B
O
C
H1B temporary workers are defined as persons who will perform
services in specialty occupations on a temporary basis. The
Immigration Act of 1990 defines specialty occupation as: "an
occupation which requires theoretical and practical application of
a body of highly specialized knowledge to fully perform the
occupation." To qualify as a "specialty occupation" the position
must meet the following requirements. All five criteria must be met:
To qualify for H1B status, the alien must possess the required
degree or its equivalent or possess a certificate or license that
permits the alien to immediately practice the profession in the
state of intended employment.
The H1B is employer specific; the employee may only work for the
employer who filed the H1B petition and can only perform the job
included in the petition. (Concurrent employment is possible, if
each employer has an approved H1B petition.)
The spouse and unmarried minor children (under age 21) of an
H1B worker are granted H-4 immigration status. Applications for H-
4 classification should be included in the petition for the H1B
worker if the dependents are in the U.S. Filing instructions are on
the back of the H1B Request Form. Dependents in H-4 status are
not eligible for employment.
Temporary Employment:
The H1B is a temporary visa. The foreign national must be coming to
temporarily fill a position that may or may not in itself be temporary. The
employer must attest that the alien's services are needed temporarily. The
letter of appointment and other documents must stipulate the temporary
nature of the appointment.
Obtaining the H1B for Employment:
Begin the H1B process at least six months prior to the requested H1B
employment date. After determining that the person qualifies for H1B status,
the employer must obtain the Labor Conditions Application (LCA). Once the
certified LCA is received, the H1B petition will be filed.
The petition must show that the foreign national is entering the United
States or changing to H1B status for the purpose of temporary employment.
The petition must be accompanied by supporting documents such as
degrees or academic records, licenses to practice a profession, and letters
and other documents attesting to the alien's qualifications.
Photocopies of original documents may be submitted, but original
documents must be available for inspection by the U.S. Citizenship and
Immigration Services (USCIS) upon request.
Any documents in a foreign language must be accompanied by an English
translation. The translator must certify the accuracy of the translation and his
or her competency in the language to be translated and English. This
statement must be notarized.
Credentials from less well-known foreign academic Institutions must be
evaluated for U.S. equivalency by a recognized credentials evaluation
service. Once received by USCIS, the petition can take many months to be
processed, and unexpected delays can occur.
For this reason, please allow six months for USCIS processing before the
official start date of employment. USCIS has instituted a Premium
Processing Service in which they will adjudicate a complete petition within
15 calendar days of receipt; the processing fee is $1,000 (separate check
required). The H1B approval is granted on USCIS Form I-797 and a new
Form I-94: Departure Record is issued.
Legal Penalties:
Careful attention should be given in completing the Request Form. By
signing, the employer is attesting to the accuracy of the information that is on
the form and supporting documents. To knowingly furnish any false
information; conceal or cover up information; make any false, fictitious or
fraudulent statements or representations, or make or use any false writing
or document in the preparation of a U.S. government document , or to aid,
abet, or counsel another to do so is a felony, punishable by a $10,000 fine or
five years in the penitentiary, or both (18 U.S.C. 1001).
Period of Stay:
An H1B may be initially issued for a period of up to three (3) years. The
period of the H1B cannot exceed the validity of the LCA. Extensions may be
obtained, but the total period of authorized stay cannot exceed six (6)
years, unless the individual has progressed through the requisite steps
leading toward permanent residency. If the employer dismisses the alien
prior to the expiration of the authorized stay, the employer is liable for the
reasonable cost of return transportation for the foreign national abroad.
Extension:
Your permission to stay in the United States ends on the expiration date of
your I-797 approval notice or your current I-94 Departure Record card.
Extensions up to a six year maximum period in H1B status are possible
provided your department is willing to sponsor you for an extension.
Extension Procedure:
Discuss extension with your supervisor at least seven months before your
current H1B status expires. Upon decision to extend, the employer will
commence with the steps outlined above in "Obtaining the H1B for
Employment."
How long can an alien be in H-1B 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. Certain
aliens working on Defense Department projects may remain in H-1B status
for 10 years. In addition, certain aliens may obtain an extension of H-1B
status beyond the 6-year maximum period, when:
You may travel while the extension petition is pending until the expiration
date of your current H1B status; if this date has passed and you still have not
received a new I-797 approval notice, you should NOT travel outside the U.S.
You will need the approval notice for the extension to re-enter the U.S.
While you have a pending H1B extension, you may continue working for 240
days beyond the expiration date of your current H1B status.
Change of Status:
Nonimmigrants in most status categories may change their status to H1B.
The most common exception encountered is nonimmigrants in J-1 status
that are subject to the two-year foreign residency requirement.
Transferring Employers:
Due to the new portability provisions of Public Law 106-313 (Title I), Section
105, it is possible to "transfer" H1B status to another employer based on the
timely filing of a petition for new employment by that sponsoring employer.
