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H-1B Frequently Asked Questions (FAQ) September 16, 2006

Posted by dsheen88 in Employment-Based Immigration, H-1B visa, Info for Doctors and Health Professionals, MyComments, Tips.
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What is an H-1B?

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.

What is a specialty occupation?

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.

Is there an annual limit on the number of H-1B aliens?

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.)

How does one apply?

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.

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:

  1. 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
  2. 365 days or more have passed since the filing of an EB immigrant petition.

Who can an H-1B alien work for?

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.

What if the alien’s circumstances change?

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.

Must an H-1B alien be working at all times?

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.

Can an H-1B alien travel outside the U.S.?

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.

Can an H-1B alien intend to immigrate permanently to the U.S.?

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. 

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Comments»

1. Rosalie R. Licauco - October 20, 2006

My daughter is a US citizen and currently in the medical field. She recently got married and had a baby. For a nurse working late at night and practically 12 hrs a day, she finds it difficult to manage her time being a professional, a wife and a mother. I would like to hire a house helper from the Philippines, who has been her nanny since childhood. Considering that trust and confidence is the primary consideration in entrusting a child, I would like to know how we could possibly hire her long time nanny and bring her to the US only until her baby will be entering pre school.

2. dsheen88 - December 18, 2006

Hi Rosalie,
H-1B visa are designed for professional workers only (i.e. minimum of Bachelor’s degree or its equivalent). Therefore, it is no good for a “nanny” position due to the low skill level. However, you could consider sponsoring a H-2B visa for this person from the philippines to work as a domestic worker in U.S. up to 12 months at a time (maximum of 2 renewls or extensions). This is a complicated process and may take up to 6 months to apply. Please feel free to contact my office directly if need further assistance with this. Our office number is 510.438.6868.

David Sheen, Esq.

3. lodine - February 3, 2007

lodine

news

4. Cherry - June 27, 2008

Hi dsheen88,
I have a friend here in the US who want to hire a nanny from the Philippines. You said that, H-2B visa is the right visa to apply for it. Is it too complicated to do that? what are the procedures and step by step papers to fill? pls let me know in my email. Thank you!

5. Amsh - October 14, 2008

Hi,
I do hold approved H-1B petition which I applied in April, 2007. But I haven’t taken any appointment yet with visa consulate. It’s been almost a year since i got the approved petition documents from my sponsor. Does it still holds valid? Can I still apply for visa? Is there any time limit within which I must get visa after getting approved petition? Kindly let me know in email.

Thanks,
Amsh

6. H1Bfraud - December 9, 2008

Violations or fraudulent cases of the H1B Visa, or any other immigration or customs related issue can be reported to Immigration and Customs Enforcement (ICE) tipline at 1-866-DHS-2ICE. H1B Visas are not created for an employer to hire cheap labor, but for an employer to hire personnel that cannot be hired from the current U.S. Workforce. There is guidelines as to how this is determined. As a general rule, employers that bring employees through the H1B Visa program should not be underpaying them, as this is a clear sign that the problem in getting people to fill the position does not lies on the position itself, but on the pay.

7. Maria - December 28, 2008

Hi! My son has a pending I-130 petition for alien relative. I know of somebody who is currently recruiting temporary workers from other countries and my son is interested. Does he have a chance of getting an H2B visa while his I-130 petition is pending?

8. Vanessa - February 7, 2009

hello, my 2 sisters and mom have green cards that have no expiration dates..we all came here all together back in ’88 with my other siblings (which we are all US citizens now)..they went back to the philippines due to personal (family) matters and haven’t re-entered the u.s. for more than 7+ years and now they would like to come and live here..are their green cards still valid? please advise on what to do so we can start processing necessary paperwork…

thank you so much for your time & assistance!

9. rosita p. taguian - March 6, 2009

Hi dsheen88, I want to hire a nanny from the Philippines. Actually she is my auntie and she took care of my 1 year old son in the Philippines. That’s way I want to hire her as a nanny. because im trust and confident if she is the one who care of my son. And one thing important is I can bring again my son here in U.S.You said that, H-2B visa is the right visa to apply for it. Is it too complicated to do that? what are the procedures and step by step papers to fill? pls let me know in my email. here is my emal address. rptaguian25@hotmail.com.Thank you! God Bless you.

10. rosita p. taguian - March 7, 2009

Hi dsheen88, I want to hire a nanny from the Philippines. Actually she is my auntie and she took care of my 1 year old son in the Philippines. That’s way I want to hire her as a nanny. because im trust and confident if she is the one who care of my son. And one thing important is I can bring again my son here in U.S.You said that, H-2B visa is the right visa to apply for it. Is it too complicated to do that? what are the procedures and step by step papers to fill? pls let me know in my email. here is my emal address. rptaguian25@hotmail.com.Thank you! God Bless you.


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