H-1B Visa

At this time, foreign professionals cannot apply for H-1B Visas without a petitioning employer, but the Immigration Service is currently reviewing this rule. The U.S. employer must initiate the process by filing a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor (DOL). On the LCA, the employer must attest that it will pay the H-1B Visa worker the prevailing wage for the work being performed, and that the foreign worker will not adversely affect the working conditions of similarly employed U.S. workers.

Once the DOL approves the LCA, the employer must request the H-1B Visa for the foreign professional on the Immigration Service’s forms, and must follow all other H-1B program rule. The employer must keep the LCA and other documents in a publicly accessible file, must notify the Immigration Service if the foreign professional quit or is terminated, and must pay all fees for the Visa petition. Additional rules apply to employers who are dependent on H-1B workers or are willful violators of the H-1B rules. 

An H-1B dependent employer is, generally, one whose H-1B workers comprise 15 percent or more of the employer’s total workforce. Different thresholds apply to smaller employers. Also, H-1B dependent employers who wish to hire only H-1B professionals who are paid at least $60,000 per year or who hold at least a master’s degree in a specialty related to the employment may be exempted from these additional rules. 

The Immigration Service may issue the initial H-1B Visa for up to three years, and may then extend the Visa in one or two year increments for a maximum of 6 consecutive years. In some cases, the H-1B Visa can be extended beyond the 6 year limit. Also, time spent abroad can be “recaptured” if an alien applies to add this time abroad while holding an H-1B Visa to the allotted 6 year stay in the United States. Time spent outside the United States will not count against the 6 year limit of the H-1B Visa.

The H-1B Visa, as opposed to many other nonimmigrant Visas, is known as a ‘dual intent’ Visa. Under the terms of the H-1B Visa, the foreign professional can apply for Lawful Permanent Residency (Green Card Status) in the United States, and the H-1B Visa will not be denied. If an employer wants to, the employer can sponsor a foreign professional with an H-1B Visa status for green card status. This process normally takes 9-14 months to complete.

Once an employer has brought a foreign worker to the United States with an H-1B Visa, if the company dismisses the employee before the expiration of the Visa, the employer is responsible for the employee’s travel costs back to his/her place of last foreign residence.

If a foreign worker in H-1B Visa status resigns or is dismissed from the sponsoring employer, and chooses not to return to his last foreign residence, the worker must either apply for a change of status to another non-immigrant status in the United States or find another employer who is willing to petition for an H-1B Visa on the worker’s behalf. In no event should the foreign professional remain in the United States for longer than six months after termination of employment without some other Visa status.