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MEMORANDUM REGARDING H-1B

There are numerous different nonimmigrant visa classifications under which foreign professionals may be lawfully employed in the United States. However, by far the most popular, practical and convenient classification is under Section 101(a)(15)(h)(i)(B) of the Immigration and Nationality Act, universally referred to as H-1B. This memo discusses briefly the key points an employer should consider in deciding whether to explore the possibility of seeking H-1B classification for a foreign professional employee.

BASIC REQUIREMENTS FOR H-1B CLASSIFICATION

H-1B is a classification for “specialty occupation workers”. A specialty occupation worker is a person who will be employed to work in a job which requires at least a Bachelor’s degree in a specialized field of study. For example, two classic examples of specialty occupations are Computer Programmer Analyst, since this job requires a degree in Computer Science (or its equivalent), and Engineering, since engineering jobs require degrees in engineering (or its equivalent). An example of a job which would not qualify as a specialty occupation would be office manger, since even if a company required a Bachelor’s degree for such position, it would be relatively unusual for it to require a Bachelor’s degree in a certain specialized field of study.

In addition, if the employee’s degree is from a foreign university it may, or may not be equivalent of a U.S. Bachelor’s. Further, an individual with a degree in Mechanical Engineering may or may not qualify to provide services in the Electrical Engineering or Computer field based upon his work experience. Therefore, whenever you have an individual whom you wish to place in a job which may qualify as a “specialty occupation” who does not hold at least a bachelor’s degree from a U.S. university in that specialty, it is advisable for you to fax his/her resume to an immigration attorney for a feasibility assessment.

THE “NO BENCHING” RULE

If one is bringing an employee from abroad to work for one’s company, one must pay him the wage stated in the H-1B petition within 30 days of entry to the U.S. and must continue to pay him/her that wage (and provide him/her the number of indicated hours) until he/she is terminated. The only exception is for non-productive time for a reason unrelated to the employer’s actions – e.g. if the employee is sick or voluntarily requests a leave of absence. Since what is or is not a proper basis for placing an H-1B worker in a non-productive status is a difficult question of statutory interpretation, legal counsel should always be consulted before taking action.

If the employee is already in the U.S., one must begin paying him/her within 60 days of approval of his/her H-1B status to work for your company.

Of course the employer is still free to terminate the employee at any time just like any other employee if he/she is “at will” employee. However, if there is a written employment contract, then the contract could determine under what circumstances the employee may be terminated.

THE H-1B PETITION

The employer may file the H-1B with USCIS. Such petitions can take anywhere from two to seven months to be processed, and sometimes even longer if the USCIS requests additional information. However, processing times can be reduced to as little as 15 days or less if an additional $1,410 filing fee is paid for “premium processing”.¹

However, if the employer is filing an initial H-1B for an applicant, then the employer must file this petition starting April 1st. In addition, there is a numerical limit of 65,000 (commonly known as “regular cap”) and numerical limit of 20,000 (commonly known as “advanced degree exemption”) for those aliens who have graduated with a Master’s or above from a U.S. university. Every year, the number of H-1B initial applicants fluctuates, but recently, the number of applicants have exceeded 85,000, and so all initial H-1B petitions were subject to the lottery. Only those petitions which were selected in the lottery were chosen for H-1B processing

The petition is submitted with a copy of the approved LCA together with evidence that the job being offered is a “specialty occupation” and that the beneficiary is qualified to work in it, along with evidence that he/she is maintaining his current status in the U.S. In addition, we must submit evidence of any written employment agreement between the employer and alien, and if there is none, then summary of the oral agreement. For an F-1 student, maintaining current status usually means either attending school on a full time basis, or being in the period of post degree practical training authorized by the USCIS. There is a 60 day grace period in which students remain in status (but without employment authorization) after their education and/or post-completion practical training expires.² For an H-1B worker, maintaining status means working for his H-1B petitioner.

