The United States Citizenship and Immigration Services (USCIS) authorizes several categories of nonimmigrant visas for a person who wishes to work temporarily in the United States.
The H-1B classification applies to persons in what are known as “specialty occupations” that require the theoretical and practical application of a body of highly specialized knowledge.
Do I qualify?
You are required, under the regulations, to have the following qualifications in order to be considered for an H-1B visa:
· A minimum of a Bachelor’s or higher degree
· A satisfactory and provable level of work experience as required by the employer
However, the degree requirement should prove that:
· Parallel positions in the industry across a range of similar organizations require a degree
· The professional complexity and uniqueness of the position requires the job can only be performed by a person with a degree
· The position requires the degree for the position, or
· The job is so specialized and complex which, then, requires knowledge or skills often acquired through a Bachelor’s or higher level of education.
In order to be considered for H_1B visa as a nonimmigrant temporary employee, the applicant’s prospective employer or agent must file Form I-129 (Petition for Nonimmigrant Worker) with the United States Citizenship and Immigration Services (USCIS). Once approved, USCIS sends the employer or agent a notice of approval, Form I-797. You should note that the approval of a petition will not guarantee you visa issuance if you are found to be ineligible under the provisions of the Immigration and Nationality Act.
How to apply?
The process of application usually follows two steps.
1. You apply for a particular job at a company operating in the United States or a U.S.-based employer willing to hire you has otherwise contacted you.
2. Once your job application is accepted, your employer files a petition on your behalf with the USCIS after meeting the conditions set out by the United States Department of Labor (DOL). See details under “Obligations of Employers.”
Can I bring my family?
- You are allowed to bring your spouse and unmarried children under the age of 21 with you or at a later date. The visa category for your dependants and family is H-4. The H-4 visa for your family members will be valid for the same duration as your H-1 visa. They cannot, however, take up any form of employment while in the H-4 category. This limitation can only be removed with a special permission granted by the USCIS. Dependants holding an H-4 visa are authorized to attend school while remaining in the H-4 category but are not entitled for any financial aid or the one-year Optional Practical Training (OPT) after completion of the program.
- H-4 visa holders can qualify for alternative nonimmigrant visa categories like the F-1 student visa if they are to obtain admission at an academic institution. If a spouse whose employer has also obtained approval of an H-1B petition to employ him or her can still be considered for other visa categories. If the principal H-1B holder changes jobs and as long as there is no break in the validity of H-1B visa, there is no need for separate petition to be filed. H-4 visa holder need not take any action as long he/she accompanies the H-1B visa holder.
What are the key documents required for H-1B visa?
· Valid Passport
· Resume or CV
· An official proof of certification showing that the alien has a U.S. advanced degree or a foreign equivalent degree, or
· An official academic record showing that the alien has a U.S. Bachelor’s degree or a foreign equivalent degree,
· School Transcripts (English translation required if medium of instruction is not English)
· Letters from current or former employers showing that the alien has experience in her/his area of specialization after earning a Bachelor’s degree
· I-94 (Arrival and Departure Form Attached to Passport Usually issued at Port of Entry), if you had entered the United States before
What is a Port of Entry?
A Port of Entry is the first airport through which you entered the United States. Soon after your plane landed, Customs and Border Protection (CBP) officials of the Department of Homeland Security check your documents and interview you to determine whether or not you should be admitted. Applicants should be aware that a visa does not guarantee entry into the United States. Customs and Border Protection officials have authority to deny admission. Also, CBP officers decide the period for which the bearer of a temporary work visa is authorized to remain in the United States.
At the port of entry, a CBP official validates Form I-94 (Record of Arrival-Departure which notes the length of stay permitted). Temporary workers who wish to stay beyond the time indicated on their Form I-94 must contact 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 USCIS.
What are the documents required for H-4 (Dependants and Family Visa)?
