THE H-1B VISA CLASSIFICATION

The H-1B visa classification may be utilized for foreign nationals temporarily employed in the United States in occupations or professions requiring a specific educational background.

This memorandum provides general information about the H-1B visa but it does not provide legal advice. For assistance, individuals seeking the H-1B visa classification and employers seeking to petition the government to obtain the H-1B visa classification on behalf of a particular individual should consult with a competent immigration attorney.

What is the H-1B visa? It permits individuals to come to the U.S. and perform services in a "specialty occupation" which requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's degree or higher in a particular specialization as minimum entry for the occupation in the U.S.

How is the H-1B visa obtained? A four-part process is involved: (1) the employer seeks a determination from the State Workforce Agency in the state of intended employment that the salary offered meets or exceeds the “prevailing wage” for similarly situated workers in the geographical area of the employment, (2) the employer files a Labor Condition Application (LCA), Form ETA 9035, with the U.S. Department of Labor and receives certification of the filing, (3) the employer files Form I-129 Petition for a Nonimmigrant Worker with the U.S. Citizen and Immigration Services (CIS) to classify the individual as a temporary worker in the specialty occupation and (4) the individual either applies for the H-1B visa abroad at a U.S. Consulate or, if physically present in the U.S., applies for a change of visa classification to H-1B or for an extension of stay in that classification.

How long does it take to obtain this visa? It can take up to six months for an individual not currently in the H-1B visa classification, although the time can be significantly reduced by the payment of an additional fee of $1000 for “Premium Processing”.

Is there a quota or limitation on the issuance of H-1B visas? Yes, there is a statutory maximum of 65,000 H-1B visa petitions that can be approved in a federal fiscal year (October 1 to September 30). Of the 65,000, up to 1400 are reserved for Chileans and up to 5400 are reserved for Singaporeans. In addition, there are 20,000 H-1B visas set aside for individuals who have earned a master’s or higher degree from a U.S. institution. Individuals hired by institutions of higher education, non-profit research organizations and government research organizations are exempt from the quota.

What if the individual has held the J-1 visa classification? In certain instances, there may be a bar to changing to the H-1B visa until the individual has been physically present in his or her country of last permanent residence for at least two years.

How long may an individual hold the H-1B visa classification? The H-1B classification may cover an initial period up to three years. It may be extended for up to six years in the aggregate; this includes H-1B employment with all employers in the U.S. In certain circumstances this period can be extended for H-1B visa holders who are in the process of becoming a permanent resident based upon employment. After six years in this classification an individual must be physically outside the U.S. for at least one year before regaining eligibility for the H-1B visa.

Are there any employment restrictions? Yes. The H-1B visa holder may be employed only by the employer whose petition has been filed on behalf of that individual and only in the position and salary described therein. In other words, it is both employer-specific and position-specific. The position may be part-time, as long as the individual does not exceed the hours and salary specified. In the instance of an individual not currently in the H-1B visa classification, the petition must be approved by CIS before the H-1B employment may begin; of course, the employment is only authorized during the dates approved. If an individual already holds the H-1B visa classification, a change in employer or a change in the terms or conditions of employment or a change of position for the same employer requires a new LCA to be certified and a new H-1B petition to be filed before the individual may undertake the new or changed position. If an H-1B visa holder is to work temporarily at a different location than the one specified on the visa petition, there are special regulations governing per diem expenses, posting of notices and a fixed limit on the number of days H-1B visa holders can be placed somewhere other than the original place of intended employment. An H-1B visa holder must be continually employed. Therefore, there can be no gap, including weekends and holidays, between working for different H-1B employers.

May an H-1B visa holder receive honoraria or consulting fees from anyone other than the employer? An H-1B visa holder may receive only transportation and reasonable, incidental living expenses in order to give speeches, lectures, etc., elsewhere, provided that such activities are incidental to the employment as an H-1B visa holder and, provided further, that he or she is not paid a stipend, honorarium or salary and does not derive any monetary or other material gain from these activities.

What about taxes? An H-1B visa holder may be classified as a resident taxpayer for federal income tax purposes after he or she meets the "substantial presence test" for the particular tax year. This enables the individual to take the standard deduction and dependent family exemptions; however, worldwide income must be reported and is subject to taxation. A resident taxpayer is also subject to FICA withholding.

What about dependents? Spouses and dependent minor children are given the H-4 visa classification. In this classification they are not eligible to work in the U.S. under any circumstances. Of course, spouses and dependent children may be eligible for other visa classifications in their own right, such as student (F-1), temporary worker (H-1) or exchange visitor (J-1).

What if the individual may intend to remain permanently in the U.S.? Although the H-1B is a nonimmigrant classification, it permits both the individual and the employer to simultaneously have nonimmigrant and immigrant intentions. This concept of "dual intent" allows an employer to have the intent to hire an alien temporarily and in the future employ him or her permanently if and when eligible for permanent resident status. The individual also may have the intent to assume a temporary status in the U.S. and depart at the end of that period of authorized stay unless he or she has become a permanent resident. This concept also facilitates re-entry to the U.S. if the H-1B visa holder travels abroad after applying for permanent residence.

i:/ls/done/psl/wheel/H-1B.01cond.wpd October 2006