H-1B Frequently Asked Questions (FAQ) September 16, 2006Posted by dsheen88 in Employment-Based Immigration, H-1B visa, Info for Doctors and Health Professionals, MyComments, Tips.
The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
Yes. The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status in each Fiscal Year. (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003.)
H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129 petition plus accompanying fee of $185. Additional fee of $1,500 for emplyers with 25 + employees or $750.00fee for employers with less than 25 employees; amd $500.00 of H-1B Fruad Prevention fee. Certain sponsors are exempted for some fee. Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant 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.
H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.
As long as the alien 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.
As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
Yes. An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.
Yes. An H-1B alien 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, an alien 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.
Can an H-1B visa holder bring their spouse and minor children to U.S.?
Yes. H-1B holders can bring thier spouse and minor children to live with them in U.S. under H dependents visa (H-4). However, H-4 visa holders can not work in U.S. Spouse here on an H-4 visa must have his or her own H-1B visa to work legally in U.S.