QUALIFYING
The
H1B is for persons in specialty occupations or certain models,
or people providing a service to the Department of Defense.
Our site will only focus on the first category. The H1B, like
all visas, requires that you have a temporary intent to remain
in the U.S on a temporary basis. However, a person in the U.S.
can apply for a Green Card. One of the steps involved in obtaining
a Green Card (depending on how you file and of course what
you qualify for) is called Labor Certification. If you are
here on an H1 (I use H1 and H1B interchangeably) and receive
approval for Labor Certification that will not automatically
cause an application for an H1 case or extension to be denied.
The reason is that the H1B allows for a ‘dual intent'; you
can simultaneously have the intent of remaining permanently,
as well as temporarily. If
you are planning on working here you will be happy to know
that you do not have to keep a foreign residence to demonstrate
the fact that you are here temporarily.
SPECIALTY
OCCUPATION
The
law defines a specialty occupation as one that requires: 1)
Theoretical and practical application of a body of highly
specialized knowledge and 2)
Attainment of a bachelor's or higher degree in the specific
specialty (or its equivalent) as a minimum for entry into
the occupation in the U.S. Explained,
you need a bachelor's or better. If you do not have a bachelor's
however, you can qualify through your experience; three
years in the field are equivalent to one year of schooling.
Ideally however you will have some training.
1. I have a liberal arts
degree and my employer just wants someone with a degree,
but the job itself doesn't need one; do I qualify?
No.
The job itself must be of the nature that it needs a degree
in order to be properly fulfilled. However if you had a business
degree for example and then went on to work for a firm that
added specialized experience to a general degree, then you
would have something more to work with.
2. I
originally came to the U.S on a J1 and have the 212(e) requirement
(I have to live outside the U.S. for 2 years). Would an approved
H1 allow me to get around that requirement?
No. You will still have to satisfy the 2-year bar.
3. How
do I prove I am only coming to the U.S. for a temporary period?
Do I have to still keep real estate or a job abroad?
No. The fact that
you state it is enough. Of course, your contract of employment
should also evidence the fact that it is a temporary position
you are coming to work at. The types of jobs that qualify include: Accountant, Business Executive,
Computer Programmer, Electronics Specialist, Engineer, Fashion
Designer, General Manager (if the business is of a complex
nature), Graphic Designer, Journalist, Management Consultant,
Pharmacist, Scientist and Researcher, and Technical Publications
Writer.
There are many other jobs that qualify, and a list
is never a limiting factor. Factors
to examine include the obvious, is a degree required to satisfactorily
execute the functions of the job? What are the requirements,
duties and operations of the job on a daily basis? Is theoretical
knowledge necessary? What are the requirements for the job
according to the industry? Is there a highly specialized
body of knowledge the person would be drawing from? What
is the pay? Is there a licensing or membership requirement
to practice in that area?
ATTESTATION = LABOR
CONDITION APPLICATION = LCA
When
you have used our job board (someone else's), located an
employer, and received a job offer, you are ready to start
the case. The employer will most likely refer you to their
lawyer who will begin the paperwork. If they do not have
one, you can find one of your own on our home page and
they can prepare everything for you via e-mail if you like.
The first step is the attestation. The form used is the
ETA 9035 and it is filed with the nearest office of the
Employment and Training Administration (hence ETA form)
of the DOL (Department of Labor). The purpose of
this form is to ascertain the employer is paying you a
fair wage. In other words, people in the same geographical
area working in a position of similar duties will all be
paid the same. Sometimes the employer will pay less than
the ‘prevailing wage'. This will not be accepted unless
the employer can demonstrate why. The prevailing wage must
have been obtained within 90 days of filing the LCA. Your
employer can use SESA (State Employment Security Agency),
Federal prevailing wage laws, or another source such as
a private company. ‘Wages' include anything that is taxable
to you, however it does not include fringe benefits. In
order to file the attestation, your employer will need
a tax I.D. number and also attest to the fact that there
is no strike or lockout taking place. The attestation can be filed for full or part-time employees. If
your position keeps you mobile (ie consultant) then the
attestation must be filed in the office nearest to the
first location in which you will be working. The ETA will be
returned to the lawyer and will be valid for a certain
timeframe, not to exceed 3 years. LCAs are approved within
7 days of filing. Your
family members (spouse and children) will come to this
country as H4s (H2s are workers without degrees, and H3s
are trainees). There
is also an interesting provision in the law that states
if an employer dismisses you before the end of the term
(an H1B is temporary so it must have a fixed term) then
he or she must pay for your airfare back. The government
cannot help you enforce it however as it has been deemed
a contractual term and so you must go to court.
