What Does the Employer do?
Qualify as a US Employer.
The employer must have a US taxpayer identification number. Foreign businesses not established in the US cannot use this visa to bring employees here.
Obtain an Approved Labor Condition Application.
The employer must prepare and file a Labor Condition Application (LCA) with the Regional Office of the Department of Labor (DOL). The LCA is a form which must be carefully prepared and posted in two conspicuous places at the work site. The form requires the employer to describe the position and the salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and the giving of notice.
Once the LCA is approved, the employer files a petition with the Bureau of Citizenship and Immigration Service (BCIS). The employer must document that the position requires the services of a person in a "specialty occupation." This means a person who is working in a professional position and who has a minimum of a bachelor痴 degree or its equivalent.
What Are the Employer's Liabilities?
Completing the LCA is just the beginning. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees. Upon request, these records must be provided to DOL痴 Wage and Hour Division.
Failure to comply with LCA requirements may result in a fine ($1,000 to $35,000 per violation) and the employer could even lose the right to apply for H-1B visas as well as all other immigrant and nonimmigrant visas for up to one year. Detailed information is available at Http://www.foreignlaborcert.doleta.gov/h-1b.cfm
If the employer terminates the services of the employee prior to the expiration of the H-1B visa the employer is responsible for paying the employee痴 return transformation to his or her last foreign residence.
What does the Employee do?
The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The employee must be able to show that his or her foreign university degree is the equivalent to a US degree by obtaining a credentials evaluations of his or her education. The study or degree of equivalency must be related to the job offer.
If the worker is in the US and currently holds a valid nonimmigrant visa status, he or she may apply in the US for the H-1B visa. For example, if he or she is in lawful student status (F-1) the worker may seek a change from F-1 to H-1B. This change only gives the person the ability to work in the US for the sponsoring employer. If the worker needs to travel abroad, he or she will need to apply for an H-1B visa at a U.S. Consulate. Workers not in lawful status in the U.S. or those residing abroad, must apply for an H-1B visa at a U.S. Consulate.
How Long Can the H-1B Employee Remain in the US?
The H-1B is a temporary visa with specific limitations on periods of stay on the United States. The initial petition may be approved for up to three years. After the initial period, three or more years are available.
The employer must update or refile the LCA and must file H-1B petition extensions. After six years, the worker must spend one year outside the United States before he or she is entitled to have another H-1B visa. Many workers on H-1B visas obtain permanent resident visas (the "Green Card") during their initial stays in the U.S.
The H-1B employee痴 spouse and unmarried children under 21 years old may be granted an H-4 visa. An H-4 visa holder is not permitted to work in the United States. They may, however, attend school.
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will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowldege and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the speciality occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation;
Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
Beneficiary qualification To qualify to perform services in a speciality occupation, the alien must meet one of the following criteria:
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Documents for H1 Processing
Documents for H4 Processing (For your spouse and children)
Basic Requirements for H-1B Petition: 8 C.F.R.ｧ 214.2(h)
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The Revalidation Division has discontinued its domestic visa revalidation (or reissuance) service. Notification of the discontinuation of domestic visa revalidation services was published in theFederal Register
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To file the visa application, you will need to submit the following documents to the consulate or embassy:
The I-824 filing might be required, as certain consular officers request that the American Consulate be notified directly from INS/BCIS the approval of your H-1B petition. Please check with the consulate of your choice for the local procedures and be aware of the I-824 processing could take many months. Individuals seeking appointments should be aware that applicants may be more likely to encounter difficulties at the time of interview when they apply for a visa outside of their home district. Consular officers at border posts will deny visas whenever they believe there are fraud indicators present, or their lack of knowledge of local conditions and familiarity with hdocuments from the applicant's home country prevents them from properly adjudicating the case.
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Q1: How does AC21 affect the H-1B cap?
A1: Section 214(g) of the Immigration and Nationality Act (Act) sets an annual limit on the number of aliens that can receive H-1B status in a fiscal year. For FY2000 the limit was set at 115,000. AC21 increases the annual limit to 195,000 for 2001, 2002 and 2003. After that date the cap reverts back to 65,000.
