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Our law firm offers a free consultation only to employers or professionals who have already found an employer and are actively seeking an immigration lawyer to represent the employer in filing an H-1B petition. For all others, we charge a consultation fee of $150.00 for up to 30 minutes of attorney time.
You
may call our office at 904-779-0111 to
schedule an interview, or email the
Attorney at ashwin@immigrationfirm.net
Attorney Ashwin Sharma practices U.S. Immigration law and is licensed in Florida. Because U.S. Immigration Law is federal in nature, Attorney Sharma may represent H-1B clients located throughout the United States. Our law firm has represented a diverse corporate clientele consisting of start-ups, medium sized and billion dollar organizations and systems.
Our law firm has prepared hundreds of H-1B petitions for different types of professionals including, but not limited to Engineers (AI/RF/Civil/Electrical/Mechanical/Structural/Civil/Chemical/Sales/Software/Network), Business Analysts, MBAs, Computer Programmers, Programmer Analysts, Computer Systems Analysts, Database Administrators, Project Managers, Psychologists, PG Research Fellows, University Professors, Medical Doctors and Residents, Marketing Analysts, Journalists, Directors & Managers, Cost Estimators, Construction Managers, Executives and Scientists.
It is important when filing an H-1B petition to research background details including an H-1B employer's financial strength, job duties and title, salary and prevailing wage issues, timing of start date, evidence of the employer-employee relationship, beneficiary's educational details/degree award dates/F-1 OPT validity periods, previous visa denials and potential consular processing issues.
For H-1B cases involving third party job-site placements, it is also crucial to examine the existence and wording of end-client and/or vendor MSA/SOW/PO contracts as well as evidence of the extent of the employer's control over the proposed H-1B Beneficiary's work. This will help determine whether the petition will be able to overcome "Right to Control"/Neufeld Memo issues and any potential Requests for Evidence (RFEs) involving the same.
Remember: the hiring of a lawyer is an important decision that should not be based solely upon advertisements, certification, specialization, or self-proclaimed expertise. Before you decide, ask us to send you free information about our qualifications and experience.
General Points
1. The
H-1B is a temporary nonimmigrant
visa which grants holder up to six
years within the U.S. An individual
must leave the country after six
total years in H or L status. There
are exceptions including those
individuals who have a labor
certification pending
for more than 365 days, I-140
approved, or those who
change their status to H-4 (they may
remain for as long as their spouse
is on H-1B - spouse is also subject
to the 6 year maximum).
Periods outside of the US may be
reclaimed in Requests for an
Extension.
2. Applicant
must have experience or education
(four year baccalaureate degree or
equivalent) in
a specialty occupation.
3. A
U.S. sponsor is required to petition
for an H-1B worker. The sponsor
must comply with prevailing wage
levels, agree not to displace
American workers, agree not to
replace a laid-off worker with an
H-1B for a certain period of time,
and agree not to employ the H-1B
during a strike or lock-out, among
other attestations.
4. The
spouse or dependent child of an H-1B
worker may accompany or follow to
join the principle visa holder.
These H-4 visa holders may attend
school but cannot work.
5. An
H-1B visa holder may change their
status to any other nonimmigrant
status they are eligible for.
6. An
H-1B visa holder may transfer
employers easily under the H-1B
Portability Act. They may
begin working for the new employer
as soon as the new H-1B Transfer
petition is submitted to USCIS.
7. An
H-1B visa holder may petition for
Permanent Residency (a green card)
because of the dual-intent nature of
the visa. An H-1B may enter and
exit the U.S. at any time, even
after a Permanent Residency petition
has been filed.
8. Roughly
65,000 visas are available per
fiscal year. No more new H-1B visas
will be issued until October 1,
2006, unless you are quota exempt
(Please see quota exempt H-1B
section below). An individual or sponsor may
petition up to six months in advance
of a new H-1B start date (April 1,
2006). These visas are used up very
quickly. If an individual qualifies
for an E-3 or TN visa, it may be a
better decision to enter on those
visas and later, if necessary,
change status to H-1B.
9.
An employee may hold up
to two H-1B concurrent visas for two different
employers.
A U.S. sponsor with a U.S. Tax ID number
may petition for an H-1B professional
worker if the sponsor has available a
specialty position (See selection on
specialty occupations below) as defined
under INA §214(i)(1), 8 U.S.C.
§1184(i)(1), 8 C.F.R. §214.2(h)(4)(ii),
requiring the:
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 United
States.