The required documents for H-4 visa abroad or H-4 status for a spouse as well as children, generally, are the H-1B approval notice of the Beneficiary, the marriage certificate, and birth certificates for children. It may be helpful, however, to compile all of the following:
1. I-797 form (H-1B approval notice)
2. Letter of employment from the company you work for with salary stub
3. A letter addressed to the Consulate in favor of your spouse’s visa
4. Copy of relevant pages of passport of H1B spouse (Notarized)
5. Copy of the marriage certificate (Notarized and translated into English)
6. Bank statement to prove you are capable of supporting your spouse
7. Recent paychecks/stubs
8. Original passport of H-4 visa applicant
9. Wedding photographs and a wedding invitation
10. I-94 (Arrival and Departure Form Attached to Passport), if available
11. Visa fee
What are the filing fees for H-1B?
*See NEW FEE SCHEDULE that has come into effect since July 30, 2007 for updated fee.
If you and your employer chose premium processing, there is $1,000 additional premium processing fee. The Premium Processing Program for H-1B petitions was launched on July 30, 2001, which entails the USCIS will approve the petition, deny the petition, or make a request for additional evidence within 15 calendar days for an additional fee of $1,000. The USCIS will refund the $1000 fee if it does not make a decision on the case within the required 15-calendar day period.
The additional fees of $750 or $1,500 can be exempted only when:
- · The employer is an institution of higher education
· The employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education. Nonprofit organizations or entities in this category include such establishments as hospitals and medical research institutions
· The employer is a nonprofit research organization or governmental research organization primarily engaged in basic and/or applied research
· The employer is a primary or secondary education institute
· The employer is a nonprofit organization engaged in an established curriculum-related clinical training or has registered students
· The petition is a second or subsequent request for an extension of stay filed by the same employer
Visa Application Fees at the Embassy (for Indian Nationals)
As soon as employers send documents of approval, it is time for the applicant to start preparing. Applicants still need to make:
· A standard nonrefundable payment of $ 100 (or Rs. 4, 400)
· VSF (Electronic Visa Application Support provider) fees for booking an appointment, processing, and courier service. The payment is to be made at an authorized branch of the HDFC Bank and not at any HDFC branch (consult the website of the US Embassy in New Delhi for a full list of authorized HDFC branches).
Can I work for more than one employer?
- In some cases, it is possible more than one employer may employ an H-1B nonimmigrant category worker at the same time. For example, a Systems Administrator employed by one company can also do consulting work for another company. If the H1B worker has H-1B status from an employer and will continue to work for that employer and takes up the new employment for a second employer, the second employer must file for and obtain the authorization of USCIS. If the worker wants to change employers and continue to maintain his or her current H-1B status, the situation is treated as an extension of stay.
In cases where two employers file H-1B petitions for the same worker and the
H-1B holder chooses to work for one employer initially, but then changes his/her mind and commences work for the second employer, the second employer need not file a new or amended petition. Employers are, however, expected to notify the USCIS whenever an employee opts not join them after obtaining the H-1 visa they sponsored.
What are the obligations of employers?
- The employer must submit to the Department of Labor (DOL) a Labor Condition Application (LCA) by filing Form ETA 9035 and fulfill the required conditions in relation to hiring non-American professionals residing outside of the United States.
The employer must agree to pay the higher of the “prevailing wage” determined by the DOL or the “actual wage” fixed by the organization appropriate for the position.
The employer must ensure proper working conditions to all employees without any discrimination. The DOL must be informed in the event of a strike or a lockout.
The employer must also provide notice of the LCA to its employees AND also maintain Public Access file showing that the organization is complying with the conditions of LCA.
In addition, an H1B dependent employer must attest that the organization would not displace a US worker in a similar position within 90 days before or after filing an H1B petition.
Employers have the obligation of paying an employee while on bench, temporary shutdown in their operations like a vacation, and fulfill other standard practices.
What is the duration of the H-1B visa and how to renew my H-1B visa?
- Initially an H-1B is issued for the period not exceeding 3 years. The H-1B visa can be extended for another three years if you are in the same job or in another job with approved petition. A new visa stamp will not be required if the H-1B visa holder never leaves the US during the six-year period but s/he should apply only for renewal. If the H-1B worker has to travel abroad after expiration of his her original H-1B visa, a new visa must be obtained to enable him/her to re-enter the US.
- It is mandatory that all initial H-1B visas must be issued at a consular office abroad. The same rule applies for petitions for change of status too.
