H-1B Status:
The H-1B nonimmigrant category is utilized to hire qualified foreign workers
on a temporary basis.
1) Eligibility requirements
for H-1B status
The threshold requirements for the H-1B visa are (1) the job must require a
minimum of a bachelor's degree (or its equivalent) in a specialized field, and
(2) the candidate must possess this degree or the equivalent in training and
experience. Most foreign degrees must be translated and evaluated by a third
party educational evaluation service to ensure that they are equivalent to a
U.S. degree.
If the degree is in an unrelated field, the candidate must present complete
transcripts, a detailed resume describing previous employment history, and letters
from previous employers confirming their work experience in the specialized
field. The education and work experience will then need to be evaluated to determine
if they are recognized as equivalent to a U.S. degree in the relevant field.
Generally the USCIS will recognize three years of full-time work experience
in the field for every year of college missing from the specialized degree program.
In other words, if the candidate has no college education, then he or she will
need to possess a minimum of twelve years of full-time related work experience.
H-1B status is initially granted for three years. This may be extended for an
additional three years, including all time spent in either H or L status for
any employer in the U.S. Extensions past six years may be available if an I-140
or I-485 has been filed on the employee's behalf, and either the labor certification
or I-140 was filed more than one year ago OR if the individual has an approved
I-140 but cannot file an adjustment of status application because his or her
priority date is not current.
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2) What steps are involved
in the processing of an H-1B petition?
Processing the H-1B petition involves 2 steps:
- Preparing and filing a Labor Condition Application (LCA) with the Department
of Labor (DOL): the LCA contains four attestations by the employer regarding
the H-1B employment, including that it will pay the H-1B worker the higher
of (1) the prevailing wage for the H-1B position or (2) the "actual wage"
paid to similar workers at the place of employment. The LCA is filed with
the DOL. If the employer has a "blanket" LCA in place for multiple positions
in that job category and location, this step can be omitted.
- Preparing and filing the H-1B petition. The H-1B petition can be filed
with USCIS once the LCA has been certified by the DOL. Processing times
at USCIS for the H-1B petition vary from two to four months.
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3) How soon can I start?
You may start as soon as you have work authorization. Some candidates may already
have temporary work authorization based on student visa (F-1) practical training
and valid Employment Authorization Documents (EAD) issued by the USCIS. Persons
who are covered by the new H-1B portability provision may start working upon
the filing of the new employer's petition. In order to qualify for this provision,
the individual must have been lawfully admitted into the U.S., cannot have worked
without authorization since last entry, and the petition must be filed before
the expiration of the current authorized stay (as set forth on the I-94 card).
Those who do not have an EAD or prior H status may not begin working for the
new employer until the H-1B petition has been approved. Individuals who are
outside the U.S. must apply for an H-1B visa at a U.S. consular post in order
to enter the U.S. in H-1B status.
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4) Extension of H-1B visa
status
Extensions of H-1B visa status should be filed during the six-month period prior
to expiration of current stay. Extensions are generally granted in three-year
increments up to a maximum of six years (cumulative of all stay in H or L status
for any employer). (Criteria for obtaining extensions past six years are noted
in (1) above.) An extension application filed prior to expiration of the current
authorized stay automatically extends work authorization for up to 240 days
while the application is pending. There may be restrictions on international
travel, however, while the extension application is pending.
You should contact your employer's HR department or Kuck Casablanca & Odom, LLC approximately
six months prior to the expiration of your current H-1B status to ensure sufficient
time remains to process an extension.
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5) How long may I stay in
the country on an H-1B visa if I get laid-off?
This is a complex issue with no real "bright line" rule. Contact your HR department
or Kuck Casablanca LLC about this issue. Generally, an individual in H-1B status
whose employment is terminated must either leave the U.S., have a change of
employer H-1B petition filed on his/her behalf, or, if qualified, file an application
for change of status to another visa category. The USCIS informally recognizes
a 30 day window in which to accomplish this, but the better practice is to file
before the current employment ends.
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6) May I switch from one
job site to another, have a change in job responsibilities, be promoted, or
change work groups without going through the whole process again?
If the change in location is outside of your current geographical area (i.e.,
city or metropolitan statistical area), and/or you have a material change in
job responsibilities, including a promotion, an amended H-1B petition may need
to be filed on your behalf. Your manager should contact the HR department or
Kuck Casablanca LLC to discuss potential job changes before they occur.
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7) I have an H-1B visa stamp
with another company's name on it. Don't I have to get a new H-1B visa stamp
that shows my current employer?
Not always. The H-1B visa stamp in your passport may be used despite the change
of employers, so long as the stamp has not expired. You can continue to use
the visa stamp in your passport by showing your current employer's H-1B approval
notice to demonstrate to the Immigration officer that you have authorization
to work for the current employer.
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