Introduction

The H-1B category is an expedient and lawful method to bring foreign-born professionals temporarily to the United States, and therefore one of the most widely sought after visa classifications for employment in the United States. To obtain an H-1B visa, there must be a job offer and an employer who is willing to sponsor a person by filing a petition with the Immigration & Naturalization Service. INS will review the petition and send an approval notice if it is satisfied that all conditions for an H-1B worker are met. An individual may have a petition filed for him from more than one employer if he or she seeks employment in two jobs. Also, if an individual is in H-1B status and seeks to change jobs, then he or she must have a petition filed for him by his or her new employer.

An individual may work in H-1B status for a maximum of six years. However, a petition will not be granted for more than three years. An extension of stay is requested if an individual is in H-1B status already and he or she is eligible for a longer period of employment. INS will generally not grant a petition for self-employed people. A petition may be filed by a job contractor, namely a person or entity that pays its employees for services performed at the work sites of other employers.

Change of Status

If the beneficiary of an H-1B visa is in the U.S. in valid status (e.g., F-1 visa), he or she may change status. If the beneficiary is not in the U.S., he or she must go to the U.S. Consulate to apply for an H-1B visa upon INS's approval of the employer's petition. Dependent immediate family members (spouse and children under 21 years of age) may enter on the H-4 visa along with the principal beneficiary.

In general, most nonimmigrant visa classifications require that a person maintain a foreign residence abroad and show that he or she is coming to the U.S. temporarily. However, the law allows a person on an H-visa to have "dual intent," which is arguably the most beneficial aspect of obtaining this visa. Under the dual intent doctrine, a person may come to the U.S. temporarily and lawfully seek permanent residence in the United States at the same time. Therefore, the filing of a labor certification or an employment based preference petition will not cause denial of an H-1B petition filed with the INS or an application for an H-1B visa at a U.S. Consulate abroad.

Specialty Occupation

The employer seeking the services of an H-1B visa holder and filing the necessary papers to obtain such services must be a "U.S. employer." The employer must demonstrate that the position is one requiring a professional in a specialty occupation and that the intended employee has the required qualifications.

Definition of a specialty occupation is an occupation that requires a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty or its equivalent as a minimum for entry into the occupation.

Although this may seem like a great deal of jargon for most people, it is essentially a safe bet to look at the position and see if the normal minimum requirement for entry into the particular position is a bachelor's degree (or its equivalent). A position that would normally not require a bachelor's degree for entry into the field may qualify as specialty occupation if the position is so complex or unique that only a person with a degree can perform the requisite duties.

Positions that are traditionally considered professional positions would most likely qualify as a specialty occupation. They include positions such as architects, engineers, lawyers, physicians, teachers in elementary or secondary schools, colleges or seminaries. INS has indicated through decisions over the years that accountants, computer professionals, social workers, medical technologists, dieticians, economists, mechanical engineers, and librarians may also qualify as specialty occupations.

Education

After establishing that a particular position qualifies as a specialty occupation, the employer must show that the foreign worker sought meets the requirements needed to engage in a specialty occupation.

The person must hold a U.S. bachelor's or higher degree from an accredited college or university and the degree must be required to qualify in the specialty occupation.

If the person holds a foreign degree, then that degree must be determined to be the educational equivalent of a U.S. bachelor's degree. In some cases, a person may obtain an educational equivalency through a combination of education, specialized training or progressively responsible work experience. Three years of specialized experience is generally considered equivalent to one year of college education.

DOL and INS requirements

The effect of a foreigner's admission on the jobs of U.S. workers is a major issue in U.S. Immigration policy and law. Therefore, an employer who petitions for a nonimmigrant worker must comply with a number of conditions and regulations. In addition to showing that both the job requirements and the applicant's credentials or experience are "professional," the employer must also meet the Department of Labor ("DOL") requirements and file Form I-129H ("H-1B petition") with the INS for permission to employ the foreign national.

Prior to filing the H-1B petition with the INS, an employer must file a labor condition application ("LCA") with the Department of Labor. Employers affirm in the labor condition application that the wage offered to the applicant is at least as high as that paid by the employer for the same type of job, and the number equals or exceeds the prevailing wage for the job in the same geographical area; that working conditions will not adversely affect those workers similarly employed; that there is no strike or lockout at the employer's premises; and that the notice of the LCA has been given to current employees.

Computer Professionals

Computer Professionals typically work at client sites through an agreement between the petitioner (employer) and its customer. An employer who seeks the services of an H-1B worker at more than one location must provide an itinerary. In certain circumstances, the INS (Immigration and Naturalization Service) requires presentation of "third party contracts" between the petitioner and the petitioner's customer (at whose site the H-1B employee will work), allegedly to determine whether employment is "speculative."

