For a number of years, foreign-born professionals receiving job offers from employers in the United States have often entered this country with H-1B visas. Following are some of the primary aspects of the H-1B nonimmigrant classification. A very high percentage of H-1B visas are currently issued to professionals working in the field of computer science. Many other professionals, such as engineers, accountants, architects, attorneys, and business executives, also qualify for this visa classification.

DUAL INTENT

Although H-1B is officially a nonimmigrant classification, it permits a foreign national to have manifested immigrant intent and to have taken steps to acquire permanent residency in the United States prior to a petition being filed for an H-1B visa, without being automatically subject to a denial of the H-1B petition filed on their behalf. Hence, it is known as a "dual intent" classification. Unlike applicants for F-1 student visas, for example, applicants for H-1B visas at a U.S. embassy or consulate are generally not required to demonstrate to a skeptical U.S consular officer at their visa interview that they intend to return to their native country after their authorized period of stay has ended.

PERIOD OF VALIDITY

H-1B status can be valid for an initial period of three years, renewable for another three years, for a maximum total of six years of employment authorization. At the end of six years, the foreign professional must leave the United States and live outside the country for one year before again being eligible a new H-1B visa, with an new six-year maximum period of authorized employment. However, quite often, before the maximum limit on the H-1B period of admission is reached, the foreign professional who wants to remain in the United States will have obtained permanent residency through one of a number of avenues.

Furthermore, if either an employment-based immigrant petition on behalf of a foreign national, or the foreign national's Application for Adjustment of Status, or an Application for Labor Certification on behalf of the alien have been on file with the appropriate government agency for 365 days or more, then the foreign national is eligible for extensions of H-1B status in one-year increments until a final decision is made on his or her permanent residence.

SPECIALIZED KNOWLEDGE REQUIREMENT

The position for which the foreign national is sponsored must require the application of a specialized body of knowledge at a level of complexity requiring a U.S. Bachelors degree or its equivalent. For foreign nationals who have not completed a four-year course of study at an accredited institution, either in the U.S. or in their native country, it is still possible to show that they have achieved the equivalent of a Bachelors degree through a combination of formal study and professional experience. The Bachelors degree (or its equivalent in prior experience) must generally be in a field related to the position offered.

PREVAILING WAGE REQUIREMENT

In addition to the educational requirements for an H-1B visa, the U.S. employer must pay the foreign national the prevailing wage for the position. The prevailing wage is the average salary paid to others who have the same type of position in that geographic area, and the same level of experience. The salary should also be at the same level as that paid to other employees at the company with similar experience, performing the same kind of work.

As part of the prevailing wage requirement, the U.S. employer is required to file a form known as a Labor Condition Application ("LCA") with the U.S. Department of Labor. This form lists the position, its occupational classification, the location where the foreign national will be employed, the salary being offered to the foreign national, the prevailing wage for this type of professional position in the geographic area, and the source of the information regarding the prevailing wage. The official source for prevailing wages, Is the local, state-level office of the Department of Labor, otherwise known as the State Workforce Agency, or "SWA."

In addition, employers and their attorneys are permitted to use alternative sources of salary information, such as salary surveys, which can be obtained from a number of organizations, or a survey conducted by the employer, as long as the statistical methods are ultimately deemed by the U.S. Department of Labor to be sound and to conform to standard practice.

POSTING REQUIREMENT

In addition to filing the LCA with the Department of Labor, the employer is required to post a copy of the LCA and a set of attestations in at least two conspicuous places for at least ten consecutive business days in the location where the foreign national will be employed. This posting is meant to serve as notice of the job opening to any potentially available U.S. worker.

FILING THE PETITION

Once the LCA is filed with the Department of Labor, it is processed, certified, and returned to the employer or the attorney. The petition for an H-1B visa is then filed with the appropriate regional office of the U.S. Citizenship and Immigration Services ("USCIS"). The petition includes the certified LCA and other required forms and documents providing information on the employer, the nature of the position, and the foreign national's qualifications, and also must have the required filing fee.

