H-1B Temporary Work Status ⋆ Borene Law Firm, P.A.

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 admitted to the U.S., the foreign worker’s I-94 admission stamp indicates the worker’s H-1B employment-authorized immigration status and the expiration date of his or her 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 U.S. or foreign 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 a good 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 temporary work sponsorship 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 most new H-1B workers and a separate quota is available for H-1 workers who have received a U.S. advanced degree (i.e. master’s degree or higher). USCIS uses an H-1B registration lottery system in March to select individuals each year. Employers, with counsel’s assistance, can file an H-1B registration in an online lottery during the March window of time, pay a fee and if the registration is selected, then the employer will have three months, starting April 1, to file the H-1B petition for a position that would begin on October 1. If any of the first round selected registrations do not result in an H-1B approval by the end of June, USCIS will choose second round selections who will have another three month filing period. If the registration quota cap is reached, H-1B’s for new H-1B workers may not be available again until the start of the government’s new fiscal year, which begins October 1. This means the employer could apply again during the H-1B lottery registration in March of the next year, for an H-1B beginning October 1 of that year. There are quota exemptions for employers hiring certain 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.

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 the employee has the required credential or its equivalent. In addition, the employer must agree to pay at least 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 U.S. Citizenship and Immigration Services. Finally, the employer also attests whether an export license is or is not required for the employee if the employee would be exposed to certain knowledge or technology that has a dual civilian/military use or is otherwise covered by export control regulations. 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 H-1B employee candidate must document his or her 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 significant immigration violations or criminal activities, the H-1B status may be delayed or denied. If an H-1B candidate does not have a bachelor’s 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 by the petition, the employee may be found to be 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 for a decision after filing the petition with USCIS is as short as 15 calendar days if the Premium Processing expedite fee is paid. Otherwise it can take several months to obtain a decision. Because each H-1B petition is dependent upon the 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 registration period re-opens 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 times can be increased by several weeks or more 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 long-term 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 that any changes in job duties or location will trigger a call to the employer’s immigration law firm before the change occurs.

12. What government agencies are involved?

The U.S. Department of Labor and 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 an LCA?

An LCA, or Labor Condition Application, is an application submitted to the Department of Labor, after the regulatory notice requirement has been met, wherein the employer makes certain promises to the Department of Labor about worker conditions, terms of employment and the wage to be paid over a period of validity that can span up to 3 years. The Department of Labor has 7 days after submission to decide to certify or deny the LCA. Every H-1B submitted to USCIS must have a certified LCA from the Department of Labor, which is signed by the employer’s representative. Prior to drafting the LCA, first time users of the LCA system must have their Employer Identification Number verified for use in the LCA electronic system. The LCA and all the required LCA compliance paperwork must be maintained by the employer in a public access file.
Drafting an LCA requires significant analysis and preparation to identify the appropriate occupational code and to determine the appropriate wage source as several different regulatory options are potentially acceptable. If the wage source selected is the OFLC Online Wage Library, provided by the Department of Labor, the wage level must be calculated using the Department of Labor guidance provided. Identification of the appropriate occupational code and wage level have an immediate impact on the potential approvability of the H-1B, and also can have longer term legal compliance issues. Accordingly, it is advisable to consult with a knowledgeable immigration attorney and potentially an independent occupation and wage survey expert in connection with drafting your LCA.

14. 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 straightforward 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.

15. 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 before they occur so that the attorney 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 immigration counsel to prepare a visa application form and to prepare for the employee’s interview at the U.S. embassy or consulate abroad.

16. 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 the immigration lawyer 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, Vice President of Administration, COO, or General Counsel.

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

Well-documented H-1B petitions that meet the essential legal requirements are likely to 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.

18. 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. Also, 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 government surveys from the U.S. Department of Labor.

19. Who usually pays the filing fees?

A Department of Labor regulation, effective since January 2001, requires that most employers must pay all of 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.

20. 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 for these legal expenses. There appear to be only very limited exceptions to this rule.

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

Yes. H-1B workers’ family members may apply to 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.

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

Employment authorization for family members is not routinely included in H-4 status. However, it has become possible for certain H-4 spouses, who are married to an H-1B with an approved I-140 petition, to apply for employment authorization. Also, 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.

23. 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 public or private school. No special additional permission is required.

24. 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 before putting the new H-1B employee on the payroll. 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 final approval by USCIS.

25. 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 before the change takes effect. Check with qualified immigration counsel before making any changes.

26. 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.

27. 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.

Also known as H-1B, H1B, H-1, H1, H-4, H4.

*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 2020, 2018 and 2016 Lawyer of the Year in Minnesota in Immigration Law as noted by The Best Lawyers in America. 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 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. 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 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 also a past Chair of the International Business Law Section of the Minnesota State Bar Association and 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. 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. He is also admitted to the Bar of the District of Columbia, in Washington, DC. He can be reached at gmaxwell@borene.com.