H-1B Visa
(I-129, Petition for a Nonimmigrant Worker +
Appropriate Supplement)
H1B temporary workers are defined as persons who will perform
services in specialty occupations on a temporary basis. The Immigration
Act of 1990 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:
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 state of intended employment.
The H1B is employer specific; the employee may only work for the
employer who filed the H1B petition and can only perform the job
included in the petition. (Concurrent employment is possible, if each
employer has an approved H1B petition.) The spouse and unmarried
minor children (under age 21) of an H1B worker are granted H-4
immigration status. Applications for H-4 classification should be included
in the petition for the H1B worker if the dependents are in the U.S. Filing
instructions are on the back of the H1B Request Form. Dependents in H-
4 status are not eligible for employment.
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.
Obtaining the H1B for Employment:
Begin the H1B process at least six months prior to the requested H1B
employment date. After determining that the person qualifies for H1B
status, the employer must obtain the Labor Conditions Application (LCA).
Once the certified LCA is received, the H1B petition will be filed. The
petition must show that the foreign national is entering the United States
or changing to H1B status for the purpose of temporary employment. The
petition must be accompanied by supporting documents such as
degrees or academic records, licenses to practice a profession, and
letters and other documents attesting to the alien's qualifications.
Photocopies of original documents may be submitted, but original
documents must be available for inspection by the U.S. Citizenship and
Immigration Services (USCIS) upon request. Any documents in a foreign
language must be accompanied by an English translation. The translator
must certify the accuracy of the translation and his or her competency in
the language to be translated and English. This statement must be
notarized. Credentials from less well-known foreign academic
Institutions must be evaluated for U.S. equivalency by a recognized
credentials evaluation service. Once received by USCIS, the petition can
take many months to be processed, and unexpected delays can occur.
For this reason, please allow six months for USCIS processing before
the official start date of employment. USCIS has instituted a Premium
Processing Service in which they will adjudicate a complete petition
within 15 calendar days of receipt; the processing fee is $1,000
(separate check required). The H1B approval is granted on USCIS Form I-
797 and a new Form I-94: Departure Record is issued.
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).
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, unless the individual has progressed through the requisite steps
leading toward permanent residency. 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.
Extension:
Your permission to stay in the United States ends on the expiration date
of your I-797 approval notice or your current I-94 Departure Record card.
Extensions up to a six year maximum period in H1B status are possible
provided your department is willing to sponsor you for an extension.
Extension Procedure:
Discuss extension with your supervisor at least seven months before
your current H1B status expires. Upon decision to extend, the employer
will commence with the steps outlined above in "Obtaining the H1B for
Employment."
How long can an alien be in H-1B status?
Under current law, an alien can be in H-1B status for a maximum period
of six years at a time. After that time an alien must remain outside the
United States for one year before another H-1B petition can be approved.
Certain aliens working on Defense Department projects may remain in H-
1B status for 10 years. In addition, certain aliens may obtain an extension
of H-1B status beyond the 6-year maximum period, when:
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.
Change of Status:
Nonimmigrants in most status categories may change their status to
H1B. The most common exception encountered is nonimmigrants in J-1
status that are subject to the two-year foreign residency requirement.
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. Photocopy the
following documents:
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.
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.
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 another prospective employer files an
H1B petition for concurrent employment.
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.
(I-129, Petition for a Nonimmigrant Worker +
Appropriate Supplement)
H1B temporary workers are defined as persons who will perform
services in specialty occupations on a temporary basis. The Immigration
Act of 1990 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."
- The position's level of responsibility and authority must be
"commensurate with professional standing." The H1B status can
be used to bring temporary faculty members, researchers,
consultants, administrators, or individuals engaged in a variety of
professional-level activities to the United States.
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 state of intended employment.
The H1B is employer specific; the employee may only work for the
employer who filed the H1B petition and can only perform the job
included in the petition. (Concurrent employment is possible, if each
employer has an approved H1B petition.) The spouse and unmarried
minor children (under age 21) of an H1B worker are granted H-4
immigration status. Applications for H-4 classification should be included
in the petition for the H1B worker if the dependents are in the U.S. Filing
instructions are on the back of the H1B Request Form. Dependents in H-
4 status are not eligible for employment.
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.
Obtaining the H1B for Employment:
Begin the H1B process at least six months prior to the requested H1B
employment date. After determining that the person qualifies for H1B
status, the employer must obtain the Labor Conditions Application (LCA).
Once the certified LCA is received, the H1B petition will be filed. The
petition must show that the foreign national is entering the United States
or changing to H1B status for the purpose of temporary employment. The
petition must be accompanied by supporting documents such as
degrees or academic records, licenses to practice a profession, and
letters and other documents attesting to the alien's qualifications.
Photocopies of original documents may be submitted, but original
documents must be available for inspection by the U.S. Citizenship and
Immigration Services (USCIS) upon request. Any documents in a foreign
language must be accompanied by an English translation. The translator
must certify the accuracy of the translation and his or her competency in
the language to be translated and English. This statement must be
notarized. Credentials from less well-known foreign academic
Institutions must be evaluated for U.S. equivalency by a recognized
credentials evaluation service. Once received by USCIS, the petition can
take many months to be processed, and unexpected delays can occur.
For this reason, please allow six months for USCIS processing before
the official start date of employment. USCIS has instituted a Premium
Processing Service in which they will adjudicate a complete petition
within 15 calendar days of receipt; the processing fee is $1,000
(separate check required). The H1B approval is granted on USCIS Form I-
797 and a new Form I-94: Departure Record is issued.
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).
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, unless the individual has progressed through the requisite steps
leading toward permanent residency. 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.
Extension:
Your permission to stay in the United States ends on the expiration date
of your I-797 approval notice or your current I-94 Departure Record card.
