Foreign Professionals Working in the USA

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H-1B Temporary Worker Visa
An H-1B nonimmigrant visa may be used to bring a worker temporarily to the United States if the employee will work in a "specialty occupation" or as a fashion model of distinguished merit and ability. A specialty occupation requires theoretical and practical application of a body of specialized knowledge, and the alien must have earned at least a bachelor’s degree or its equivalent in order to be eligible. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are all specialty occupations.

Number of H-1B Visas Available
Current law limits the number of H-1B visas each year to 65,000. Further, legislation enacted in 2004 created an exemption from the cap for the first 20,000 advanced degree graduates who have attained a master’s degree or higher from a U.S. institution of higher learning.
The following employees are considered exempt from the cap without regard to the number of cases that are filed including:
• Individuals employed at higher educational institutions and their related or affiliated non-profit entities;
• Individuals employed by non-profit research organizations or governmental research organizations;
• J-1 nonimmigrant physicians who have received a Conrad waiver of the two year foreign residency requirement based on sponsorship by a state health department; and
• H-1B non-immigrants who have been previously counted toward the cap in the six years prior to the approval of the new petition (unless the individual has been out of the U.S. for one year or more and is seeking to return to the US for a full six years of stay in H status).

How to Apply for an H-1B Visa
H-1B status requires a sponsoring U.S. employer. The employer must have a U.S. taxpayer identification number. Foreign businesses not established in the U.S. cannot use this visa to bring employees here.
The employer must file a Labor Condition Application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The LCA must be prepared and posted in two conspicuous places at the work site.
Once approved, the employer must then file the certified LCA with a Form I-129 petition with the US Citizenship and Immigration Services (USCIS), documenting that the position requires the services of a person in a “specialty occupation”. After receiving USCIS petition approval, the alien may then apply for the H-1B visa, admission, or a change of nonimmigrant status.

How Long is the H-1B Valid?
Under current law, an alien can be in H-1B status for a maximum period of six years at a time. When an alien has reached the six year limit, he or she must then reside outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. An alien may apply for an extension of their H-1B status beyond the allotted six years based on the following:
1. If 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
2. 365 days or more have passed since the filing of an EB immigrant petition, or
3. If the alien is the beneficiary of an approved I-140 petition, or
4. H-1B workers can “recapture” days spent outside the United States (i.e. for vacations, family obligations, business trips) and extend their H status by that same amount of time.

What Are the Employer's Liabilities?
Completing the LCA is just the beginning. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees. Upon request, these records must be provided to DOL's Wage and Hour Division.
If an employer does not document the wage, pay the required wage or maintain the required records, the employer could be liable for substantial penalties including back pay and fines of up to $35,000 per violation. The employer could even lose the right to apply for H-1B visas as well as all other immigrant and nonimmigrant visas for up to three years.
If the employer terminates the services of the employee prior to the expiration of the H-1B visa, the employer is responsible for paying the employee's return transportation to his or her last foreign residence.

What Must a Dependent Employer Do?
A dependent employer is one who has employed more than the minimum allowed H-1B workers determined, by the size of the employer. The dependent employer must comply with the new attestation requirements if it has more than the minimum number of H-1B workers as defined by statute.

What Does the Employee Do?
The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The employee must be able to show that his or her foreign university degree is the equivalent of a U.S. degree by obtaining a credentials evaluation of his or her education.
If the worker is in the U.S. and currently holds a valid nonimmigrant visa status, he or she may apply in the U.S. for the H-1B visa. For example, if he or she is in lawful student status (F-1 visa), the worker may seek a change from F-1 to H-1B. This change only gives the person the ability to work in the U.S. for the sponsoring employer. If the worker needs to travel abroad, he or she will need to apply for an H-1B visa at a U.S. Consulate. Workers not in lawful status in the U.S. or those residing abroad must apply for an H-1B visa at a U.S. Consulate.

What Are the Employee's Liabilities?
Under current law, a person who fails to maintain status, such as engages in unauthorized employment or stays beyond his authorization period, may be required to depart the U.S. and may be eligible to return, depending upon how long such condition existed.

Can the H-1B Employee Bring Family Members to the US?
The H-1B employee's spouse and unmarried children under 21 years old may be granted an H-4 visa. An H-4 visa holder is not permitted to work in the United States. They may, however, attend school.

My legal status is about to expire and I need to file for non-immigrant worker status (H-1B) immediately. What should i do?

Prior to a recent change made by U.S. Citizenship and Immigration Services (USCIS), any person who wanted to file a petition to become a non-immigrant worker (H-1B) was required to have a certified Labor Conditions Application (LCA) from the Department of Labor. It would generally take at least one week for the Department of Labor to certify an LCA. Therefore, someone who had a legal status that was expiring had to wait at least one week before filing an H-1B petition with the USCIS.

However, the USCIS recently introduced a change beginning November 5, 2009 that will allow a 120 day period, during which time they will accept H-1B petitions filed without LCAs that have been certified by the Department of Labor. The recent change allows you to file a new H-1B petition without a certified LCA. Thus, if applying for an H-1B extension you can continue employment, but a new H-1B petition still requires approval before you may start employment.

If you are in need of an H-1B petition, please contact the experienced and knowledgeable staff at Berger & Berger at (716)568-4451 or complete our online contact form to arrange a consultation.