The H-1B visa category applies to foreign nationals who are being sent to the U.S. to temporarily perform work for their employer in a specialty occupation. Specialty occupations are jobs that require:
In general, the maximum amount of stay allowed under the H-1B visa is 6 years. Foreign nationals can extend for up to 3 years at a time. Any time on a prior H or L-visa is counted toward this 6 year maximum. Additionally, this visa category requires a petitioning employer to attest to certain requirements related to:
The employer must generally file a Labor Condition Application for each employee with the Department of Labor. The employer must also maintain a Public Access File, typically at their principal place of business.
The H-1B visa is subject to an annual quota. Currently, the U.S. government has capped these visas at 65,000 per fiscal year. Online registration for H-1B visas will begin for the first time on March 1, 2020. At this time, employers and attorneys can begin to register each H-1B beneficiary online. Employers will only need to file completed petitions for beneficiaries that are selected in the lottery. The earliest employment start date of any cap-subject petition is October 1. No earlier is permitted. It is anticipated that there will be more online registrations each year than there are spots available For this reason, H-1B visas are assigned to foreign nationals by using a lottery-based process of random selection. Out of the 65,000 visa numbers available:
Any unusued H-1B1 visa numbers can be used for H-1B visas in the following fiscal year.
The first 20,000 petitions received where the H-1B applicant has a Master’s Degree or higher are exempt from the 65,000 visa cap. Employers must specifically request this exemption from the cap on the basis of the foreign national’s degree. After the 20,000 cap has been reached for this category, advanced degree holders are counted against the overall cap. Some petitioning employers may be exempt from the H-1B quota, including certain:
Please ask us for more information if you fall into this category and are interested in exploring immigration visa options.
Eligibility requirements vary based on the specific type of H-1B visa. The H-1 category also includes US Department of Defense (DOD) researchers and development project workers (H-1B2) and fashion models of high merit and ability (H-1B3). Foreign nationals may apply for H-1B if they have not been previously accepted or counted as part of the H-1B quota in the last 6 years.
The U.S. position must require the equivalent of a U.S. Bachelor’s degree at minimum, which is normally required for the position or entry into a particular industry. A foreign degree is typically evaluated for its US equivalency, so applicants will need to provide clear copies of degree(s) and mark sheets or academic transcripts. If the foreign national does not have enough years of education or their degree is not directly related to the position, he or she may still be able to meet this equivalency with a combination of education and experience. An experienced immigration attorney can analyze the candidate’s profile and determine whether an exception is likely to be granted. The employee will need to provide a resume and experience letters. Alternatively, the job position and duties must be so complex or specialized that it can be performed only by an individual with a degree. An immigration attorney can help analyze the nature of the job duties before proceeding with the application. In all of the above scenarios, it will be necessary to provide evidence of the employee’s educational and experience background to qualify under this visa category.
There must be specialty occupation work available to the H-1B employee for the employment period that is being requested on the petition. Employers can provide documentation like project agreements and contracts or customer letters, especially if working for a customer or at a customer location. If an employment period of 3 years is being requested for approval, but an employer submits documents that show a shorter project timeline, this may lead to the US government approving the petition for a shortened validity period. Documentation that does not precisely discuss the work to be done may also be questioned by the US government. It is crucial to provide evidence of the project’s existence and duration to demonstrate that the employee is needed for the period of stay indicated in the petition.
If an H-1B worker is being sent to a customer’s job site to work on a project on behalf of the employer, the employer will need to provide additional documentation regarding its right to control and supervise their employee at that work location. Evidence will need to demonstrate that the employer will retain the right to control the worker’s employment during this period. This may include, but not be limited to, supervising, hiring, firing, assigning, and paying the salary. Typically, the US manager, US authorized representative, or Human Resources can furnish necessary documentation.