Extensions up to a six year maximum period in H1B status are possible
provided your department is willing to sponsor you for an extension.
Extension Procedure:
Discuss extension with your supervisor at least seven months before
your current H1B status expires. Upon decision to extend, the employer
will commence with the steps outlined above in "Obtaining the H1B for
Employment."
How long can an alien be in H-1B status?
Under current law, an alien can be in H-1B status for a maximum period
of six years at a time. After that time an alien must remain outside the
United States for one year before another H-1B petition can be approved.
Certain aliens working on Defense Department projects may remain in H-
1B status for 10 years. In addition, certain aliens 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.
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.
Change of Status:
Nonimmigrants in most status categories may change their status to
H1B. The most common exception encountered is nonimmigrants in J-1
status that are subject to the two-year foreign residency requirement.
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. Photocopy the
following documents:
- passport pages that have your picture and personal information,
as well as official information;
- passport page with the appropriate visa stamp on it;
- both sides of your Form I-94;
- both sides of your I-797 approval notice;
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.
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.
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 another prospective employer files an
H1B petition for concurrent employment.
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.
Denver Colorado EMPL H-1B Visa Lawyer, Aurora
Boulder L Visa Attorney, James S Sarpong, handles all US
immigration matters -- EMPL H-1B Visa, Other
employment-based visas, H, L, E, I-129 application and its
supplements, etc. Browse site for more details.
Aurora Boulder Denver Colorado Family Based
Immigration Attorney / Employment Based Immigration
Lawyer. Aurora Boulder Denver Removal Deportation
Attorney / Lawyer. Adams CountyArapahoe County,
Boulder County, Denver County, Douglas County.
Boulder L Visa Attorney, James S Sarpong, handles all US
immigration matters -- EMPL H-1B Visa, Other
employment-based visas, H, L, E, I-129 application and its
supplements, etc. Browse site for more details.
Aurora Boulder Denver Colorado Family Based
Immigration Attorney / Employment Based Immigration
Lawyer. Aurora Boulder Denver Removal Deportation
Attorney / Lawyer. Adams CountyArapahoe County,
Boulder County, Denver County, Douglas County.
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Law Office of James S. Sarpong, LLC
"Providing Legal Solutions to Individuals, Families, and Businesses."
© 2008 by Law Office of James S. Sarpong, LLC. All rights reserved. Note: Some
articles, definitions, and terms on this website were reproduced from other sources,
and have been so stated/credited. Disclaimer: The information you obtain at this
site is not, nor is it intended to be, legal advice. You should consult an attorney
for individual advice regarding your own situation.
articles, definitions, and terms on this website were reproduced from other sources,
and have been so stated/credited. Disclaimer: The information you obtain at this
site is not, nor is it intended to be, legal advice. You should consult an attorney
for individual advice regarding your own situation.
| LOJSS - Expertise, Integrity, Results. |
Phone: 303-991-5756 Email: info@sarponglaw.com
Denver Colorado EMPL H-1B Visa Lawyer, Aurora Boulder L Visa Attorney
Fiance(e) K1 Visa Lawyer, Aurora Boulder K3 Attorney, US Immigration, Asylum,
Naturalization/Citizenship, Deportation/Removal, Green Card/Adjustment of
Status, N-400 Application, Citizenship, I-485, Permanent Resident, Family
Based, I-130, Work Permit, Visas, immigration attorney, immigration lawyer,
employment visa, green card, h1b visa, l1, eb1, adjustment of status,
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pueblo, summit county, immigration, naturalization, asylum, citizenship,
employment visa, h-1, h-2 uscis, ins.
Fiance(e) K1 Visa Lawyer, Aurora Boulder K3 Attorney, US Immigration, Asylum,
Naturalization/Citizenship, Deportation/Removal, Green Card/Adjustment of
Status, N-400 Application, Citizenship, I-485, Permanent Resident, Family
Based, I-130, Work Permit, Visas, immigration attorney, immigration lawyer,
employment visa, green card, h1b visa, l1, eb1, adjustment of status,
outstanding, professor, researcher, green card, fiancee, national interest
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| What's New Refugees cause worry about Mich. economy By JEFF KAROUB, Associated Press Writer 2 hrs ago Immigrating to U.S. becomes much costlier Many fees to skyrocket by end of the month — $1,010 for a green card |
For: Aurora, Cherry Creek,
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The Law Office of James S.
Sarpong, LLC is a Denver,
Colorado based US
Immigration Law Firm that
has several office locations
throughout the Front Range
and the Denver Metro Area,
and provides immigration
law services to clients
throughout the United
States (U.S.) and the world,
including Colorado (CO),
Wyoming (WY), Idaho (ID),
Denver, Arvada, Aurora,
Boulder, Colorado Springs,
Fort Collins, Greeley,
Highlands Ranch,
Lakewood, Longmont,
Pueblo, Westminster,
Cheyenne, Jackson Hole,
Sheridan, Rock Springs,
Boise, Idaho Falls, Nampa,
Pocatello, Denver County,
Adams Country, Arapahoe
County, and Jefferson
County.
Sarpong, LLC is a Denver,
Colorado based US
Immigration Law Firm that
has several office locations
throughout the Front Range
and the Denver Metro Area,
and provides immigration
law services to clients
throughout the United
States (U.S.) and the world,
including Colorado (CO),
Wyoming (WY), Idaho (ID),
Denver, Arvada, Aurora,
Boulder, Colorado Springs,
Fort Collins, Greeley,
Highlands Ranch,
Lakewood, Longmont,
Pueblo, Westminster,
Cheyenne, Jackson Hole,
Sheridan, Rock Springs,
Boise, Idaho Falls, Nampa,
Pocatello, Denver County,
Adams Country, Arapahoe
County, and Jefferson
County.