in order to apply for an H-1B visa permitting re-entry into the United States.
Also, if the foreign national is living outside the United States when the petition is filed and approved, he or she will need to go the U.S. embassy or consulate in his or her country of nationality or residence with the USCIS Approval Notice for the H-1B visa and supporting documents and follow that consular post's procedure to apply for an H-1B visa.
CANADIANS ARE VISA-EXEMPTUnder NAFTA (North American Free Trade Agreement), Canadian citizens are visa-exempt with respect to the H-1B classification (among other non-immigrant classifications). Therefore, they may proceed directly to a U.S. Port-of-Entry with their passport, the USCIS Approval Notice, and a full copy of the H-1B petition, and apply directly to a USCIS officer for admission into the United States in H-1B status. They do not need to go to a U.S. embassy or consulate beforehand to apply for an H-1B visa.
STATUS VS. VISAThe term "status" should not be confused with a "visa." The State Department issues visas, which permit the foreign national to enter (and, if it is a multiple entry visa, to re-enter) the United States from outside its borders. When a foreign national arrives at a U.S. Port-of-Entry, the H-1B visa in his or her passport is presented to and inspected by a CBP (Customs and Border Protection) officer, who verifies the foreign national's eligibility for admission and places an admission stamp in his passport, showing the H-1B non-immigrant classification in which he was admitted into the United States and the expiration date of that status. In addition. In addition, the foreign national's date of entry into the United States, class of admission, date until which they are admitted, and their Admission Record Number, commonly referred to as an I-94 Number, are entered into the database of the CBP and are available to the foreign national through the CBP's web site, who may access this information and create a hard copy print-out of this information as further evidence of his or her lawful inspection and admission into the United States and current lawful status in the United States.
H-1B VISAS AND H-1B STATUS ARE EMPLOYER-SPECIFICH-1B visas and H-1B status are employer-specific. After commencing work for the first employer, if the foreign national receives and accepts another job offer, an entirely separate H-1B petition will have to be prepared and filed by the new, subsequent employer. The foreign national must remain with the first employer until the subsequent employer's petition has been filed with the USCIS, after which he or she may start working for the new employer.
However, if the USCIS ultimately denies the subsequent employer's petition, the foreign national's employment authorization with that employer and legal status in the H-1B classification will end as of the day the USCIS denies the petition.