This degree requirement, or its
equivalent, must be common to the
industry in parallel positions among
similar organizations. The sponsor must
agree to and abide by H-1B and LCA
attestations regarding the employment of
an H-1B Non-Immigrant Worker, including,
but not limited to:
1. The employer must agree to pay the
‘prevailing wage’ – the actual wage
level paid by the employer to all
other individuals with similar
experience and qualifications for
the specific employment in question,
or the prevailing wage level for the
occupational classification in the
area of employment. (Effective
March 8, 2005, the employer is
required to pay 100 percent of the
prevailing wage.)
2. Providing working conditions for the
applicant that will not adversely
affect other workers similarly
employed.
3. Attesting that there is no strike or
lockout in occupational
classification at the place of
employment.
4. Attesting that it has provided
notice of the filing to the
bargaining representative (if any)
of the employer's employees in the
occupational classification and area
for which aliens are sought, or if
there is no such bargaining
representative, has provided notice
of filing in occupational
classification through such methods
as physical posting in conspicuous
locations at the place of employment
or electronic notification to
employees in the occupational
classification for which H-1B
nonimmigrants are sought. (See
selection on public disclosure
record below)
If an employer is H-1B dependent *, or has been found to be
a willful violator ** of H-1B laws,
it must also make further
attestations. Employers subject to
these attestations must also retain
documentation of these additional
conditions in the public access
file. The following additional
attestations need not be made by
H-1B dependent or willful violator
U.S. employers if the employee is
exempt ***.
1. That there will be no displacement
of protected U.S. workers - defined
as employees who are citizens,
nationals, permanent residents,
refugees, asylees, or immigrants
otherwise authorized by the INA or
by the Attorney General to be
employed. The employer may not have
displaced protected workers for a
period from 90 days prior to filing
the LCA to 90 days after filing the
visa petition.
2. Must have conducted prior
recruitment.
* An H-1B dependent employer is defined as an employer who
has 25 or less full-time equivalent
employees and more than 7 H-1B
employees, or 26-50 full-time
equivalent employees and more than
12 H-1B employees, or at least 51
full-time equivalent employees and
at least 15 percent H-1B employees.
** A willful violator is an employer who has been found to
commit a willful failure or
misrepresentation in LCA compliance
in the previous five years. However,
it is important to remember that
even if an employer is a willful
violator, it is not required to make
the above attestations on an LCA for
an exempt H-1B employee.
*** An exempt H-1B applicant is one who:
1. Receives annual wages including cash
bonuses and similar compensation of
$60,000 or more and/or
2. An individual who has attained a
master’s degree or higher (or its
equivalent) in a specialty related
to the intended employment.
Sanctions against H-1B Sponsors Who Violate Laws
It is extremely important to utilize the services of an
Immigration Attorney when filing an
H-1B. Small errors and oversights
can subject an employer to a
multitude of sanctions and legal
woes. Our law firm works actively
with our clients to ensure the
maximum amount of protection from
such penalties. In
addition to the fines and penalties
discussed below, willful violators
may be randomly investigated by the USCIS for a period of five years.
1. $1,000 fine and one-year prohibition
from filing immigrant and
nonimmigrant visa petitions for
failure to meet strike or layoff
attestation; substantial failure to
meet working-condition attestation
or displacement attestation, posting
or recruitment attestations, or
misrepresentation of material fact
in the LCA;
2. $5,000 fine and two-year prohibition
from filing immigrant and
nonimmigrant petitions for willful
failure to meet any attestation, or
willful misrepresentation of
material fact in the LCA; and
3. $35,000 fine and three-year
prohibition for willful failure to
meet an attestation condition, or
willful misrepresentation of a
material fact in an LCA, in the
course of which failure or
misrepresentation, a U.S. worker is
displaced during the period
commencing 90 days before filing the
application and ending 90 days after
filing the H-1B visa petition.
4. $5,000 and prohibition from filing
petitions for two years for
retaliation against employees who
are ‘whistle blowers’. The whistle
blower provision covers employees,
former employees, and applicants who
disclose information to the employer
or to “any other person” that the
“employee reasonably believes
evidences” is a violation of INA
§212(n). Also protected by the
whistle blower provision are
employees, former employees, and
applicants who cooperate or seek to
cooperate in a proceeding or
investigation concerning the
employer’s compliance with INA
§212(n). The employer violates the
whistle blower provision by
intimidating, threatening,
restraining, coercing, blacklisting,
discharging, or in any other manner
discriminating against a whistle
blower.
