H VISA CATEGORY

The H-1B1 Visa Category

H-1B1 "specialty occupation" visa category is one of the most common employment-based nonimmigrant petitions for foreign nationals who wish to work in the U.S. for a period of up to six years. H-1B1 workers do not need to maintain a foreign residence during their period of stay in the United States, a requirement imposed on many other nonimmigrant categories.

A "Specialty Occupation" is an occupation which requires theoretical and practical application of a body of highly specialized knowledge to perform fully the occupation, and which requires a Bachelor's or higher degree as a minimum requirement to perform the job duties. It is very important that the degree requirement is common to the industry for similar positions and the employer normally requires the degree for the type of job being offered.

Labor Condition Application:

In order for employers to hire H-1B1 workers, they must first prepare and execute two originals of the Labor Condition Application (LCA), Form ETA-9035, attesting to the following:

• The H-1B worker will be paid the "required wage rate" for the occupation, which is the higher of the prevailing wage for the occupation in the area of intended employment or the actual wage paid to similar employees of the employer in the same occupation at the work site.
• The employment of the H-1B worker will not adversely affect the working conditions of other similarly employed workers,
• There is no strike, lockout, or work stoppage in the course of a labor dispute affecting the employer's employees in the occupation at the work site.
• A notice of the LCA filing has been provided to other workers at the location. Notice may be accomplished by posting a copy of the LCA or a written summary with specific information about the LCA in two conspicuous locations at the work site for ten consecutive business days.

The original LCA must be filed with the Department of Labor (DOL). It usually takes between three to seven working day for the DOL to certify the LCA. Once certified, the petition can then be filed with the INS.

INS Petition

The INS petition is filed on Form I-129 with the INS Service Center with jurisdiction over the work site. The INS petition must be accompanied by documentation that the job to be filled by the H-1B worker is a "specialty occupation," including evidence that the H-1B1 worker has the necessary credentials to qualify for a specialty occupation. If the worker has a foreign degree, that degree must be evaluated by a recognized degree evaluation service. If the worker is lacking the degree usually required to enter the occupation, his or her education and experience must be evaluated to determine whether his or her overall credentials are the equivalent of the usually required degree. Credentials evaluations are required in cases in which the normal university degree is lacking.

The INS Service Center normally takes about two to four months to adjudicate the H-1B petition. Only after the petition is approved may the H-1B worker take the approval notice to a U.S. consulate to obtain an H-1B visa to enter the United States. If the petition has indicated that the H-1B worker is already in the United States in valid H-1B1 status, the worker may commence employment for the employer once the H-1B petition is filed (our office recommends to our clients to wait until our office receives the receipt notice from the INS). Approval of an initial H-1B petition may be given for up to three years, and extensions of stay may be granted to a maximum period of stay of six years.

Ongoing Obligations

The employer has several continuing obligations once the petition has been approved. For example, if the H-1B worker is assigned to work sites not listed on the original LCA, additional steps must be taken. These steps must include a new posting at the additional work site or the filing of a new LCA (with a new prevailing wage determination, actual wage calculation, and posting), depending on whether the new work sites are within an area of employment listed on the original LCA. If there are any changes in the employment described, then a H-1B petition must be approved by the INS through the filing of an amended petition. The INS interprets assignment to additional work sites requiring a new LCA to be material change requiring the filing of an amended petition.

The employer also has an obligation to produce its LCA documentation to any requester (the public inspection file) or to the DOL (all documentation). The DOL may investigate the employer's LCA based either on a complaint from an "aggrieved" party or on its own initiative. A DOL finding that the employer has violated the LCA requirements, such as through "willful" failure to pay the required wage rate or "substantial" failure to post a notice of the LCA filing, could result in penalties, payment of back wages, and being barred from filing LCAs or permanent labor certifications, or obtaining approval of H, L, O, and P non-immigrant or employment-based immigrant petitions for at least one year.

Finally, the employer has an obligation to pay the costs of return transportation for any H-1B worker whose period of employment is terminated prior to the expiration date of the worker's status. The INS expects the employer to meet this obligation, although it does not directly verify compliance.

The H-2 Visa for Temporary and Seasonal Workers

Who is Eligible?