Upon receipt by that employer of the "receipt notice" from USCIS, which
indicates that USCIS has received the petition and the date on which it was
received, the beneficiary is eligible for employment with the new sponsor.
Essential Documents:
Please make photocopies of your immigration documents and keep them in
a safe place, separately from the originals. Photocopy the following
documents:
1. Passport: Your passport is your own government's permit for you to leave
and re-enter your own country. You should keep your passport valid at all
times (most passports contain an expiration date). Consult your own
consulate or embassy in the U.S. to renew your passport. The consulate
officials will tell you what forms and fees, if any, are required. You can find
the addresses of your country's consulate or embassy here.
2. Visa: The visa stamp placed in your passport by the U.S. consul is
needed to enter the United States but has no bearing on how long you can
remain. It also indicates the classification status you will have upon
admission to the United States (e.g., H1B).
It is necessary to renew your visa if the visa has expired and you are
planning on both traveling outside the North American continent and
returning to the U.S.
You may renew your visa by visiting the U.S. consulate in the country to
which you are traveling or by making application while in the US (Visa
Revalidation). Visa Revalidation is only possible if you already have been
issued an H1B visa stamp. The Visa Revalidation process is outlined here.
3. Form I-94, Arrival/Departure Record: The I-94 shows that you have been
admitted to the U.S. The I-94 is usually stapled onto the U.S. visa page of
your passport. It contains an eleven-digit identifying number (called your
departure number) that the USCIS uses to keep track of your arrival in and
departure from the United States.
The USCIS sometimes refers to the "departure" number as the "admission"
number. There will be a date written in the upper right-hand corner of your I-
94. You must either leave the U.S. by that date or apply to extend your stay.
If you have changed to H1B status within the United States, you will have
received a new I-94 personal record card (attached to the bottom of the form
I-797A) that supersedes your previous I-94 card obtained upon entry in your
prior visa classification.
4. Form I-797 approval notice: The Form I-797 approval notice indicates that
USCIS has approved the H1B petition and has either changed the
beneficiary's status to H1B (in which case a new I-94 card is issued,
attached to the bottom of the Form I-797A) or indicated the consulate to
which they have sent notice of the petition's approval (Form I-797B). The
form will state the validity period of the H1B petition.
Incidental Employment:
The H-1B petition is employer specific and job specific. The H1B beneficiary
can only be employed by and paid by the employer who sponsored the
beneficiary of the H1B petition; in addition, they can only be employed in the
specific job for which the H-1B was applied.
No other employment is allowed, unless another prospective employer files
an H1B petition for concurrent employment.
Taxes:
Employees in H1B status are subject to Social Security tax (OASDI and
MEDICARE). H1B status employment is also subject to federal and state
income tax, unless tax exemption is specifically provided by treaty or
convention.
Employees in H1B status may also qualify for resident status for tax
purposes if they meet the "substantial presence" test. Departing aliens in
H1B status are formally required to obtain a sailing (exit) permit from the
Internal Revenue Service.
Travel:
An H1B employee traveling outside the U.S. should be certain to have all
necessary documents for entry into all countries he or she intends to visit
and for re-entry into the U.S. If an H1B visa needs to be obtained, it will be
necessary for the employee to present a valid passport, the original Form I-
797, a copy of the H1B petition, and a letter confirming current employment
to a U.S. Consulate or Embassy outside the U.S.
services in specialty occupations on a temporary basis. The
Immigration Act of 1990 defines specialty occupation as: "an
occupation which requires theoretical and practical application of
a body of highly specialized knowledge to fully perform the
occupation." To qualify as a "specialty occupation" the position
must meet the following requirements. All five criteria must be met:
- A baccalaureate or higher degree (or its equivalent) is
normally the minimum requirement for entry into the
particular profession.
- The degree requirement is common to the industry.
- The employer must normally require a degree or its
equivalent for the position.
- The job duties must be "so specialized and complex that
knowledge required to perform the duties is usually
associated with the attainment of a baccalaureate or higher
degree."
- The position's level of responsibility and authority must be
"commensurate with professional standing." The H1B status
can be used to bring temporary faculty members,
researchers, consultants, administrators, or individuals
engaged in a variety of professional-level activities to the
United States.
To qualify for H1B status, the alien must possess the required
degree or its equivalent or possess a certificate or license that
permits the alien to immediately practice the profession in the
state of intended employment.
The H1B is employer specific; the employee may only work for the
employer who filed the H1B petition and can only perform the job
included in the petition. (Concurrent employment is possible, if
each employer has an approved H1B petition.)
The spouse and unmarried minor children (under age 21) of an
H1B worker are granted H-4 immigration status. Applications for H-
4 classification should be included in the petition for the H1B
worker if the dependents are in the U.S. Filing instructions are on
the back of the H1B Request Form. Dependents in H-4 status are
not eligible for employment.