Q2: Are there new exemptions to the H-1B cap?
A2: Yes. In addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from: ・Institutions of higher education; ・Related or affiliated nonprofit entity, or ・Nonprofit or government research organization. AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an "exempt" employer to an employer that does not have an exemption. In addition, the FY 2001 cap does not include H-1B petitions filed after INS reached the FY 2000 cap on March 22, 2000 but before September 1, 2000. INS estimates that approximately 30,000 petitions were filed during that time frame.
Q3: How does INS plan to adjust its current counting method so that any petitions filed prior to September 1, 2000 will not count against the FY 2001 cap?
A3: The Service already electronically captures the date a petition was received by INS. Therefore, our ability to electronically separate cases file before 09/01/00 is already in place.
Q4: What steps has INS taken to improve its counting to ensure that multiple beneficiaries are only counted once as required by the new law?
A4: The Service has conducted sweeps of the H-1B data to identify multiple beneficiaries to ensure that they are counted toward the cap only once in past fiscal years. We will continue with that process insuring that we conduct the sweep on using H-1B data for the past six years.
Q5: The bill requires that INS may not count someone toward the cap if they have had H-1B status in the prior 6 years, unless the individual would be authorized for a new 6-year period of stay. How is INS going to implement this? How does this differ from INS・current counting methodology?
A5: INS is revising its regulations to explain when an H-1B worker is eligible for a new 6-year period of stay. System changes will be made in order to allow the Adjudicator to indicate whether an individual who was previously H-1B is now eligible for a new 6-year period of stay. This indicator will enable the Service to properly count an individual toward the cap in these circumstances. Upon approval of the petition, the program will compute the number of H1B visas issued according to the factors as defined by statute.
Q6: The legislation states that the limit for FY 99 is increased by "a number equal to the number of aliens issued such a visa or provided such as status" from the time the limit was reached and September 30, 1999. Is INS interpreting this clause to deal solely with the discovered overage or does INS intend to recapture any visas it issued before September 30, 1999 but had given FY 2000 start dates?
A6: The Service interprets this language as forgiveness for the number of H-1B petitions approved in excess of the FY99 cap due to counting errors. It is not our intent to recapture numbers for cases approved in FY00 toward the FY00 cap.
Q7: When does the law take effect?
A7: Almost all of the provisions of AC21 and the related legislation are effective immediately upon enactment. The law was officially enacted on October 18, 2000. The sole exception is the increase in H-1B petitioner fee from $500 to $1000, which takes effect on December 17, 60 days after enactment.
Q8: Are there new exemptions from the ACWIA (now $1,000) fee?
A8: Yes. Employers now exempt from paying the fee include: ・Institutions of higher education and related or affiliated non-profit organizations; ・Non-profit or governmental research organizations; ・Any employer who is filing for a second extension of stay for an H-1B nonimmigrant; ・Primary or secondary education institutions; or ・Nonprofit entity engaged in "established curriculum-related clinical training of students". Although the fee increase does not take effect for 60 days, the new exemptions from the fee are effective immediately. Thus the new exempt organizations are exempt as of October 18, 2000. INS is working to change its forms and systems to accommodate this change but this will take time. In the meantime, petitioners claiming to be exempt should submit a copy of the relevant provision of AC21 with their petition along with evidence that they qualify as an exempt organization. Petitioners should also note on Form I-129W the basis for the exemption, notwithstanding the fact that the form will not initially contain the necessary boxes to check for these new exemptions.
Q9: Are there any new filing exemptions?
A9: Yes. An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
Q10: Who is eligible to use the H1B "portability" provisions?
A10: The portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the alien. Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed "before, on, or after" the date of enactment, so all aliens who meet this definition can begin using the portability provisions.
Q11: Are there any other limitations on the portability provisions?
A11: An alien must have been lawfully admitted into the United States. The new employer must have filed a "non-frivolous" petition while the alien was in a period of stay authorized by the Attorney General. A non-frivolous petition is one that has some basis in law or fact. INS plans to further define this in its implementing regulations. Subsequent to such lawful admission, the alien must not have been employed without authorization.