The beneficiary must retain valid nonimmigrant status at the time of filing the visa petition if they are currently in the United States. They must also have maintained nonimmigrant status at all times while in the United States. Documentation will be required to demonstrate this at the time of filing the petition.
The employer must file a Labor Condition Application to petition for their foreign national employee’s H-1B visa. Not to be confused with Labor Certification for green cards, the LCA is a way for employers to prove fair working conditions. In the LCA, the employer must attest that they will pay their H-1B worker the prevailing wage recommended by the US Department of Labor. This means the wages paid to the H-1B must be equal to the greater of the two:
The prevailing wage requirements are designed to protect both local US workers and foreign workers. Additionally, the LCA must also contain an attestation from the employer about working conditions.
The employer must post an LCA notice at the job site including the job title, and salary. This can be done by either:
The employer will also need to make sure they provide a copy of the LCA to the H-1B employee on or before their start date.
Once the employer receives a certified LCA back from the Department of Labor, they can file Form I-129 to request H-1B status for their employee. The employer must include all supporting documentation and filing fees. If the Form I-129 application is successful, the foreign national will receive Form I-797 which shows they have been approved. They can begin working immediately if they are already present in the United States on valid nonimmigrant status. Otherwise, if the employee is residing outside of the United States, they can apply with with their Form I-797 for an H-1B visa at a US consulate. Once they have an H-1B visa, the worker can enter the United States with a Form I-94 at a port of entry.
After the Form I-129 has been approved, the employer must also maintain a Public Access File (PAF) for the H-1B employee. Each PAF should contain the following documentation:
The employer must keep the PAF at their place of business. They must maintain the file for three years, separate from other personnel records. The employer should also be sure to maintain the PAF for one additional year after the employee has stopped working at the firm.
H-1B holders may continue to stay in the United States for an extended time if they obtain a permanent resident card, or green card, prior to the end of their six year visa term.
Foreign nationals may also request an extension in H-1B status if they are already in the process of filing for a green card under AC21. The foreign national or their employer must have filed Labor Certification (PERM) or Form I-140 more than 365 days prior to the end of the six year term limit.
Please contact the Chugh, LLP team at info@chugh.com for more information on:
What obligations does an employer have when sponsoring an H-1B visa?
Employers must file Form I-129, Petition for a Nonimmigrant Worker, and complete all related requirements to sponsor an H-1B worker. These requirements include providing wage and worksite information, establishing a valid employer-employee relationship, paying the worker a fair minimum wage, and posting the role at the prospective employee’s worksites. Learn more about these H-1B sponsorship requirements.
What are Labor Condition Application (LCA) posting requirements?
To ensure that hiring a foreign worker does not negatively impact local ones, a Labor Condition Application (LCA) attests to the pay rate and other job details that the prospective foreign worker would receive in the position. Review details that most LCAs must contain.
Employers must post LCA Notices of Filing (NOF) for ten consecutive days in two locations at each of the employee’s worksites. NOFs help to notify US workers that a foreign worker is being sought in their occupation. Employers must submit an LCA to the Department of Labor (DOL) for every H-1B applicant. Certified LCAs must be submitted with each H-1B petition.
Any material changes to the H-1B worker’s employment require a new LCA and may require a new H-1B application.
Do employers need to post an LCA Notice of Filing at third-party worksites?
At third-party worksites, employers must post the NOF on or within 30 days before they file the LCA with the DOL. There are a few different options for posting the NOF:
For case-specific advice on LCA postings, contact your trusted Chugh, LLP legal professional.
What are H-1B amendments, and when are they required?
Employers must maintain conditions for their H-1B employees that were outlined in the initial H-1B petition, including work location, pay, and job duties. When there is a “material change” in any of these conditions, an employer must file an amended H-1B petition for the employee with United States Citizenship and Immigration Services (USCIS) before the change occurs. If an amendment is denied, an employee’s H-1B status is not affected.
An H-1B amendment would be required for changes to:
Read on for more details on when to file an H-1B amendment for work location changes and related FAQs.
