The H-1B is a Specialty Occupation work authorization visa with a cumulative maximum duration of 6 years.The initial period of stay for those in H-1B status is three (3) years, with extensions available for up to three (3) years thereafter. Previous time spent in H (except H-4) or L (except L2) classifications count toward the available six-year H-1B period of stay. Show
If, however, the beneficiary has been physically absent from the U.S. for more than one (1) year, he/she/they are eligible for another six (6) years in H (or L) status. In other words, the six-year clock "restarts" if the beneficiary has remained outside of the U.S. for twelve (12) consecutive months. The I-94 "admit until" date controls the beneficiary's period of stay in H-1B status.Unlike F or J visas, which are granted admission D/S (Duration of Status), the H-1B has a set termination date for your period of stay in the U.S. The U.S. Immigration Service operates under the "Last Action Rule." Your "admit until" date will be controlled by the last-issued document:
The 240 Day RuleIf you are currently in H-1B status and need to change employers from a previous institution to SCSU, then your H-1B petition must be filed before you can begin work at SCSU as an H-1B due to the "240 Day Rule." As long as your employer has filed an H-1B Extension petition before your currently H-1B expires, the beneficiary of the H-1B remains in a period of authorized stay and may continue to work for SCSU for 240 days after the current expiration date while USCIS adjudicates the extension. H-4 dependents will likewise continue in valid status for 240 days if their I-539 extension is filed before the expiration of the current H-4 with restrictions on the dependent's ability to travel and re-enter the U.S. Study while on H-1B statusYou may enroll in classes during your time in H-1B status but it cannot interfere with your ability to perform the work-related duties listed on the H-1B petition. H-4 dependent study may also take place during this time. Your spouse and children in H-4 dependent status may take classes as either full- or part-time students. Spouses may also be permitted to work under special circumstances. H-4 Dependent Work AuthorizationEffective May 26th, 2015, certain H-4 dependent spouses of H-1B non-immigrants can file Form I-765: Application for Employment Authorization, if the H-1B non-immigrant:
Basic Rules for Extensions and Amendments to the H-1B
For more information on SCSU’s H-1B processes, please contact the OIE at . Please note that the information on this webpage should not be construed as legal opinion or legal advice.
Who needs to obtain H1-B visa? Employers seeking to hire nonimmigrant foreign nationals as workers in specialty occupations or as fashion models of distinguished merit and ability need to apply the H-1B nonimmigrant visa on behalf of the foreign employees. Can a foreign worker obtain H-1B visa for himself/herself? No. H-1B status requires a sponsoring U.S. employer; an individual cannot gain status on his/her own. What is “specialty occupation“? “Specialty occupation“ is defined to mean “an occupation that requires
What are the factors reviewed by the USCIS in determination of “specialty occupation“? The most important factors reviewed by the USCIS are:
Does the size of the employing company influence approval rate of an application? The USCIS has increasingly relied on the size factor in determining whether a position qualifies as a specialty occupation. In view of this trend, small employers will need to present a particularly strong case that it needs a specialty occupation worker, such as by demonstrating a prestigious client list or concrete plans to attract such clients. Who is a qualified foreign worker for the purpose of H-1B? Under the USCIS rules, a foreign worker is considered qualified to perform services in a specialty occupation if he/she:
Does the foreign worker need to obtain a license if a position to be filled requires a license? Yes, the immigration rules require that a foreign worker be immediately able to fulfill the duties of his/her specialty occupation with respect to any applicable state licensing requirement for professionals in the field. Normally a permanent license must be obtained in order for a person employed in a field in which a license is required to qualify for H-1B status. However, in some instances, a state will permit a professional to fully practice his/her profession with a temporary license and such licenses will be accepted by USCIS. What is Labor Condition Application (LCA)? Before a petition can be filed with USCIS to qualify the foreign worker as a person engaged in a specialty occupation for H-1B purposes, the employer must first file a labor condition application with the DOL, in which it must make several required attestations. After the Department of Labor certifies the LCA, the employer will apply to the U.S. Citizenship and Immigration Services (USCIS) for approval to employ a foreign worker under H-1B status so that alien workers may be hired. What must an employer do before filing an LCA (Labor Condition Application)? There are two things an employer must do before filing an LCA?