Q12: How will employers who hire H-1B aliens using the portability provisions comply with their I-9 requirements?
A12: Current regulations at 8 C.F.R. 274A.12(b)(20) authorize employment with the existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this could involve attaching a copy of the receipt notice for the filed petition along with a copy of the alien's I-94 to the I-9 kept on file.
Q13: When will the Implementing regulation be published?
A13: INS is currently drafting the regulation. Because of the new $1,000 fee increase, it is possible that in addition to the normal DOJ and OMB review, this regulation will have to undergo the additional review required by the Small Business Regulatory Enforcement Fairness Act of 1996. If this is the case it is unlikely that the regulation will be published before March 2001. INS is exploring ways to expedite publication of the regulation.
Q14: What benefits are available under AC21 to aliens with Immigrant petitions/adjustment applications?
A14: First, ｧ 104 of AC21 lifts the per-country limits on employment-based immigrant visa numbers if the total number of visas available during a calendar quarter exceeds the number used. The Department of State is charged with issuance of these visas and maintenance of priority dates and availability. This issue will not be addressed in INS regulations. Where the country caps delay an alien's immigration notwithstanding this provision, AC21 also provides for an extension of H-1B status until the alien's adjustment of status application can be processed and a decision made. Finally, AC21 gives extensions of H-1B status in one-year increments to H-1B aliens who have an employment-based immigrant visa petition or application for adjustment of status pending if It has been more than 365 days since the visa petition or the labor certification application has been filed. Note that the adjustment application, labor certification, or visa petition need not necessarily have been pending for a year to obtain this benefit. The only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition.
Q15: Will H-4 dependents of H-1B nonimmigrants be able to receive these extensions?
A15: The AC21 does not address this issue but speaks only of aliens issued a visa or otherwise provided nonimmigrant status under the H-1B provisions of the Act. INS is studying this issue, which will be addressed in the implementing regulations currently under development.
Q16: How will employers demonstrate I-9 compliance for H-1B aliens granted extensions beyond the six-year period in INA 214(g)(4)?
A16: Current regulations at 8 C.F.R. 274A.12(b)(20) authorize employment with the existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this involves attaching a copy of the receipt notice for the extension along with a copy of the alien's I-94 to the I-9 kept on file.
Q17: The law requires that any visas revoked due to fraud are recaptured and restored to the total available for the current fiscal year. How does INS intend to do this?
A17: INS already has the ability to electronically identify those cases that are revoked due to fraud as opposed to those that are revoked for other reasons. Therefore, this should not be an issue.
Q18: The law mandates INS processing times of 180 days. Given the current budget situation does INS feel that it can realistically meet this goal?
A18: The new law does not mandate any processing times. It does, however, indicate that it is the sense of Congress that adjustment applications should be completed in no more than 180 days and nonimmigrant petitions should be processed in no more than 30 days. This sense of Congress is followed by recognition that INS is in need of appropriations for infrastructure and other improvements. INS will in the process of collecting data in an attempt to comply with the reporting requirements necessary to be eligible for consideration of appropriations that may be granted to aide in the reduction of processing times. There is no guarantee that Congress will appropriate funds for the improvements necessary to reduce backlogs and improve processing time within the Service even if INS complies with all of the reporting requirements set forth in the statute.
Q19: Given the large increase in the volume of applications, does INS feel that it can maintain its current processing goals of 60 days for H-1B petitions and 90 days for I-140 petitions given that Congress has only earmarked 4 percent of the new H-1B fee for INS processing?
A19: The Service will do its best to maintain current processing times. Much of our ability to maintain the processing times will be a result of the budget that is passed and our ability to direct overtime funds to the offices that will be impacted by the increased filings. Although we have been authorized to hire individuals into term positions to deal with the increased filings, the hiring and training process are lengthy and the true benefits of the hiring will not be realized for several months.
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Copyright © 1998 Jerry C. Chang Law Office, P.C.