H-1b Visa Attorney


H-1b Visa Specialty Occupations (a dual intent visa)


H1B temporary workers are defined as persons who will perform services in specialty occupations on a temporary basis. The Immigration Act defines specialty occupation as: "an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation." To qualify as a "specialty occupation" the position must meet the following requirements. All five criteria must be met:

  • A baccalaureate or higher degree (or its equivalent) is normally the minimum requirement for entry into the particular profession.
  • The degree requirement is common to the industry.
  • The employer must normally require a degree or its equivalent for the position.
  • The job duties must be "so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree."

To qualify for H1B status, the alien must possess the required degree or its equivalent or possess a certificate or license that permits the alien to immediately practice the profession in the area of intended employment. The H1B is employer specific; the employee may only work for the employer who filed the H-1B petition and can only perform the job included in the petition. The spouse and unmarried minor children (under age 21) of an H1B worker are granted H-4 immigration status, with no employment authorization.

Period of Stay:

 

An H1B may be initially issued for a period of up to three (3) years. The period of the H1B cannot exceed the validity of the LCA. Extensions may be obtained, but the total period of authorized stay cannot exceed six (6) years, there are exceptions to this rule, contact us for a consultation to see if any apply to you. If the employer dismisses the alien prior to the expiration of the authorized stay, the employer is liable for the reasonable cost of return transportation for the alien abroad.

Extensions beyond 6 years:

You may obtain an extension of H-1B status beyond the 6-year maximum period, when:

  • 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
  • 365 days or more have passed since the filing of an EB immigrant petition.
  • Approved I-140 petition.

You may travel while the extension petition is pending until the expiration date of your current H1B status; if this date has passed and you still have not received a new I-797 approval notice, you should NOT travel outside the U.S. You will need the approval notice for the extension to re-enter the U.S.

While you have a pending H1B extension, you may continue working for 240 days beyond the expiration date of your current H1B status.

 

Temporary Employment:

The H1B is a temporary visa. The alien must be coming to temporarily fill a position that may or may not in itself be temporary. The employer must attest that the alien's services are needed temporarily. The letter of appointment and other documents must stipulate the temporary nature of the appointment. Nevertheless, permanent residence may be pursued while applying or in H-1b status as it is a "dual-intent" visa.

Obtaining the H1B for Employment:

 

You should begin to prepare the H1B process at least six months prior to the requested H1B employment date. Call our Immigration law office for a consultation to see if you qualify for this visa, every case is different.

Legal Penalties:

 

Careful attention should be given in completing the Request Form. By signing, the employer is attesting to the accuracy of the information that is on the form and supporting documents. To knowingly furnish any false information; conceal or cover up information; make any false, fictitious or fraudulent statements or representations, or make or use any false writing or document in the preparation of a U.S. government document , or to aid, abet, or counsel another to do so is a felony, punishable by a $10,000 fine or five years in the penitentiary, or both (18 U.S.C. 1001).

Extension Procedure:

 

Discuss extension with your supervisor at least seven months before your current H1B status expires. Upon decision to extend, call our office, we will help you through the process.

Transferring Employers:

 

Due to the new portability provisions of Public Law 106-313 (Title I), Section 105, it is possible to "transfer" H1B status to another employer based on the timely filing of a petition for new employment by that sponsoring employer. Upon receipt by that employer of the "receipt notice" from USCIS, which indicates that USCIS has received the petition and the date on which it was received, the beneficiary is eligible for employment with the new sponsor.

 

Essential Documents:

Please make photocopies of your immigration documents and keep them in a safe place, separately from the originals.

  • passport visa page,  and biographical page.
  • passport page with the appropriate visa stamp on it;
  • both sides of your Form I-94 (now online);
  • both sides of any I-797 approval notices;

1. Passport: Your passport is your own government's permit for you to leave and re-enter your own country. You should keep your passport valid at all times (most passports contain an expiration date). Consult your own consulate or embassy in the U.S. to renew your passport. The consulate officials will tell you what forms and fees, if any, are required. You can find the addresses of your country's consulate or embassy here.

 

2. Visa: The visa stamp placed in your passport by the U.S. consul is needed to enter the United States but has no bearing on how long you can remain. It also indicates the classification status you will have upon admission to the United States (e.g., H1B). It is necessary to renew your visa if the visa has expired and you are planning on both traveling outside the North American continent and returning to the U.S. You may renew your visa by visiting the U.S. consul in the country to which you are traveling or by making application while in the US (Visa Revalidation). Visa Revalidation is only possible if you already have been issued an H1B visa stamp. The Visa Revalidation process is outlined here.

 

3. Form I-94, Arrival/Departure Record: The I-94 shows that you have been admitted to the U.S. The I-94 is usually stapled onto the U.S. visa page of your passport. It contains an eleven-digit identifying number (called your departure number) that the USCIS uses to keep track of your arrival in and departure from the United States. The USCIS sometimes refers to the "departure" number as the "admission" number. There will be a date written in the upper right-hand corner of your I-94. You must either leave the U.S. by that date or apply to extend your stay. If you have changed to H1B status within the United States, you will have received a new I-94 personal record card (attached to the bottom of the form I-797A) that supersedes your previous I-94 card obtained upon entry in your prior visa classification.

 

4. Form I-797 approval notice: The Form I-797 approval notice indicates that USCIS has approved the H1B petition and has either changed the beneficiary's status to H1B (in which case a new I-94 card is issued, attached to the bottom of the Form I-797A) or indicated the consulate to which they have sent notice of the petition's approval (Form I-797B). The form will state the validity period of the H1B petition.

Incidental Employment:

 

The H-1B petition is employer specific and job specific. The H1B beneficiary can only be employed by and paid by the employer who sponsored the beneficiary of the H1B petition; in addition, they can only be employed in the specific job for which the H-1B was applied. No other employment is allowed, unless a petition for H-1b is applied for.

Taxes:

Employees in H1B status are subject to Social Security tax (OASDI and MEDICARE). H1B status employment is also subject to federal and state income tax, unless tax exemption is specifically provided by treaty or convention. Employees in H1B status may also qualify for resident status for tax purposes if they meet the "substantial presence" test. Departing aliens in H1B status are formally required to obtain a sailing (exit) permit from the Internal Revenue Service.

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 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.

Travel:

 

An H1B employee traveling outside the U.S. should be certain to have all necessary documents for entry into all countries he or she intends to visit and for re-entry into the U.S. If an H1B visa needs to be obtained, it will be necessary for the employee to present a valid passport, the original Form I-797, a copy of the H1B petition, and a letter confirming current employment to a U.S. Consulate or Embassy outside the U.S.