Temporary Employment:
The H1B is a temporary visa. The foreign national must be coming to
temporarily fill a position that may or may not in itself be temporary. The
employer must attest that the alien's services are needed temporarily. The
letter of appointment and other documents must stipulate the temporary
nature of the appointment.
Obtaining the H1B for Employment:
Begin the H1B process at least six months prior to the requested H1B
employment date. After determining that the person qualifies for H1B status,
the employer must obtain the Labor Conditions Application (LCA). Once the
certified LCA is received, the H1B petition will be filed.
The petition must show that the foreign national is entering the United
States or changing to H1B status for the purpose of temporary employment.
The petition must be accompanied by supporting documents such as
degrees or academic records, licenses to practice a profession, and letters
and other documents attesting to the alien's qualifications.
Photocopies of original documents may be submitted, but original
documents must be available for inspection by the U.S. Citizenship and
Immigration Services (USCIS) upon request.
Any documents in a foreign language must be accompanied by an English
translation. The translator must certify the accuracy of the translation and his
or her competency in the language to be translated and English. This
statement must be notarized.
Credentials from less well-known foreign academic Institutions must be
evaluated for U.S. equivalency by a recognized credentials evaluation
service. Once received by USCIS, the petition can take many months to be
processed, and unexpected delays can occur.
For this reason, please allow six months for USCIS processing before the
official start date of employment. USCIS has instituted a Premium
Processing Service in which they will adjudicate a complete petition within
15 calendar days of receipt; the processing fee is $1,000 (separate check
required). The H1B approval is granted on USCIS Form I-797 and a new
Form I-94: Departure Record is issued.
Legal Penalties:
Careful attention should be given in completing the Request Form. By
signing, the employer is attesting to the accuracy of the information that is on
the form and supporting documents. To knowingly furnish any false
information; conceal or cover up information; make any false, fictitious or
fraudulent statements or representations, or make or use any false writing
or document in the preparation of a U.S. government document , or to aid,
abet, or counsel another to do so is a felony, punishable by a $10,000 fine or
five years in the penitentiary, or both (18 U.S.C. 1001).
Period of Stay:
An H1B may be initially issued for a period of up to three (3) years. The
period of the H1B cannot exceed the validity of the LCA. Extensions may be
obtained, but the total period of authorized stay cannot exceed six (6)
years, unless the individual has progressed through the requisite steps
leading toward permanent residency. If the employer dismisses the alien
prior to the expiration of the authorized stay, the employer is liable for the
reasonable cost of return transportation for the foreign national abroad.
Extension:
Your permission to stay in the United States ends on the expiration date of
your I-797 approval notice or your current I-94 Departure Record card.
Extensions up to a six year maximum period in H1B status are possible
provided your department is willing to sponsor you for an extension.
Extension Procedure:
Discuss extension with your supervisor at least seven months before your
current H1B status expires. Upon decision to extend, the employer will
commence with the steps outlined above in "Obtaining the H1B for
Employment."
How long can an alien be in H-1B 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. Certain
aliens working on Defense Department projects may remain in H-1B status
for 10 years. In addition, certain aliens may obtain an extension of H-1B
status beyond the 6-year maximum period, when:
- 365 days or more have passed since the filing of any application for
labor certification, Form ETA 750, that is required or used by the alien
to obtain status as an EB immigrant, or
- 365 days or more have passed since the filing of an EB immigrant
petition.
You may travel while the extension petition is pending until the expiration
date of your current H1B status; if this date has passed and you still have not
received a new I-797 approval notice, you should NOT travel outside the U.S.
You will need the approval notice for the extension to re-enter the U.S.
While you have a pending H1B extension, you may continue working for 240
days beyond the expiration date of your current H1B status.
Change of Status:
Nonimmigrants in most status categories may change their status to H1B.
The most common exception encountered is nonimmigrants in J-1 status
that are subject to the two-year foreign residency requirement.
Transferring Employers:
Due to the new portability provisions of Public Law 106-313 (Title I), Section
105, it is possible to "transfer" H1B status to another employer based on the
timely filing of a petition for new employment by that sponsoring employer.
Upon receipt by that employer of the "receipt notice" from USCIS, which
indicates that USCIS has received the petition and the date on which it was
received, the beneficiary is eligible for employment with the new sponsor.
Essential Documents:
Please make photocopies of your immigration documents and keep them in
a safe place, separately from the originals. Photocopy the following
documents:
- Passport pages that have your picture and personal information, as
well as official information;
- Passport page with the appropriate visa stamp on it;
- Both sides of your Form I-94;
- Both sides of your I-797 approval notice;
1. Passport: Your passport is your own government's permit for you to leave
and re-enter your own country. You should keep your passport valid at all
times (most passports contain an expiration date). Consult your own
consulate or embassy in the U.S. to renew your passport. The consulate
officials will tell you what forms and fees, if any, are required. You can find
the addresses of your country's consulate or embassy here.
