H1B Information, Generally

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The H-1B category is for nonimmigrants who are coming to the United States temporarily to work in a job that customarily requires education and or experience equal to that usually attained by study at an institution of higher learning leading to a bachelor's degree in a specific field of study. This classification requires a labor attestation issued by the Secretary of Labor. This classification also applies to Government-to-Government research and development, or coproduction projects administered by the Department of Defense. A worker who receives this type of work permit may be employed by the sponsoring employer only. If the worker wishes to change employers, the new employer must first file a new petition on behalf of the worker. 

H1 PETITIONS

In order to be considered as a nonimmigrant in this classification, the applicant's prospective employer must file Form I-129, Petition for Nonimmigrant Worker, with the United States Citizenship and Immigration Services Bureau (USCIS). Once approved, the employer is sent a notice of approval, Form I-797. It should be noted that the approval of a petition does not guarantee visa issuance to an applicant found to be ineligible under provisions of the Immigration and Nationality Act. 

VISA INELIGIBILITY/WAIVER

The nonimmigrant visa application FormDS-160 lists classes of persons who are ineligible under U.S. law to receive visas. In some instances an applicant who is ineligible, but who is otherwise properly classifiable as a temporary worker, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved. 

APPLYING FOR THE H1 VISA  

Once the H1 petition has been approved by the USCIS, applicants for this type of temporary work permit should generally apply at the American Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence. 

Required Documentation for an H1B visa application

Each applicant for an H1B temporary worker visa must pay a nonrefundable US$150 application fee and submit:

1) An online application Form DS-160,

2) A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must make an application; and

3) An original notice of approval, Form I-797.

H1B VISAS AT U.S. PORTS OF ENTRY

Applicants should be aware that a visa does not guarantee entry into the United States. The USCIS has authority to deny admission. Also, the period for which the bearer of a temporary work visa is authorized to remain in the United States is determined by the USCIS, not the consular officer. At the port of entry, a Customs and Border Protection official validates Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. Those temporary workers who wish to stay beyond the time indicated on their Form I-94 must contact the USCIS to request Form I-539, Application to Extend Status. The decision to grant or deny a request for extension of stay is made solely by the USCIS.

ADDITIONAL H1 INFORMATION

H1B Portability

While an H1B work permit does not allow the alien employee to work for anyone other than the sponsoring employer, it is possible for the employee to change employers. When someone holds H1 status (or has held it in the past) and a new employer files a new H1B petition on their behalf, then the employee may go to work for the new sponsoring employer as soon as the new petition is on file. There is no need to wait for approval. 

H4 Family Members

The spouse and unmarried, minor children of an applicant may also be classified as nonimmigrants in order to accompany or join the principal applicant. A person who has received a visa as the spouse or child of a temporary worker may not accept employment in the United States. The principal applicant must be able to show that he or she will be able to support his or her family in the United States. 

H1B Time Limits

The H-1B classification permits a maximum stay of six years. Thereafter, the alien must remain abroad for a one full year before being readmitted as a temporary worker under any classification. The USCIS will notify the petitioner on Form I-797 whenever a visa petition, an extension of a visa petition, or an extension of stay is approved. The beneficiary may use Form I-797 to apply for a new or revalidated visa during the validity period of the petition. The approval of a permanent labor certification or the filing of a preference petition for an alien under the H-1 classification shall not be a basis for denying a visa. 

Once a foreign labor certification or employment based immigrant preference petition (I-140) has been pending for at least one year, the six year limit no longer applies and the H worker may continue to receive extensions of H status beyond that point.

The Recent USCIS H1b Memo

On January 8, 2010 the USCIS published a memorandum on the subject of H1b visas, consulting companies, and the existence of an employer-employee relationship. That memo generated a great deal of controversy. Both the reasoning contained within it, as well as the legal authorities cited are both highly suspect. We have developed a detailed analysis of the memo that you can read by clicking here.