Frequently Asked Questions About H-1B Temporary Work Status

By Scott M. Borene and George C. Maxwell*

1. What is an H-1B visa?

The H-1B program is the primary method for temporarily employing professional level foreign employees in the United States. It is especially useful in “new hire” situations. The H-1B category is for workers in ‘specialty occupations’ – jobs that normally require at least a four-year university degree in a specific field. Although the term “H-1B visa” is frequently used to describe this category of work authorization, the term “visa” relates only to the document a foreign worker must show to the immigration inspector when seeking to enter the U.S. Once here, the foreign worker is given another document (which is not a visa) that indicates the worker’s H-1B employment-authorized immigration status and the expiration date of their authorized stay in the United States.

2. When would an employer use the H-1B program?

The H-1B visa category is appropriate for most situations where the employer must fill a complex position that is likely to continue for up to several years or even longer. If the foreign candidate has an appropriate bachelor-level or higher degree or equivalent experience and if such a degree is the employer’s minimum educational requirement for the position, and if the intended wage is competitive, the H-1B category may be the best option. If the candidate is a Canadian or Mexican or Australian citizen or currently an employee of an affiliated entity outside the United States, other categories such as the TN, E-3, or L-1 may also be considered.

3. Is there a quota limiting the number of new H-1B workers?

Yes. Currently, there is an annual quota for new H-1B workers, which opens on April 1st of each year for an H-1B position that would begin on October 1st. Quota numbers are distributed by lottery if oversubscribed, but are otherwise provided on a first-come first-served basis. If the quota is reached, H-1B’s for new H-1B workers may not be available again until the next fiscal year. This means the employer could apply again on April 1st of the next year for an H-1B for October 1st of that year, when the U.S. Citizenship and Immigration Services (USCIS) next fiscal year begins. There are quota exemptions for employers hiring workers who are already in the U.S. working in H-1B status, for H-1B employees of colleges and universities, and for certain physicians. In addition, a portion of the quota is reserved for workers from Chile and Singapore, and a separate quota is available for H-1 workers who have received a U.S. advanced degree (i.e. Masters Degree or higher).

4. Must the employer demonstrate that there is a shortage of qualified U.S. workers to obtain H-1B approval?

No. The H-1B employer need not advertise or show an effort to hire U.S. workers. H-1B rules seek to protect U.S. workers primarily by mandating the employer’s compliance with H-1B prevailing wage requirements.

5. What legal requirements must the employer satisfy to be eligible to employ an H-1B worker?

The employer must first establish that a specific bachelor-level or higher degree or equivalent is normally the employer’s minimum requirement for the position, and that it will pay the prevailing wage for that position in the area of intended employment. In addition, the H-1B program requires that an employer pay H-1B workers at least as much as its similarly employed workers with comparable qualifications. The employer must notify other workers in the occupational classification at the intended location of employment that an H-1B worker is being hired to fill the position and will be paid at least a certain specified wage. The employer must attest to the above requirements on forms filed with the U.S. Department of Labor and the U.S. Citizenship and Immigration Services. Normally, the employer’s H-1B petition must be approved before employment may begin.

6. What legal requirements must the employee satisfy to be eligible to use an H-1B work status?

The employee candidate must document their educational credentials, and meet the normal screening criteria for entering the U.S. or changing from another immigration status in the U.S. If a candidate has a history of immigration violations or criminal activities, the H-1B status may be denied. If an H-1B candidate does not have a bachelor degree, it may be possible to document experience that is considered equivalent to the degree. If the candidate is outside the U.S., and does not hold a valid H-1B visa, she or he must usually present the employer’s H-1B approval notice along with other visa application materials to a U.S. embassy or consulate outside the U.S. and receive an H-1B visa before entering the U.S. for employment.

7. How long is an H-1B valid?

The initial petition for an individual worker can be approved for up to three years. The validity of an H-1B petition is linked to the particular employer, employee, job duties, location and wage. If there are material changes in the terms of employment or the legal identity of the employer during the petition period, the H-1B may be considered automatically invalidated. If the employee engages in work activities not authorized on the petition, the employee is in violation of U.S. laws and potentially deportable.