5. The ACWIA allows an H-1B
nonimmigrant whistle blower to
continue to work in the U.S.
following retaliation by the
employer.
6. $1,000 penalty for requiring an H-1B
nonimmigrant to pay a penalty to the
employer for leaving the job prior
to a contracted date. Employer may
also be required to return the
amount paid to the H-1B nonimmigrant
unless the amount is purely
liquidated damages.
7. Penalty for benching an H-1B. An
employer is in violation of the LCA
requirement at INA §212(n)(1)(A) for
placing an H-1B nonimmigrant in
unpaid nonproductive status due to a
decision by the employer “based upon
factors such as lack of work,” or
due to the H-1B nonimmigrant’s lack
of a permit or license. A violation
will be found for failure to pay
full-time wages to a full-time
employee, failure to pay a part-time
employee the part-time rate
identified in the visa petition,
failure to pay a new H-1B employee
within 30 days of admission, or
failure to pay a new H-1B
nonimmigrant already present in the
United States within 60 days of the
date the nonimmigrant becomes
eligible to work for the employer.
The prohibition against unpaid
nonproductive status does not apply
to nonproductive time due to
non-work related factors such as a
voluntary request by the
nonimmigrant for an absence like
maternity leave or circumstances
rendering the nonimmigrant unable to
work. The prohibition against unpaid
bench time also does not preclude a
“school or other educational
institution” from paying an annual
salary over fewer than 12 months if
it is an established practice and
the beneficiary agrees to it.
8. $1,000 penalty per violation and one
year’s disbarment from filing H-1B
visas, or $5,000 per willful
violation and two years disbarment
for an employer’s failure to offer a
job to a qualified U.S. worker or
misrepresenting the attestation as
required by INA §212(n)(1)(G).
9. If an H-1B nonimmigrant
is dismissed before the end of the
period of authorized stay, the
employer is liable for the costs of
return transportation to the
beneficiary’s foreign residence. Any
dismissal is covered, including one
for cause. The exception is when the
beneficiary voluntarily terminates
employment. In addition, the
employer is now required to withdraw
the H-1B petition to ensure that it
is no longer obligated to pay the
required wage for the employee who
has been terminated.
Temporary Nature Of Job
The H-1B position should be temporary in
nature and cannot initially exceed three
years in length. However, a subsequent
H-1B extension of an additional time
(again, not exceeding three years) may
be requested for a total of six years,
at which time the H-1B visa holder
should exit the country for at least one
year unless the individual has filed a
labor certification which was approved
or pending for more than 365 days. An
exception also applies to an individual
who has changed his or her status from
H-1B to H-4 may remain in H-4 status as
long as their spouse has a valid H-1B.
Finally, the beneficiary of an H-1B
petition may recapture all periods of
time he or she has spent outside the
U.S. For example, if an individual
spent eight months out of the total six
years outside of the U.S., he or she may
petition for and recapture the
eight months. There is no
limitation on individuals remain in the
U.S. for six months a year or less, or
those who commute to the U.S. to work.
Public Disclosure Record
The H-1B employer must allow public
examination of a copy of the H-1B
candidate’s LCA and other necessary
supporting documentation regarding the
H-1B worker and other similarly situated
employees. Specifically, the employer
must create and maintain a public access
file to document compliance in each H-1B
case. This public disclosure record must
include:
1. Copy
of the LCA (with employer’s original
signature and cover pages);
2. Documentation
of the wage to be paid to the H-1B
employee (offer letter or other);
3. Explanation
of the system used to set the actual
wage;
4. Copy
of prevailing wage determination
from SWA or description of survey or
other source used;
5. Copy
of notice to union (if applicable)
or postings; and
6.
Summary of benefits plan offered to
the H-1B employee showing that it is
the same as that offered to
similarly employed U.S. workers (and
H-1B employee’s elections, if any).
7. Document
to be added to the file on or before
H-1B employee’s first day of work:
8. Copy
of certified LCA with signature of
H-1B employee as proof he or she
received copy.
9. Documents that may need to be added
in the future:
10.
Documentation regarding any
adjustment to the wage (e.g., annual
raise or cost of living increase);
and
11.
