H-1B Visas

H-1B Visas

The H-1B Visa is a popular option for employers seeking to hire nonimmigrant foreign beneficiaries to work  in “specialty occupations.” A “specialty occupation” requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree, or its equivalent. The H-1B authorizes the temporary employment of qualified foreign nationals thereby helping employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce.

The H-1B visa has an annual numerical limit, or cap, of 85,000 visas each fiscal year.  20,000 visas are reserved for foreign nationals with a U.S. master’s degree or higher, and 6,800 visas are reserved for foreign beneficiaries from Singapore and Chile. Additionally, institutions of higher education (or its affiliated or related nonprofit entities), nonprofit research organizations, or government research organizations are not subject to this numerical cap.  Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. April 1 marks the first day of eligibility for filing H-1B cap-subject petitions, as filings are accepted by U.S. Citizenship and Immigration Services (“USCIS”) six months in advance of the start of the next fiscal year. It is anticipated that the number of H-1B cap subject petition filed will exceed the annual limit for new H-1Bs during the first five business days in April. All H-1B petitions properly received during the first five business days in April will be placed in a random-selection lottery. Those petitions received outside the window or which were improperly filed will be rejected.

The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers. Employers must attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater. For more details, please contact us.

Additional Info:

Frequently Asked Questions Related to Layoffs for H-1Bs and other Foreign Workers

  • The foreign beneficiary on an H–1B status and his or her dependents are considered to be in a valid nonimmigrant status after termination of employment, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period.

    During this period of time they may apply for and be granted a change of employer or change of status, if otherwise eligible.

  • Yes, it is possible. In order to benefit from the portability provisions, the following requirements must be met:

    • Last entry in H-1B status
    • Not be employed since last entry without work authorization
    • File a non-frivolous H-1B  petition
  • Some employers have considered allowing the alien to remain on the payroll and continue receiving regular benefits such as accrued vacation time, and any other payout it deems appropriate. However, such arrangements might conflict with other labor policies and regulations and will require careful consideration by a company and its labor counsel. The Wage and Hour Unit of Department of Labor may find that the employee has been “benched” and order back pay for the alien worker, and find continued payroll responsibilities unless there is a clean break, and the termination is evidenced in writing to the alien worker and to USCIS and the Department of Labor through the withdrawal of the Labor Condition Attestation (“LCA”).

  • The underlying H-1 petition would still be approved but the applicant would have to leave the U.S. and apply for a new H-1 visa outside the U.S.

  • The employer is obligated to pay return transportation back home. If there is severance pay, it can be structured so a portion of it reflects the reasonable costs of a return transportation ticket home for the worker. There is no obligation regarding any other family members. Of course, most employees do not express an interest to return home but wish to seek alternate employment.

  • It depends on what stage of the application has been processed.

    • Labor certification is pending or is approved.  Nothing can be preserved unless the I-140 is approved.
    • The second stage I-140 petition is filed and approved. The priority date is preserved for any subsequent application. One still needs a new labor certification but the filing date of the first labor certification is retained as one’s priority date.  Preservation of the priority date only occurs if the I-140 was approved. Further, If I-140 remains approved for more than 180 days, and unless revoked subsequently for fraud and misrepresentation, the beneficiary can also take advantage of subsequent H-1B extension beyond 6 years under AC21 portability provisions, even though the I-140 petition was from a different employer.
    • The last stage adjustment of status forms were filed and has been pending for 180 days. At that point, the application becomes portable and one can secure new employment in a same or similar field and still be eligible to adjust their status to green card without filing a new immigrant petition.