Instead of an Approval Notice, inexperienced attorneys commonly receive an INS Notice of Action in response to filing an H-1B petition for computer professionals. The Notice of Action normally uses boilerplate language and states "[t]his Service accepts that you are the employer, not an agent, and that you retain control over the beneficiary's employment. A copy of the agreement(s) are needed to establish that the employment of the beneficiary is not speculative in nature, and that the beneficiary will be employed in fact. Service regulations specify that aliens admitted to the United States as nonimmigrant workers must have services to perform...."

An employer seeking the services of an H-1B alien and filing the necessary papers to obtain such services must be a "U.S. employer." A U.S. employer is a person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number. There must be an employer-employee relationship, as indicated by the fact that the employer may hire, fire, pay, supervise or otherwise control the work of the employee.

As a prerequisite to obtaining the services of an H-1B worker, the employer must file a labor condition application (LCA) with the Department of Labor (DOL). Among other things, the LCA must be filed where the work will actually be performed. Therefore, if the alien is to be hired by a company located in one place but will actually be doing the work in another facility or company, the LCA should be filed in the second jurisdiction. If the alien works in more than one location, both locations should be listed. If the employee is employed sequentially in various employment locations, the LCA should be submitted to the DOL office having jurisdiction over the initial place of employment.

H-1B Renewal

An H-1B visa is normally issued for the period of validity of the approved H-1B petition (maximum of three years). The H-1B visa may be extended for another three years. Therefore, the H-1B worker is likely to need a renewal of his visa if he or she intends to remain in the United States up to the six-year maximum period of eligible stay. If the H-1B worker never leaves the U.S. during the six-year period, a new visa is not required. If, however, the worker needs to travel abroad after expiration of his or her original H-1B visa, a new visa must be obtained in order for the H-1B worker to re-enter the U.S.

Please note that the H-1B visa must initially be issued at a consular office abroad. (Therefore, e.g., a "change of status" from B-1 or B-2 or F-1 to H-1B requires the beneficiary to obtain the initial H-1B visa at a consular office abroad in order to re-enter the U.S.)

An H-1B worker may have his or her H-1B visa reissued at the Visa Office of the State Department, Washington, D.C. The following documents should be submitted to the Visa Office:

  1. Passport (valid for at least six months) for the principal and each family member. The passport must contain a previous H-1B visa, and that visa must have no more than 60 days of remaining validity, nor have expired more than one year ago. As each visa applicant will receive an individual visa, the passport must contain an unmarked page for each U.S. visa that will be placed in the passport. (For example, if a parent and two children included in the same passport will all receive visas, the passport must contain three unmarked pages.)

  2. The original Form I-94, issued when the applicant last entered the U.S., for the principal and each family member.

  3. Form I-797, the original INS approval notice which states the applicant's current employer and shows the approved extension of temporary U.S. stay.

  4. Letter of support from the employer. This letter must describe the nature and function of the applicant's position, the kind of business, what it does, why the visa is needed, and a list of dependents. The letter must be addressed to the Visa Office, Department of State. H-1B visa applicants must show an unrelinquished residence in a foreign country which they have no intention of abandoning and must indicate when their temporary work assignment ends.

  5. Properly executed, typed Form OF-156, Nonimmigrant Visa Application, and a passport-size photo for each visa applicant, regardless of age. Please spell out the month of birth (i.e., write January 2, not 1/2 or 2/1). The Visa Office is notorious for returning improperly filled out applications without visas.

  6. If the spouse and/or dependent children are applying for visas separately from the principal alien, certified copies of the principal alien's visa and valid I-94 (front and back) must be submitted in addition to all other requirements.

  7. Filing fee (if required of nationals from the alien's country), in a money order or certified check, made payable to the Department of State. The fee varies according to country.

  8. Separate $45 machine-readable visa (MRV fee) in a money order, certified check, or corporate check made payable to the U.S. Department of State. The $45 fee must be paid for each visa applicant, even when several of the applicants are included in the same passport (e.g., a parent and her children). The fee is additional to any applicable nonimmigrant visa application fee, and must be paid separately from that fee. A single check including both fees will not be accepted.

  9. A self-addressed, stamped or pre-paid envelope or properly prepared courier pack for return of the passport(s).

Amended H-1B Petition

The H-1B is a temporary professional work visa which is employer specific and is issued on a conditional basis. The Immigration & Naturalization Service must be informed of material changes in the employment approved by the INS in the initial petition. When "material" changes occur requiring INS notification, an amended petition must be filed with the INS.

Material Change

The regulations only state that the petitioner (employer) must file an amended petition to reflect any material changes in the terms and conditions of the alien's employment. A material change is a change that directly impacts the alien's continued eligibility for H-1B classification. The regulations do not contain any specific examples of situations where an amended petition should be filed. The determination must be made on a case-by-case basis, according to Yvonne M. LaFleur, Chief INS Adjudicator for the Nonimmigrant Branch.