2. Visa: The visa stamp placed in your passport by the U.S. consul is
needed to enter the United States but has no bearing on how long you can
remain. It also indicates the classification status you will have upon
admission to the United States (e.g., H1B).
It is necessary to renew your visa if the visa has expired and you are
planning on both traveling outside the North American continent and
returning to the U.S.
You may renew your visa by visiting the U.S. consulate in the country to
which you are traveling or by making application while in the US (Visa
Revalidation). Visa Revalidation is only possible if you already have been
issued an H1B visa stamp. The Visa Revalidation process is outlined here.
3. Form I-94, Arrival/Departure Record: The I-94 shows that you have been
admitted to the U.S. The I-94 is usually stapled onto the U.S. visa page of
your passport. It contains an eleven-digit identifying number (called your
departure number) that the USCIS uses to keep track of your arrival in and
departure from the United States.
The USCIS sometimes refers to the "departure" number as the "admission"
number. There will be a date written in the upper right-hand corner of your I-
94. You must either leave the U.S. by that date or apply to extend your stay.
If you have changed to H1B status within the United States, you will have
received a new I-94 personal record card (attached to the bottom of the form
I-797A) that supersedes your previous I-94 card obtained upon entry in your
prior visa classification.
4. Form I-797 approval notice: The Form I-797 approval notice indicates that
USCIS has approved the H1B petition and has either changed the
beneficiary's status to H1B (in which case a new I-94 card is issued,
attached to the bottom of the Form I-797A) or indicated the consulate to
which they have sent notice of the petition's approval (Form I-797B). The
form will state the validity period of the H1B petition.
Incidental Employment:
The H-1B petition is employer specific and job specific. The H1B beneficiary
can only be employed by and paid by the employer who sponsored the
beneficiary of the H1B petition; in addition, they can only be employed in the
specific job for which the H-1B was applied.
No other employment is allowed, unless another prospective employer files
an H1B petition for concurrent employment.
Taxes:
Employees in H1B status are subject to Social Security tax (OASDI and
MEDICARE). H1B status employment is also subject to federal and state
income tax, unless tax exemption is specifically provided by treaty or
convention.
Employees in H1B status may also qualify for resident status for tax
purposes if they meet the "substantial presence" test. Departing aliens in
H1B status are formally required to obtain a sailing (exit) permit from the
Internal Revenue Service.
Travel:
An H1B employee traveling outside the U.S. should be certain to have all
necessary documents for entry into all countries he or she intends to visit
and for re-entry into the U.S. If an H1B visa needs to be obtained, it will be
necessary for the employee to present a valid passport, the original Form I-
797, a copy of the H1B petition, and a letter confirming current employment
to a U.S. Consulate or Embassy outside the U.S.
BOGLE
OKOYE
CHANG
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BOGLE & CHANG, LLC
Copyright © 2010 Bogle & Chang, LLC. All Rights Reserved.
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H1B: Temporary "Specialty" Worker
What if the alien’s circumstances change?
As long as the foreign national 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 H-1B employers
without affecting status, but the new H-1B employer must file a
new Form 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 is a status violation.
Must an H-1B foreign national be working at all times?
As long as the employer/employee relationship exists, an H-1B
foreign national is still in status. A H-1B foreign national may
work in full or part-time employment and remain in status.
A H-1B foreign national may also be on vacation,
sick/maternity/paternity leave, on strike, or otherwise inactive
without affecting his or her status.
Can an H-1B foreign national intend to immigrate
permanently to the U.S.?
Yes. A H-1B foreign national 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 the immigration law since passage of the
Immigration Act of 1990.
During the time that the application for LPR status is pending,
a foreign national may travel on his or her H-1B visa rather than
obtaining advance parole or requesting other advance
permission from Immigration to return to the U.S.
As long as the foreign national 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 H-1B employers
without affecting status, but the new H-1B employer must file a
new Form 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 is a status violation.
Must an H-1B foreign national be working at all times?
As long as the employer/employee relationship exists, an H-1B
foreign national is still in status. A H-1B foreign national may
work in full or part-time employment and remain in status.
A H-1B foreign national may also be on vacation,
sick/maternity/paternity leave, on strike, or otherwise inactive
without affecting his or her status.
Can an H-1B foreign national intend to immigrate
permanently to the U.S.?
Yes. A H-1B foreign national 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 the immigration law since passage of the
Immigration Act of 1990.
During the time that the application for LPR status is pending,
a foreign national may travel on his or her H-1B visa rather than
obtaining advance parole or requesting other advance
permission from Immigration to return to the U.S.
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