- H-1 B workers may have their H-1B visa renewed at the Visa Office of the State Department, Washington D.C.
- The following documents should be submitted along with the application for renewal:
- · Valid passport (at least six months before expiration) for the principal and for each family member. The passport must contain a previous H-1B visa, and that visa must have no less than 60 days of remaining validity, nor have expired more than one year ago. There should be adequate unmarked pages in the passport for each family member.
· The original Form I-94, issued when the applicant last entered the US for the principal and each family member.
· Form I-797 (the original USCIS approval notice) that states the applicant’s current employer and shows the approved extension of temporary US stay.
· Letter of support from the employer indicating the nature of job, duties of the employee, and a list of dependents. This should be addressed to the Visa Office, Department of State.
· Properly executed, typed Form DS-156 and a passport size photo for each visa applicant regardless of age.
· If the spouse and/or dependent children are applying for visas separately from the principal H-1B holder, certified copies of the principal H-1B holder’s visa and valid I-94.
· Filing fee
· Additional $ 65 fee for machine-readable visa.
· Self-addressed and stamped envelopes for returning the passports.
- The maximum duration of stay in H status is six years. In the case of a person who has had more than one type of H status, that is, L1 or H 4 and actually stayed in US with all these different statuses, the total duration of his/her stay is calculated on the basis the 6-year stay allowed.
- Note: In the cases that the H-1B work in US is seasonal or intermittent, or the H-1B holder spends six months or less per year in the US, the six-year limit will not apply in such cases.
How do I qualify for the H-1B seventh-year extension?
- Any H-1B holder who is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition and is waiting for the new quota to apply for an adjustment of status, may file for extensions of H-1B status beyond the six-year period until his/her adjustment of status application has been determined. However, USCIS has the discretion to approve or deny such applications and, therefore, the extension is not guaranteed.
- A beneficiary of EB-1 and NIW may file the extension of his H-1B beyond the six-year limit if the request for extension is filed over 365 days and is either pending or approved. A beneficiary of EB-3 and EB-2 (other than a national interest waiver) may apply to extend his H-1B status beyond the six-year limit if the labor certification was filed more than 365 days.
How do I maintain my H-1B status and visa?
- More than one employer may employ H-1B nonimmigrant category workers concurrently. But if an H1B worker wishes to change employers and continue to maintain his or her current H1B status, the situation is treated as an extension of stay. The second employer should file the petition well in advance if the organization had not done this already. However, in such cases, since the beneficiary had already been documented to have credentials for H-1B visa, less extensive documentation may be necessary to establish his or her continuing eligibility.
- It is possible to obtain a seventh-year extension for some categories of H-1B visa holders. They are as follows:
- · An H-1B holder who is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition and is waiting for the new quota to apply for a modification of status, may apply to the USCIS for extension(s) of H-1B status beyond the six-year period until a decision on his/her adjustment of status application is made. Such extensions are not guaranteed, however, and are issued at the sole discretion of USCIS
· A beneficiary of EB-1 and NIW may file the extension of his/her H-1B visa beyond the six-year limit if the application for immigration has been filed over 365 days and it is pending.
· A beneficiary of EB-3 and EB-2 (other than a national interest waiver) may also apply for extension of his/her H-1B status beyond the six-year limit provided the labor certification was filed more than 365 days before.
Are there any limitations on H-1B (Quota and Other Limitations)?
- · H-1B is granted for a maximum of 6 years. The individual must depart the U.S. for at least one year before qualifying again for another H-1B status.
· There is annual numerical limit for H-1B visas issued. However, applications for extensions of H-1B status, concurrent employment, change of employers, applications for physicians who received J waivers are not subject to the cap.
· Spouse and children are not allowed to work, unless and otherwise authorized by the USCIS.
· No automatic conversion to permanent residence status is permitted. H-1B status is independent of the green card application.
· H1B visa status depends on continued employment. In other words, the employment is at will. Either the employer or the immigrant may terminate the employment at any time for any or without any reasons being assigned. As soon as the employment is terminated or you give up your job, your visa becomes invalid. In such cases, a grace period of only 10 days is given.