An international beneficiary who is offered a job by a U.S. employer may enter the U.S. for a temporary time of specified duration to fill the offered position. The employment must be a one-time need based upon low U.S. worker availability, seasonal, or cyclical needs.

Petitioner must prove to the satisfaction of the United States Consul official that:

1. U.S. COMPANY IS OFFERING EMPLOYMENT - The employer must be offering a position that is temporary and based on unusual need;
   
2. PERIOD OF EMPLOYMENT MUST HAVE SPECIFIC ENDING DATE - The offered position must be an isolated occurrence that has a specific foreseen ending date. The position may not be a consistently vacant position, but the need for the Beneficiary must arise due to seasonal, cyclical, or tight labor market circumstances;
   
3. TEMPORARY LABOR CERTIFICATION - The Petitioner must obtain a temporary labor certification certifying that no U.S. workers will be adversely affected by the employment of the international Beneficiary. Further, the Beneficiary must be paid a wage equal to or exceeding a minimum prevailing wage for workers in the same position set by the state where Beneficiary shall work.

Documentation Requirements

1. Approved temporary Labor Certification from U.S. Department of Labor certifying that no U.S. workers are available to fill the offered position, and that no U.S. workers will be adversely affected by the employment of the international Beneficiary;
   
2. Proof that job offered is for a short specified duration with date certain for ending date;
   
3. Proof that beneficiary has the job qualifications necessary to fill the offered position, that is, training, education, or letters of reference;
   
4. Job offer letter describing position, temporary need of employee, and terms and conditions of employment.

Duration of Stay

Once approved, an H-2B Visa is good for the length of the TLC for a maximum of one year. Renewals for an H-2B visa may be extended for a maximum of three years in one-year increments. Upon reaching completion of the maximum stay a Beneficiary must depart the U.S. for at least six months.

The H-3 Visa Category for Trainees

Who is Eligible?

The H-3 visa is for an alien coming to the United States to receive training from an employer in any field other than graduate education or training. This covers a specific course of job-related training that has been planned in the United States which may include employment incidental to the training period.

When an application is made in this category, the employer must state that the training is not available in foreign nationals, and why it is necessary for the alien to take training in the U.S.

"Special Exchange Visitors" may also apply for nonimmigrant visas under the H-3 category. A "Special Exchange Visitor" is one who seek to enter the U.S. to gain practical training in educating children with physical, mental, or emotional disabilities. The alien must have a foreign residence they have no intention of abandoning, and they may stay in the U.S. for up to eighteen months. Only 50 aliens per year may enter the U.S. in the Special Exchange Visitor category.

Documentation Requirements

The documentation that is required to be filed with the I-129 petition varies depending on the H-3 sub-category in which the alien is seeking to obtain training.

For those individuals seeking to obtain training in a special education training program, the petition must be filed with the following documentation:

1. A description of the training, staff, and facilities;

2. Evidence that the program provides special education to children with physical, mental, or emotional disabilities, and that any custodial care of the children is only incidental to the training program;

3. Details of the alien’s participation in the program;

4. Documentation that the alien is nearing the completion of a baccalaureate degree in special education, already holds such a degree, or has extensive experience in teaching children with physical, mental, or emotional disabilities.

For those individuals seeking to obtain training from an employer in any other field (other than graduate education or training), the petition must be filed with the following documentation:

1. A detailed description of the structured training program, including the number of classroom hours per week, and the number of hours of on-the-job training per week;

2. A summary of the prior training and experience of the alien; and

3. An explanation of why the training is required, whether similar training is available in the alien’s country, how the training will benefit the alien in pursuing a career abroad, and why the employer is willing to incur the cost of providing the training without significant productive labor.

Duration of Visa

An H-3 visa for an alien trainee may be valid for a period of up to two years.

An H-3 visa for an alien participant in a special education training program may be valid for up to 18 months.

If H-3 visa holder has remained in the U.S. for the maximum period of time, as stated above, he/she may not seek a change of status, extension, or readmission to the U.S. in H or L status until he/she has resided outside of the U.S. for a period of six months.

Status of Spouse and Minor Children

A spouse or unmarried child of an H-3 visa holder is entitled to an H-4 visa, and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States.