EXHIBITS
While
you are waiting of the employer to make the arrangements, you
may want to assemble some of the many exhibits that will help
you win the case. Your degree, the contract of employment (remember,
only temporary positions qualify for an H1), if your credentials
were obtained abroad you must have a company evaluate them
(not expensive, the lawyer will recommend his or her favorite),
a license if one is required (to perform the job in the state
you work in the U.S.), and any letters of recommendation dealing
with the specialization of your background; photocopies of
all these are accepted. EMPLOYER The
employer can be a person, partnership, contractor, corporation,
LLC, or any organization with a tax ID number.
CHANGES
If there is a new employer, a new petition must be filed. If you
are in the same company but work for a different division,
a new or amended one must be filed, depending on the circumstance.
Likewise, if you move to a different city with the same employer,
the old LCA will no longer be valid as the pay was based on
that geographical region. Any material change will need a new
or amended petition. As our site does not attempt to encourage
you to file your own case, you may wonder why this information
is being included. For lack of a better way of explaining it,
this is your life. You should take an active role, as the consequences
are severe. For example, if you move to a different position
altogether in another city for the same employer you may invalidate
your previous H1. Working there and receiving your checks you
assume that all is well. [1]However, if you are caught
working without a visa (make no mistake, that's what this would
be), you will not only have to leave the country, but could
impede your chances of reentering any time soon. For this reason,
ClearedForLanding will try to provide you with all information
we feel relevant for management of your legal status. You will
be happy to know that if your company changes name or is under
different ownership, you will not have to file anything, as
your position is identical in the same location. Any new or amended petition requires a new LCA.
STEP TWO
The lawyer will
then file the I129, H Supplement, and I129W (part of it
is statistical and part is used if the employer feels he
or she has a waiver available of the $1000 additional filing
fee). The standard filing fee is $110. The
forms are sent in with the required exhibits and filing
fees. Now you wait patiently.
1. I worked for a software firm and then decided to move to another one.
The new one filed for my H1 and the stay I received on the
new one was longer than what I had with my old employer.
Which is the correct date?
The date on your new employer's case will control.
2. I work part time for a
company but another one offered me more hours. Can I work
for both? Do I need two H1s?
You can work for
more than two, but each one must file another H1.
3. I
worked for a consulting firm in L.A. under an H1. I decided
to work for a dot-com for a while and the dot-com (name withheld)
received an H1 for me. Well, I didn't like the long hours
so I went back to the consulting firm where the hours were
long but at least I traveled. Does the consulting firm have
to apply for a new H1?
No. As long as the date on the original H1 has not expired, you
can go back to work for them.
EXTENSIONS
Before
the date on your H1 expires you will want to apply for an extension.
You can receive another H1 for up to 3 years' duration, but
in no case will you receive more than 6 years in total; you
will receive this on a form I797 (a personal favorite..notice
of approval). In order to apply for the extension you will
need the old I797, a letter from your employer explaining why
your extension is required, and the LCA. If the LCA is no longer
valid, you will need a new one before you apply. Beginning
January of 1995, LCA could not be valid for more than 3 years,
so you can count on having to file a new one. You will also
need your I94 card (the white card with your stamp) so always
have it handy (you wouldn't believe how many lawyers' clients
misplace them). If
you are in the United States, you will not have to leave the
country; the extension can be completed by mail. There is a
separate procedure for this and your lawyer can help you with
it (sending a form OF 156 to the Department of State along
with your I94, and other exhibits).
H1
HOLDER Q&A
My H1 has not expired but my job has, when do I have to leave?
Once
your employment ends, your H1 expires and you have to leave.
My
H1 has not expired but my employer ended my employment.
She provided me with 3 months' severance pay. Does that
mean I can remain for those three months?
No. You would still have to leave when your employment ended.