APPROVAL OF THE PETITION

If the foreign national is legally in the United States at the time the H-1B petition is filed and all the legal requirements mentioned above have been met, he or she will usually be found eligible for a change of status from his or her present nonimmigrant classification to H-1B status. Upon approving the petition, the USCIS will issue an Approval Notice. The change of status is effective upon approval, which means that the foreign national can begin employment as soon as the petition is approved, without having to go to a U.S consulate to apply for a new visa.

However, some nonimmigrant classifications do not permit change to another nonimmigrant classification (such as H-1B) within U.S. borders. For example, a foreign national who enters the United States under the Visa Waiver Program must leave within 90 days and is not permitted either to extend his or her stay or to change to another nonimmigrant classification while remaining within U.S. borders. Other limitations on the ability to change one's nonimmigrant status from one classification to another within U.S. borders are listed at Section 248 of the Immigration and Nationality Act.

If a foreign national has been found by the USCIS to have not maintained the terms of the non-immigrant status held prior to applying for H-1B status, then the USCIS may approve the petition with respect to the foreign national being qualified for the H-1B classification, but deny the aspect of the petition that requests a change of the alien's status within U.S. borders.

As a result, the foreign national will first be required to leave the United States, go to a U.S. embassy or consulate in either Canada, Mexico, or his or her country of nationality or residence, fill out a Form DS-156, and present the required documents, including his or her passport, the original USCIS Approval Notice, and a full copy of the H-1B petition, in order to apply for an H-1B visa permitting re-entry into the United States.

Also, if the foreign national is living outside the United States when the petition is filed and approved, he or she will need to go the U.S. embassy or consulate in his or her country of nationality or residence with the USCIS Approval Notice for the H-1B visa and supporting documents and follow that consular post's procedure to apply for an H-1B visa.


CANADIANS ARE VISA-EXEMPT

Under NAFTA, Canadian citizens are visa-exempt with respect to the H-1B classification (among other non-immigrant classifications). Therefore, they may proceed directly to a U.S. Port-of-Entry with their passport, the USCIS Approval Notice, and a full copy of the H-1B petition, and apply directly to a USCIS officer for admission into the United States in H-1B status. They do not need to go to a U.S. embassy or consulate beforehand to apply for an H-1B visa.

STATUS VS. VISA

The term "status" should not be confused with a "visa." The State Department issues visas, which permit the foreign national to enter (and, if it is a multiple entry visa, to re-enter) the United States from outside its borders. When a foreign national arrives at a U.S. Port-of-Entry, the H-1B visa in his or her passport is presented to and inspected by a USCIS officer, who verifies the foreign national's eligibility for admission and issues him or her an Arrival/Departure Record, commonly referred to as an I-94 Card, with an expiration date. The foreign national is then admitted into the United States in H-1B status. It is the alien's un-expired I-94 Card that confirms he or she has H-1B status and, hence, permission to live and work in the United States under the terms of the approved H-1B petition.

H-1B CLASSIFICATION IS EMPLOYER-SPECIFIC

H-1B visas and H-1B status are employer-specific. After commencing work for the first employer, if the foreign national receives and accepts another job offer, an entirely separate H-1B petition will have to be prepared and filed by the new, subsequent employer. The foreign national must remain with the first employer until the subsequent employer's petition has been filed with the USCIS, after which he or she may start working for the new employer.

However, if the USCIS ultimately denies the subsequent employer's petition, the foreign national's employment authorization with that employer and legal status in the H-1B classification will end as of the day the USCIS denies the petition.

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DISCLAIMER

The foregoing article is provided for general informational purposes only. It is not intended to replace detailed and specific legal advice in individual cases and should not be acted upon as such. The author does not assume responsibility for any loss incurred by a person who pursues, or refrains from pursuing, a course of action in reliance upon the information provided in this article.

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