8. How long does it take to get an H-1B petition filed and a response from the government?

Currently, a reasonable window of expectation after filing the petition with USCIS is as short as 15 days if the premium processing expedite fee is paid. Otherwise it can take several months to obtain a deceision.. Because each H-1B petition revolves around facts related to the individual candidate, as well as to the employer and the position, there is some variation in the preparation and processing time needed for H-1B cases. As described above, if the annual quota for new H-1B workers is reached, the employer may need to wait until the quota becomes available the following year. Always check with qualified immigration counsel regarding the most recent processing times for cases similar to yours and plan ahead. If the candidate is outside the United States, processing time can be increased by several weeks at least while the U.S. government completes security clearances and consular visa processing.

9. Can an H-1B be extended?

The employer may request an extension for up to an additional three years. However, many foreign workers are subject to a six-year limit in H-1B status. Any time spent working under a previous employer’s H-1B petition will count toward the six-year limit in H-1B status. In some cases, it is possible to get permission to exceed the six-year limit on H-1B status.

10. Does it automatically turn into a green card?

No. The process of green card sponsorship is almost entirely separate from the H-1B process.

Many employers choose to sponsor their H-1B workers for permanent resident (“green card”) status, starting the process at least several years prior to the end of the sixth year, in order to obtain alternate employment authorization before the six-year limit is reached. Starting the permanent residence sponsorship process within 6 months or less after the first approval of H-1B status often provides significant immigration advantages to both the employer and the employee. Unlike certain other nonimmigrant statuses, such as F-1 students or B-1/B-2 visitors, an H-1B worker is legally permitted to have both temporary and permanent intentions at the same time (“dual intent”). Both the employer and H-1B employee are allowed to actively pursue permanent resident status for the H-1B worker.

11. How much administrative work by the employer is required?

The employer must review and sign several government forms, and maintain a public disclosure file containing basic information about the job, wages and benefits. It is generally most efficient for an employer to designate an administrative staff person who will become the immigration coordinator for the employer. Although an initial H-1B case may take three or four hours of the employer’s administrative time, subsequent H-1B’s may require about half that time. The employer should maintain a tracking system so any changes in job duties or location will trigger a call to the employer’s immigration law firm.

12. What government agencies are involved?

The U.S. Department of Labor and the U.S. Citizenship and Immigration Services are the primary agencies responsible for administering the H-1B program. If the candidate is outside the United States, the U.S. Department of State may also be involved in the process.

13. What is the role of the employer in the H-1B process?

The employer must provide accurate basic information about the H-1B worker’s intended job duties, normal minimum requirements for the position, and the employer’s financial condition. We can quickly appraise the potential viability of an H-1B sponsorship for any particular H-1B candidate by reviewing the information typically found on a candidate’s resume and the employer’s internal job description. We may ask the employer to complete a simple one-page questionnaire, then review and sign draft forms and documents, which we will submit to the government on the employer’s behalf. In addition, the employer will usually need to post a notice at the place of employment, and maintain an H-1B disclosure file in accordance with our instructions and government regulations.

14. What is the role of the foreign employee in the H-1B process?

The foreign employee or candidate must provide accurate information and documentation at the attorney’s and the government’s request. We generally ask the employee to complete a detailed questionnaire and to gather items from a list of personal documents. The employee must keep the attorney apprised of any intended changes in employment or travel plans so that the lawyer can adjust strategies as needed. If the employee is outside the U.S. or needs to travel outside the U.S., the employee should work with the attorney to complete a visa application form and to prepare for the employee’s interview at the U.S. embassy or consulate abroad.

15. Who is on the employer’s H-1B processing team?

Typically the H-1B team will include an immigration lawyer and a case manager from the employer’s outside immigration law firm as well as the foreign employee, the employee’s immediate supervisor or manager and an HR staff member. At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents. The employer can designate any staff member with appropriate authority to sign the government forms.