CONSEQUENCES OF FAILURE TO MAINTAIN STATUS

If the beneficiary is NOT maintaining a lawful status at the time the H-1B petition is filed, then he/she will NOT be authorized to start working for the petitioner immediately upon approval. Rather, in most cases he/she will have to leave the U.S. and apply for an H-1B visa a US


¹ If the premium processing fee is paid then the USCIS must either make a decision on the case or request additional information within 15 days of the date of filing. However, if the employer is filing for initial H-1B starting on April 1st of a year, then the petition is usually subject to the lottery (if the number of applicants exceed the H-1B numerical limit) and it could take many months to get a response from USCIS regarding whether the petition has been selected in the lottery and whether the petition is approved. If USCIS requests additional information, it is required to make a final decision on the case within 15 days of receiving the response. If USCIS exceeds these timelines, it is required to refund the $1,410 additional filing fee.
² If the student withdraws from school with his school’s permission there is a 15 day grace period. Otherwise he becomes out of status the day he stops being a full time student.

consulate, and will only be authorized to be employed by the petitioner upon his return to the US with the visa. In two circumstances however all the out-of-status worker must do is cross the border into Canada or Mexico and immediately reenter the US to obtain work permission. These circumstances are when the employee:

    • Already has an unexpired H-1B visa, even if it has the name of another employer written on it; or
    • Is a Canadian citizen;

EMPLOYMENT OF H-1B WORKERS WHILE A PETITION IS PENDING

While it remains a general rule that the mere fact that you have filed an H-1B petition upon an individual’s behalf does not authorize him/her to work for you, there is now an important exception. Under the new H-1B “portability” provisions, someone may start working for you immediately upon USCIS’ receipt of your H-1B petition upon your behalf provided that:

    1. He/She holds an unexpired form I-94 (or, if he is a Canadian, entered the U.S. as a visitor less than 6 months ago) and,
    2. He/She has at some time in the past held either an H-1B visa, or H-1B status in the United States.

Note that you must have a CERTIFIED (and applicable) labor condition application to employ someone pursuant to the portability provision, and that the employment authorization ends if the petition is denied.

Further, as before, the filing of a timely application of extension of stay for your own H-1B worker to remain employed by you in substantially the same position described in your prior H-1B petition upon his/her behalf prior to the expiration of his/her I-94 automatically extends the H-1B worker’s employment authorization by 240 days beyond the expiration of his I-94. Again, this extension expires if the application for extension of stay is denied.

LENGTH OF TIME ONE MAY BE IN H-1B STATUS

An H-1B petition may be approved for a maximum of 3 years, and can be extended another 3 years up to a maximum of 6. However, the employee may be in the U.S. for no more than a total of 6 years in H-1B status, regardless of how many H-1B employers he has worked for. Once that six year period has expired he/she must leave the U.S. for at least one year before he/she can be granted H-1B classification again.

However, this rule does not apply if the PERM/labor certification and I-140 petitions have been approved or if an application for labor certification (or immigrant visa petition) was filed upon the H-1B employee over 1 year ago, and has not been denied (and an immigrant visa petition or application for adjustment of status filed upon the basis of one of these applications hasn’t been denied).

TERMINATION OF H-1B WORKERS

Even though the H-1B petition must specify a fixed term for which you intend to employ an H-1B worker, the employer can reserve the right to terminate the foreign worker’s employment at any time, at will and without cause. If you do terminate an H-1B worker’s employment, the regulations state that you must notify the USCIS office which approved your petition of the termination. However, note that doing so will cause the USCIS to revoke the approval of your petition upon the employee’s behalf. This mean if you later wish to hire him back, you must repeat the complete H-1B petitioning process all over again.

As noted above the termination of the H-1B worker’s employment terminates his/her legal status in the U.S. as well. Therefore, you may wish to suggest to your employee that he/she consult with immigration counsel as soon as possible after notifying his/her of the planned termination. Often counsel have been successful in changing the immigration status of terminated H-1B workers to visitor so that they could continue to remain in the U.S. in lawful status for up to a year after their H-1B employment is terminated.

Note that you must promise to pay the transportation costs back to his home country of any H-1B worker whom you terminate before the expiration of the validity of your H-1B petition. However, since most H-1B workers will seek alternative employment in the U.S. after being laid off, few employers are actually approached for this sum.

DISCLAIMER

The above discussion is not intended as a definitive discussion of how to obtain employment authorization for foreign professionals, but rather as a brief introduction. Those seeking more detailed information or who are facing actual problems in implementing the provisions of the Act are encouraged to contact legal counsel for personalized information.

Anyone with questions pertaining to this memorandum, or any issue regarding US immigration law should not hesitate to contact my office at the above number.

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3415 S. Sepulveda Blvd, Suite 570, Los Angeles, CA 90034 | Phone: (213) 375-4084 | Toll Free: (800) 792-9889 Office Location

3415 S. Sepulveda Blvd, Suite 570, Los Angeles, CA 90034 | Phone: (213) 375-4084 | Toll Free: (800) 792-9889 Office Location

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