H-1B Visas

Often an employer will seek to employ a foreign worker for a temporary period in professional occupations or as a fashion model, or in other occupations requiring advanced skills called "specialty occupations."

Labor Condition Application to US Department of Labor Required

The process begins with the filing of a labor condition application with the United States Department of Labor. The Labor Condition Application is submited to prove that the employer will pay the appropriate wage rate to the foreign worker, that they have notified the appropriate bargaining representative, or otherwise posted notice of their intent to employ foreign workers, and that there is no strike or lockout at the place of employment. Labor condition applications may be approved for periods of up to 3 years, renewable for a total of 6 years, the maximum allowable period of stay in the U.S. under H-1B status.

Employer Petition for Nonimmigrant Worker to BCIS

After receiving Labor Condition Application Approval, the employer may file a Petition for Nonimmigrant Worker with the BCIS. Once approved, the employee may begin working for the employer. H-1B status may be obtained for an employee for a period of up to six years before the employee is required to leave the United States to satisfy a two-year foreign residency requirement. For this reason, many employers will attempt to file employment-based immigrant petitions on behalf of an employee once H-1B status is approved.

H-1B Status versus H-1B Visa

Employers and beneficiarys should keep in mind the distinction between obtaining H-1B Status and an H-1B visa. Frequently, a foreign worker will be granted H-1B Status upon the appropriate Labor Condition Application and Petition to the BCIS by the Employer. This benefit does not by itself convey an H-1B Visa to an employee. After an H-1B beneficiary is approved for a change of status (often times from F-1 or J-1 Visa Status), the employee will want to travel outside of the United States, for which a United States Visa will be required before reentering.

In order to obtain an H-1B Visa, the employee will need to travel outside the United States to a United States consulate and after an interview, may be granted an H-1B Visa. An application for a Nonimmigrant Visa as well as a security clearance for all males between the ages of 16 and 45 is required. Frequently, employees will travel to Canada or Mexico to obtain their H-1B Visa instead of their home country. If, however, the H-1B Visa is denied, the employee may not re-enter the United States and must re-apply for the H-1B Visa from their home country. For this reason, obtaining an experienced immigration lawyer to prepare the Nonimmigrant Visa Application as well as other required documentation and having that immigration present during the interview is highly recommended.

Consequences of Early Termination of an H-1B Employee

Early termination of an H-1B employee requires the employer to pay the employees return travel expenses to their home country. The H-1B employee with few exceptions must leave the United States immediately upon termination because they are considered to be out of status at the time their employment ends.

A common misconception exists that a terminated H-1B employee may remain in the United States if he is able to find employment that is substantially similar to the former employment if undertaken within 10 days. This so-called "ten-day rule" is actually a misinterpretation of the Regulations. Under the Regulations, an issuing post may theoretically issue a new I-94 Departure Record ten days after the terminated H-1B employee's status has ended because of an allowable grace period. Employees should be aware that if terminated from employment, they have three options: (1) have a new employer file a new Petition for Nonimmigrant Worker for H-1B Status; (2) change to another nonimmigrant visa category; or (3) leave the United States. In practice, the Immigration and Naturalization Service has allowed terminated employees 30 days to find a new employer before they are required to leave the United States.

 

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The information you obtain from this site is not, nor is it intended to be legal advice. You should consult an attorney for individual advise regarding your situation. Please read our disclaimer.

Copyright © Jonathan R. Micale, Esq., 2003

 

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