How long is a prevailing wage determination valid? A prevailing wage determination will be valid for filing a period of ninety days to one year after issuance by the National Prevailing Wage and Helpdesk Center (NPWHC). The employer must file its LCA within the validity period specified on the form. The employer has the option of requesting a redetermination by submitting supplemental documentation, for example, an alternative wage source. The employer may also challenge the prevailing wage determination by requesting review by the NPWHC director. Can a prevailing wage determination be reviewed? Yes, an employer may request review of a PWD (or a redetermination) within ten days of the date of issuance. An employer may also request BALCA review of the NPWHC's decision within thirty calendar days of the date of the decision. May an employer ignore the prevailing wage determination and uses one of other methods of determining wages? Yes. Under current DOL policy the employer can choose to ignore completely the NPWHC determination if it disagrees with that determination and to use one of the other methods for establishing the prevailing wage. What are the restrictions of an “independent authoritative source“? The DOL rules define an independent authoritative source as a “professional, business, trade, educational, or governmental association, organization, or other similar entity“ that has a recognized expertise in an occupational field. Use of independent authoritative sources must also conform to the criteria set forth in the LCA rules and November 2009 prevailing wage guidance. In the event of an investigation, the employer will need to justify its use of the alternative wage source under these standards. Is there poster requirement for LCA (Labor Condition Application)? No, there is no poster requirement. Is there notice requirement for LCA? There is a notice requirement. The employer must inform U.S. workers of the intent to hire a foreign worker by providing notice of the filing of the LCA to the bargaining representative if there is one, or, if there is no bargaining representative, by posting notice of filing in two conspicuous locations at the employer's establishments, or by providing electronic notice. The notice must be provided on or within the 30-day period before the date that the labor condition application is submitted to DOL. How can notice to U.S. workers be given? Notification may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place where any nonimmigrant will be employed. Notice can also be provided by whatever electronic means the employer normally communicates with its employees (e.g., e-mail, bulletin board, and home Web page). What form should an employer file to obtain H-1B visas and what attestations must an employer make in LCA (Labor Condition Application) ? To obtain H-1B status approval, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor. The employer must state that it will:
How should LCA be filed? LCAs must be submitted electronically via the Department's iCERT Portal System. The iCERT Portal System is available at: http://iCERT.doleta.gov. The only two exceptions for electronic filing are physical disability and lack of Internet access. Employers submitting LCAs via the iCERT Portal System can expect a response within seven working days, unless there are obvious inaccuracies How long is H-1B certification be valid? And how long can a foreign worker be in H-1B status? The H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), specifically the Form ETA 9035E, for up to three years. A foreign worker can be in H-1B status for a maximum continuous period of six years unless USCIS grants an extension. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments. What is number of new H-1B visas issued every year? The number of new visas that can be issued each year is subject to a cap. H-1B visas are capped at 65,000 during a fiscal year; an additional 20,000 are available to those individuals who received a master's degree or higher from a U.S. institution of higher education. What is “local prevailing wage“ of the first attestation in LCA (Labor Condition Application)? The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The prevailing wage is defined as the average rate of wages paid to workers similarly employed in the area of intended employment. “Similarly employed“ is defined in this context as workers having substantially comparable jobs in the occupational classification in the area of intended employment. Can my spouse and children join me if I obtain an H1-B visa? Yes. A spouse or unmarried child of a person with H-1B visa status may obtain an H-4 visa. Individuals with H-4 visa status cannot work in the United States, but may attend school. What is “actual wage“ of the first attestation in LCA? The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The actual wage rate is the wage being paid to other individuals “with similar experience and qualifications for the specific employment in question.“ The DOL (U.S. Department of Labor) rules specify the factors for determining what constitutes “similar experience and qualifications“: experience, qualifications, education, job responsibility and function, specialized knowledge, and “other legitimate business factors“ such as professional distinctions, or receipt of international prizes. What additional rules apply to employers who are dependent upon H-1B workers or are willful violators of the H-1B rules? And who are employers dependent upon H-1B workers? An H-1B dependent employer is, generally, one whose H-1B workers comprise 15 percent or more of the employer's total workforce. Different thresholds apply to smaller employers. H-1B dependent employers who wish to hire only H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment, can be exempted from these additional rules. H-1B dependent employers and willful violator employers must attest to the following three elements addressing non-displacement and recruitment of U.S. workers:
Who else is subject to the special rules? The American Recovery and Reinvestment Act of 2009 requires all recipients of federal funds under Chapter 13 of the Federal Reserve Act or the Troubled Asset Relief Program of the Emergency Economic Stabilization Act of 2008 who want to hire H-1B workers to make the attestations required of an H-1B dependent employer that are listed above. What are employer's responsibilities in H-1B program? Each employer seeking an H-1B, H-1B1, or E-3 nonimmigrant has several responsibilities:
How does an U.S. employer establish eligibility for an H-1B petition? The H-1B regulations currently require that a United States employer establish that it has an employer-employee relation with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:
What factors does USCIS consider when evaluating the employer-employee relationship? USCIS will evaluate whether the petitioner has the “right to control“ the beneficiary's employment, such as when, where and how the beneficiary performs the job. Factors to be considered include the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner's right to control the beneficiary's daily work and work product; and the petitioner's right to hire, pay, and fire the beneficiary. Adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists. What types of evidence can an employer provide to demonstrate that I have a valid employer-employee relationship with the beneficiary? Petitioners will need to provide detailed documentation of the employment relationship. Particularly in cases in which the beneficiary will be assigned to third-party (client) worksites, employers will need to carefully document that it, and not the client, will have the right to supervise, direct, and review the foreign national's work and terminate his or her employment. A detailed itinerary providing information on the multiple work locations will also need to be attached. What if an employer cannot submit the evidence listed in the memorandum? The documents listed in the memorandum are only examples of evidence that establish the petitioner's right to control the beneficiary's employment. Unless a document is required by the regulations, i.e. an itinerary, a petitioner may provide similarly probative documents. A petitioner may submit a combination of any documents that sufficiently establish that the required relationship between the petitioner and the beneficiary exists. A petitioner should explain how the documents the petitioner is providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established. What are employee's rights in H-1B program? H-1B workers are granted the following:
What if I get fired before my H1-B visa is expired? H-1B workers who lose their jobs must either find another employer to petition on their behalf, change to a different immigration status or return to their home country. I am in H-1B visa status, and my employer has begun the permanent residency process. Will I have any problems renewing my H-1B visa or traveling internationally? Generally not. An H-1B alien can be the beneficiary of a labor certification application, an immigrant visa petition, adjustment of status application, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. U.S. immigration law allows for dual intent for those in H-1B status. This means that a person may remain in nonimmigrant H-1B status, even though the person intends to become a permanent resident. While the application for permanent residency is pending, you may continue to travel and work in H-1B visa status. What is the filing fee of H-1B Petition? The filing is $325 for the petition. Additional fees apply for certain employers. How many years can you work on HThe H-1B is a Specialty Occupation work authorization visa with a cumulative maximum duration of 6 years. The initial period of stay for those in H-1B status is three (3) years, with extensions available for up to three (3) years thereafter.
Can you stay on HUnder AC21 § 106, an H-1B nonimmigrant can receive H-1B status beyond the six-year maximum, in one-year increments, if 365 days or more have passed since either an application for Alien Labor Certification (Form ETA 750A-B or ETA 9089) or a petition for immigrant worker (Form I-140) has been filed on the alien's behalf ...
How many times can you apply for HUnder normal circumstances, a foreign national is initially granted a period of stay of 3 years in H-1B status. When you near the end of that period, you will be able to apply for an H-1B visa extension up to a total of 6 years. An employer, however, can only request a total of 3 years on any given H petition.
How long a person can stay is the United States with out an employment on H"Under regulations, H-1B workers have a 60-day grace period of unemployment time during each authorised validity period to stay in the USA legally. They must find new work within 60 days; otherwise, they have to leave the country," the petition said.
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