The H-1B petition materials will contain information about the job duties and employer’s minimum education requirements, and basic information about the employer’s number of employees and financial condition. If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all H-1B cases. It is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position. Where a large employer will have multiple H-1B cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the H-1B program. Senior executives who are often involved in oversight of the employer’s immigration law compliance responsibilities include Vice President of Human Resources, or Vice President of Administration, COO, or General Counsel.

16. What are the chances of success in a typical H-1B case?

Well-documented H-1B petitions that meet the essential legal requirements may most likely be approved subject to quota availability. A careful screening by the immigration lawyer at the outset will often identify potential complications that could reduce the probability of prompt approval. Immigration counsel in collaboration with the employer may be able to suggest ways to prevent or resolve potential complications. Recruiters and hiring managers should be trained to contact the immigration processing team before an offer is extended to a foreign candidate.

17. Is there a minimum salary requirement?

Yes. The employer must pay the H-1B employee at least as much as it pays similarly employed workers. The wage cannot be less than the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The prevailing wage can be determined through a private wage survey, through a collective bargaining agreement, or through a state workforce agency.

18. Who usually pays the filing fees?

A Department of Labor regulation effective since January 2001 requires that the employer must pay the H-1B filing fees. The optional Premium Processing fee (paid to obtain faster processing) may in some cases be paid by the employee or a third-party.

19. Who usually pays the legal expenses?

As with the filing fee, a Department of Labor regulation generally requires the employer to pay. The regulation states that all costs in connection with preparation and filing of the LCA and H-1B petition are considered the employer’s business expenses and must be paid by the employer, and the employer cannot be reimbursed by the employee. There appear to be only very limited exceptions to this rule.

20. Can the H-1B employee’s spouse and children also get visas?

Yes. H-1B workers’ family members may accompany them in H-4 status. A separate application for the spouse and children may be needed—H-4 status is not automatic. H-4 status is not intended for children 21 years of age or older, or for extended family members such as parents or siblings of the H-1B worker.

21. Can the H-1B’s spouse and children get permission to work in the U.S.?

Employment authorization for family members is not included in H-4 status. Sometimes a spouse will change to H-1B status through an H-1B petition by his or her own employer. If the employee is in the ‘green card’ process it may be possible for the spouse and children to obtain employment authorization during the last stage of that process.

22. Can the H-1B’s spouse and children get permission to attend school as part-time or full-time students in the U.S.?

Yes. Spouses and children in H-4 status may attend school. No special additional permission is required.

23. Can an H-1B worker change employers?

Workers in H-1B status are only allowed to work for a petitioning employer. There is no restriction on changing employers, so long as the new employer follows proper H-1B petitioning procedures. Employers hiring workers already in H-1B status under certain circumstances may be allowed to commence the employment upon filing their H-1B petition, rather than waiting for approval.

24. Can the employer promote, transfer, or otherwise change the terms of employment stated in the employer’s H-1B petition?

Material changes in the terms of employment may be considered a status violation. Material changes may require preparation and filing of new or amended H-1B petition documents. Check with qualified immigration counsel before making any changes.

25. Can the H-1B employee travel outside the U.S.?

Yes, but any travel should be carefully coordinated with the immigration lawyer. Since 9/11, enhanced security clearances and other procedures can lead to unexpected disruptions in employment and visa processing delays. H-1B workers who do not have both a currently valid H-1B approval notice and an unexpired H-1B visa in their passport may be required to go through a lengthy nonimmigrant visa process while outside the U.S. Advance planning with the immigration lawyer before any international travel by the H-1B employee is strongly urged (a minimum of 4 months advanced planning is suggested, if possible). Furthermore, the employer’s cooperation in preparing for the employee’s nonimmigrant visa application is essential to reduce the probability of severe disruptions in employment and visa delays.

26. Are there special procedures to follow if the H-1B employee voluntarily or involuntarily terminates the employment relationship?

Yes. If the employment relationship is terminated for any reason (whether voluntarily or involuntarily, with or without cause), the employer must send written notification to the U.S. Citizenship and Immigration Services Service Center that approved the petition, or risk continuing liability for back payment of wages until the end of the approved petition period. Furthermore, if the employee is dismissed involuntarily, the petitioning employer will be liable for the reasonable costs of return transportation to the worker’s last place of foreign residence. It is therefore recommended that the employer check with qualified immigration counsel before terminating an H-1B worker.