How long can a H-1B visa holder continue to work after their I-94 expires if their H-1B extension was filed timely?
In general, the employee has 240 days to work while their H-1B extension application is pending if the following conditions are met:
It is necessary to consult with an attorney to determine if the 240-day rule applies to a specific case. There may be unintended consequences if the H-1B beneficiary continues to work without authorization.
Can H-1B employees take parental leave? Do employers have to pay them during this time?
H-1B employees are granted the same working protections as US workers. Employers must comply with the Family Medical Leave Act and local regulations for all employees.
Employers must also maintain the employer-employee relationship during parental leave. While they may not be able to use pay statements to document this relationship, both the employer and employee should document the reasons for the leave and confirm that it was requested by the employee. The letter should explain:
Additional documentation is recommended, including a birth certificate, and a copy of the employee’s valid insurance plan.
These rules do not apply to work sabbaticals, short-term vacations, or paid leave. Contact your trusted attorney for more case-specific advice.
Can H-1B employees take extended leave to take care of a sick relative?
Unpaid leave is acceptable if the employer documents with a letter of intent that the leave is unpaid, the employee will return to work under normal circumstances at a future date, and that the employee requested the unpaid leave. More requirements apply.
What other options are available if my worker is not selected in the H-1B visa lottery?
Individuals who are not selected in the H-1B cap lottery are not eligible to receive an H-1B visa for that fiscal year. However, they may qualify for other nonimmigrant visa categories. These options include:
Learn more about alternative visas to the H-1B visa.
What is a 60-day grace period for H-1B workers, and how can they remain in the US after losing their job?
H-1B employees have a 60-day grace period where they can remain in the US after losing their job by being laid off, terminated, or resigning. During this time, they must either:
For more information, read our article on the options available for terminated H-1B employees to remain in the US.
Can an H-1B visa holder own a business? What type of business entity can they own?
Foreign nationals on H-1B status can own a business under specific circumstances. It is important to note however, that an H-1B visa holder cannot work for any company other than their petitioning employer. This includes working for their own company, even if the work is unpaid. If they do work for another company, an H-1B visa holder could lose their H-1B status.
H-1B visa holders can own limited liability companies (LLCs) only as passive investors who do not work for the LLC in any capacity. It is important that their activity with the LLC does not represent unauthorized employment. Additionally, the H-1B visa holder cannot be sponsored by their own LLC. They must continue to be employed by the business that originally sponsored their H-1B visa.
United States Citizenship and Immigration Services (USCIS) closely scrutinizes H-1B visas that are sponsored by a company that the beneficiary has an ownership interest in. S corporations, C corporations, and partnerships can petition for an owner’s H-1B visa, but this is not advisable. H-1B visa holders should discuss entrepreneurial ambitions with their immigration attorney to avoid violations of their H-1B status. Read more about H-1B visas and entrepreneurship.
Can foreign nationals on an H-4 employment authorization document (EAD) own a company and sponsor their spouse on an H-1B visa?
Because H-4 visas are tied to their spouse’s H-1B visa and not to a specific employer, it may be easier for them to open a business than for their H-1B spouse. H-4 visa holders must ensure that their entrepreneurial activities do not constitute unauthorized employment. However, individuals on H-4 visas should not sponsor their spouse’s H-1B visa at their new company. Learn more about entrepreneurship for H-4 visa holders.
Can I work on an H-4 employment authorization document (EAD) if the EAD is expired, and my H-4 EAD extension is pending?
No, if an H-4 visa holder’s EAD has expired and the renewal is pending, they cannot work. They will need to cease working until after the renewed EAD is approved and the EAD card is issued.
Can I travel while the H-4 extension is pending?
Traveling abroad while an H-4 extension is pending will result in the application being denied.
It is important to consult with an attorney and consistently check the status of the visa application. Individual circumstances and case information may allow for extensions and special travel permission.
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