Instructive Example

A query concerning material changes was directed to Ms. LaFleur by a fellow American Immigration Lawyers Association member. The query conceded that when a material change occurs, an amended H-1B petition, including a new labor condition application, is required. In seeking practical guidance as to what types of changes are considered material, the following example was given:

"Assume an employer obtains approval of an H-1B visa petition to employ an individual as a Loan Administrator for a three-year period at an annual salary of $27,000. If, after a one year period, the employer seeks to employ that H-1B employee as a Finance Coordinator, performing some of the same duties, but adding responsibilities, including supervisory duties, at a salary of $35,000, would an amended petition be required? If so, would such an employer be penalized for filing an amended petition after the change had already taken place, as opposed to filing an amended petition prospectively?"

Chief LaFleur replied that a promotion to a higher position within the same occupation would not normally require the filing of an amended petition provided that the alien is required to utilize the same academic training as was required in the former petition. For example, the promotion of an accountant to a supervisory accountant would not require the filing of an amended petition if the supervisory accountant would still be required to possess the theoretical knowledge of accounting normally possessed by an H-1B accountant.

Specifically responding to the example put to her by Ms. Cohen, Chief LaFleur continued that an amended petition would most likely not be required since, based on the information which was furnished, the alien would still be required to utilize the knowledge of an H-1B Loan Administrator in the performance of his or her supervisory duties.

Chief LaFleur further clarified that there is nothing in the current regulations which specifies when the amended petition should be filed. She concluded that "a petitioner would not be penalized for filing an amended petition after the occurrence of the material change." Of course, the amended petition must be filed, at the latest, within a reasonable amount of time following the material change.

Other Material Changes

An amended petition would also be required if the corporate structure of the employer goes through a significant change, or if the H-1B worker is transferred to a different legal entity within the employer's corporate structure.

Is an amended petition required if there is a change in job location but not any other changes in employment? Yes, according to the INS's interpretation of "material". An amended petition would be required if an H-1B worker is transferred to a location outside the area of employment indicated on the Labor Condition Application (LCA) filed in connection with the H-1B petition. The INS justified this requirement at a recent AILA-INS liaison meeting: "since a valid LCA is required by statute for all H-1B workers, the INS believes that the requirement of a different LCA is a material factor, thus triggering the need to file an amended form I-129 [H-1B petition]."

A change in salary does not generally require filing an amended H-1B petition, unless the change is so dramatic that it indicates a significant change in responsibility or duties.

H-4 Family members

Family members of the H-1B worker are admitted to the United States in the H-4 category. Qualifying family members include only the spouse and unmarried children under 21 years old. Family members are admitted for the same period for which the principal family member is admitted.

Family members may alternatively be admitted in other nonimmigrant categories for which they qualify, such as the F-1 category for children or spouses who will be students or the H-1B category for a spouse whose employer has also obtained approval of an H-1B petition to employ the spouse.

H-4 family members may undertake studies while remaining in the H-4 category. Family members cannot engage in any form of employment in the H-4 category, however. In order to work, family members must obtain Immigration & Naturalization Service permission through the approval of a change of status application to a nonimmigrant category permitting employment.

Case Example

The following question by a fellow American Immigration Lawyers Association (AILA) member was recently put to Ms. Yvonne M. LaFleur, Chief, Nonimmigrant Branch, INS: "Whether the H-4 visa holders maintain their status as long as the principal alien maintains his/her status, or are they also required to re-file to maintain their status in change of employer situations?"

The following facts were furnished to Chief LaFleur: "The principal alien is the beneficiary of an H-1B visa petition by 'Company A'. The visa is valid for a period of three years. The accompanying family member receives an H-4 visa for the same period reflecting the principal alien's employment with 'Company A'. One year later, the principal alien changes employers. A new H-1B visa is petitioned for by 'Company B', and all procedures are followed so that the principal alien is never out of status. The validity dates on the H-4 accompanying family member's visa has two years remaining, but still shows 'Company A' as the H-1B petitioner and not 'Company B'.

Chief LaFleur's response to the AILA member's query acknowledged that an H-4 nonimmigrant alien's authorized stay in the United States is contingent on the continued validity of the H-1B principal alien's status. The H-4 nonimmigrant alien continues to remain in valid nonimmigrant status as long as the principal alien remains in a valid nonimmigrant status.

"Since the H-4 nonimmigrant classification is not specific to an employer, the H-4 nonimmigrant alien remains in valid status even if the principal alien changes H-1B employers. No action is required on the part of the H-4 nonimmigrant alien when the principal H-1B alien changes employers within the same classification."

Chief LaFleur's response should enlighten INS examiners in regards to whether the principal alien's family owes a penalty under Immigration & Nationality Act Sec. 245(i) when adjusting status (procedure leading to issuance of permanent resident status). The INS examiner may in good faith (until now) have believed that H-4 status is violated by not refiling when the H-1B principal alien changes his or her employer.