 

*Scott M. Borene is the Founder and Managing Attorney of Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Scott Borene was selected by other lawyers as 2018 Lawyer of the Year in Immigration Law as noted by The Best Lawyers in America and Minnesota Monthly magazine. He has been repeatedly recognized as one of the Top 20 Lawyers in the World “most highly regarded by other lawyers” in corporate immigration law. He is listed in the Best Lawyers in America and acknowledged as an Immigration Law Super Lawyer. He is often called upon to act as an “expert’s expert” to advise other experienced immigration lawyers on complex immigration matters. Scott Borene is a past Director and a past Member of the Board of Governors of the American Immigration Lawyers Association (AILA), the world’s largest professional organization of immigration lawyers. In 2002, he was the founder and Conference Chair of AILA’s Global Immigration Summit in New York City, the world’s largest conference of global immigration lawyers. He has written many articles on immigration law and is a frequently invited expert speaker on immigration topics at AILA National Conferences and other major national and international legal conferences. He is the Editor-in-Chief of many leading professional reference books for immigration lawyers including The Global Immigration Guide: A Country-by-Country Survey and The Global Immigration Guide: Crossing Borders for Business, AILA’s most comprehensive books on Global Immigration. He served as Editor-in-Chief of Immigration Options for Academics and Researchers (2005), AILA’s leading Expert Occupational Handbook on immigration issues in higher education. He is the author of Dr. Yes – Some Practical Strategies for the Diagnosis and Treatment of Immigrant Visa Cases of Health Care Professionals. Scott Borene attended Harvard University in Cambridge, Massachusetts as a National Merit Scholar. After graduation from Harvard, he attended William Mitchell Law School in Minnesota. Scott Borene has more than 30 years of experience helping employers obtain work visas for key international talent. Scott Borene can be reached at sborene@borene.com.

George C. Maxwell is an Attorney with Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Mr. Maxwell concentrates his immigration practice primarily on employment-related and business immigration matters. He is a past Chair of the Minnesota State Bar Association Immigration Section. He is currently Chair of the International Business Law Section of the Minnesota State Bar Association and Vice Chair of the American Immigration Lawyers Association (AILA) Minnesota/Dakotas Chapter. Mr. Maxwell speaks and writes frequently on immigration law topics. He authored Tips and Traps: Managing I-94 Complications, Bench and Bar, 2015, published by the Minnesota State Bar Association. In 2009, he was co-presenter at the Hennepin County Bar Association – Employment Law Section meeting on “Immigration Law for Employment Lawyers.” Also, in 2009, he was the author of Looking for World Class Talent? 20,000 U.S. Work Visas Remain for Newly-Hired Professionals, published in Bench and Bar. Prior to joining the firm, Mr. Maxwell worked first as an attorney for ExxonMobil Corporation at Exxon’s corporate headquarters in Houston, Texas, and then for the Willkie Farr & Gallagher law firm in Washington, D.C. and for the Dorsey & Whitney law firm in Minneapolis. In addition to his extensive experience in immigration law, he has significant experience in international human rights litigation, business litigation, corporate internal investigations, and white collar enforcement and compliance. His prior legal work has taken him to Russia, Central Asia, Latin America, and Southeast Asia. Mr. Maxwell graduated with High Distinction from the University of Iowa Law School. He was a Note and Comment Editor for the Iowa Law School’s Transnational and Contemporary Problems Journal. He also holds a Bachelor of Arts degree from the University of Northern Iowa, and upon graduation received the Purple and Old Gold Award for Meritorious Scholarship in Russian. He speaks both English and Russian. Mr. Maxwell is authorized by federal law and regulation to represent clients before all U.S. immigration courts and offices worldwide. He is admitted to practice before the Minnesota Supreme Court and the United States District Court for the District of Minnesota. He is also admitted to the Bar of the District of Columbia, in Washington, DC. He can be reached at gmaxwell@borene.com.

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