The first thing many people think about when they hear immigration and visas is the maze of forms, processes, and lingo associated with immigration. Let’s simplify lingo regarding the H-1B visa. First, United States Citizenship and Immigration Services or “USCIS” handles the processing H-1B visas. Second, the H-1B is an employment based or “EB” visa. Next, the employer is known as the “petitioner” or “sponsor.” The foreign worker meant to receive the visa is known as the “primary” or “beneficiary.” If the beneficiary has any family or dependents then they are called “derivatives” and receive the H-4 visa. Lastly, what is the difference of an immigrant visa versus non-immigrant visa? Immigrant is any person with intent to remain in the U.S. long term; this is the path to U.S. citizenship. A non-immigrant is a person who intends to be in the U.S. for a short time.

What is the H-1B visa?

This visa permits U.S. employers to temporarily employ foreign workers in certain specialty occupations. These occupations are defined very strictly in the Immigration and Nationality Act. An occupation qualifies as a specialty occupation under the following criteria:

• A bachelor's degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
• The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

The foreign worker must hold a qualified degree that corresponds to the specialty occupation. A qualified degree is a bachelor’s degree or higher. The H-1B candidate must hold at least a bachelor’s degree or equivalent in a field of study normally associated with the desired occupation. For example, a foreign worker with a marketing degree would not qualify for a computer engineer position. The job must be related to the foreign worker’s field of study. Common examples of H-1B visa holders are engineers, scientists, or mathematicians.

The H-1B visa is generally considered a non-immigrant (or temporary) visa, meaning the visa holder has no intent to remain in the United States permanently. However, the H-1B is also one of the few visa categories recognized as a “dual intent” visa. This signifies a H-1B holder can have the intention to stay in the United States long term. A H-1B holder can eventually apply for Permanent Residency leading to U.S. citizenship.

The H-1B provides an initial period of stay in the United States of up to 3 years. Extensions of the H-1B are possible in up to 3 year increments with a maximum period of stay being generally 6 years. Notably, if a H-1B holder has applied to adjust status to a Legal Permanent Resident or “LPR,” and the petition had been accepted by USCIS or has been in processing for more than 1 year, then the H-1B holder has unlimited renewals to his or her H-1B visa until the LPR process is concluded.

H-1B visa holders can bring immediate family members (spouse and children under 21) to the United States under the H-4 visa category as dependents. As long as the primary retains legal status, his or her derivatives may stay in the U.S. as well. The dependents are allowed to attend school, apply for a driver’s license, and open a bank account in the United States. Further, some spouses of H-1B visas holders may also apply for authorization to work and earn income while in the U.S.

What is the H-1B Process?

The employer has many responsibilities in the H-1B process. First, the employer is responsible for giving the foreign worker a job meeting the requirements of a specialty position. Second, the employer must obtain a Labor Condition Application from the U.S. Department of Labor and make the following four attestations or guarantees:

1. The beneficiary will receive compensation that matches or exceeds the greater of the actual or prevailing wage of other employees in that company who perform similar tasks.
2. Hiring the beneficiary will not harm the current working conditions, and the beneficiary will be related the same as U.S. workers in the company.
3. There are no strikes or lockouts in place regarding the position to be filled by the foreign worker.
4. The employer must give notice of the Labor Condition Application to current employees.

The employer may now submit the actual H-1B application. The employer pays visa fees, attorney fees, and reasonable transportation costs for the foreign worker from his or her home country to the U.S. and back.

A H-1B visa number must be available at the time the H-1B petition is filed unless the certain petition is exempt from the numerical caps. Congress determines how many of each visa type to allow per year.

Time and Cost

As the H-1B visa rose in popularity, so did the processing times. Processing of H-1B visas takes many years as the immigration process has backlogged to the extent it now takes many years for guest-work visa holders from certain countries to obtain green cards. Certain countries such as India and China have higher numbers of skilled workers; therefore, more workers from these countries typically apply for the H-1B visa.

Recognizing this disparity, Congress allots a limited percentage of the total available visas to these countries, resulting in the backlog. Wait times are updated monthly via the Visa Bulletin. Employment-based visa applicants are grouped into “priority” categories based on degree held and skill specialization. Most H-1B candidates will fall into the EB-2 or EB-3 categories. Visa wait times can range from 1 year to 12 years depending on country of residence.

The Common Exceptions

To many employers, the Cap limits and wait times for the H-1B seem prohibitive. Fear not, there are helpful exceptions to employers. First, certain employers are categorically Cap-exempt. Employment “by” or “at” universities, their nonprofit affiliates, nonprofit entities related to or affiliated with institutions of higher education, and governmental research organizations all fit this exemption category.

Second are exemptions for current or previous H-1B visa holders. The U.S. does not count a person against the visa caps twice. If a foreign worker has been previously granted a H-1B visa in the past 6 years and is currently living abroad, then that worker is not subject to the H-1B cap and can reclaim the remaining portion of the six years. If a foreign worker is already in the U.S. on a H-1B visa, then that worker is free to move to a new employer who is willing to take over sponsorship of the visa. Both the foreign worker and new employer must be cautious of any non-compete agreements or other contractual obligations the foreign worker may be subject to. The formal process for this is a “transfer and bridge petition,” also sometimes known as “porting,” and is fairly common. Workers in these scenarios are not subject to cap limits or wait times as they have already passed those hurdles. The only true hurdle to pass is getting the approval of USCIS to port the H-1B from employer A to employer B. Transfer petitions usually take 4-8 weeks for processing and approval.

Lastly, there are certain exceptions for holders of F-1 and J-1 visas.

Separation of Employment

If a H-1B holder quits or is dismissed from the sponsoring employer, both the employer and employee have obligations. The employer must immediately notify USCIS of any “material change” in employment including separation of employment, change of job, change in compensation etc. The foreign worker must either apply for and be granted a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or leave the United States. Effective January 17, 2017, USCIS modified the rules to allow a grace period of up to 60 days to the foreign worker.

If an employer terminates a H-1B holder before the workers permitted time in the U.S. is ended, then the employer must cover reasonable costs of return transportation for the foreign worker to his or her last country of residence unless the foreign worker states he or she wishes to remain in the U.S. to seek other employment. This cost includes the employee only – not dependents and possessions.

The H-1B, like any other visa process, is complicated. If you are considering employing a foreign worker, contact CCHA for assistance.

For more information about Jon and his practice, please visit his profile.

Special thanks to summer law clerk Daniel Randolph for contributing to the research and writing of this article.