Where the employing entity undergoes
a non-disruptive change in its legal
structure, and does not choose to
file amended petitions for each H-1B
worker it acquires, a sworn
statement from the new employer that
it accepts all obligations under the
LCAs filed by the predecessor
employer and a list of the affected
LCAs.
12.
Where the employer uses the
definition of a single employer to
determine H-1B dependency, a list of
entities included.
13.
Where an employer is H-1B dependent
or a willful violator, evidence of
recruitment of U.S. workers.
14.
Where an employer is H-1B dependent
or a willful violator, but indicates
that the LCA is for “exempt”
nonimmigrants, a list of the
“exempt” employees. (See below for a
discussion of exempt H-1Bs.)
Specialty Occupation
The H-1B applicant must be coming to America to fill a
‘specialty occupation’, that is, an
occupation that requires theoretical
and practical application of a body
of knowledge in professional fields
and at least the attainment of a
bachelor's degree, or its
equivalent, as a minimum for entry
into the occupation in the United
States.
“Specialty occupation” is defined as “an occupation that
requires (a) theoretical and
practical application of a body of
highly specialized knowledge, and
(b) 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 United States.”
Under USCIS regulations, one or more of the following
criteria must be met before a job
can be considered a specialty
occupation:
1. A
bachelor’s or higher degree or its
equivalent is normally the minimum
entry requirement for the position;
2. The
degree requirement is common to the
industry or, in the alternative, the
position is so complex or unique
that it can be performed only by an
individual with a degree;
3. The employer normally requires a
degree or its equivalent for the
position; or
4. The
nature of the specific duties is so
specialized and complex that the
knowledge required to perform the
duties is usually associated with
the attainment of a bachelor’s or
higher degree.
A U.S. bachelor’s or higher degree (or its foreign
equivalent) should be held in the
specific specialty or a related
field. Furthermore, a general arts
degree or a generic business
administration degree without
further specialization or experience
may be heavily scrutinized by the
USCIS.
Qualifying for the Specialty Occupation
The visa applicant should have the following:
1. Full state licensure, if required
for practice in the specialty
field. For example: many
pharmacists and all nurses are
required to have a state license to
practice, however, where the only
bar to obtaining a license is the
fact that the beneficiary lacks a
social security card, USCIS should
grant the petition for a one-year
period. Finally, it must be
understood that a license
requirement does not necessarily
prove that the position in question
is a specialty occupation;
2. Completion of a U.S. bachelor’s or
higher degree (or its foreign
equivalent) in the specific
specialty or a related field; or
3. Education, training, or experience
in the specialty occupation
equivalent to the completion of such
degree.
College or University Degree Requirement
The type and level of degree required for the specialty
occupation is dependent on the
particular specialty occupation.
Some positions may require an
advanced degree as a minimum entry
requirement. For other occupations,
such as entry level Computer Systems
Analysts, a bachelor’s degree will
suffice. If the applicant’s
education has not been completed in
the States, a foreign degree
evaluation should be completed to
determine whether the foreign degree
is equivalent to a U.S. degree.
These evaluations should be
completed by accredited agencies and
can be found quite easily on the
internet.
Often times, there may be an assortment of related
disciplines acceptable for entry
into a given specialty. For example,
a Computer Systems Analyst position
may require a degree in computer
science, engineering, math, or a
related field.
Work Experience in Lieu of Education
An applicant may substitute prior work experience in a
specialty occupation for part of, or
in some instances, the entirety of
the requisite education. However,
work experience alone will not
wholly substitute for a Master’s
degree or higher. This experience
must be in “progressively
responsible positions relating to
the specialty.” Evidence of
qualifying experience, according to
the House committee, can include
“letters from peers and special
honors recognition, or authorship of
textbooks.” An applicant can also
evidence this work experience
through an evaluation conducted by a
college or accredited agency. USCIS
may also determine equivalency
through application of the
“three-for-one” rule, by which three
years of specialized training and/or
work experience may be substituted
for each year of college-level
education that the beneficiary
lacks.
Quota Exempt H-1B's
Only 65,000 foreign nationals per
year can be issued visas or given
status in H-1B classification.
For FY2005, the 65,000 H-1B cap was
reached on August 10, 2005.
This resulted in a great deal of
hardship to both employers and H-1B
candidates who did not qualify for
the additional 20,000 H-1B's set
aside each year for holders of U.S.
Masters Degrees or higher. In
addition, certain H-1B employees are
exempt from the H-1B quota cap. The
numerical limitations do not apply
to:
1.
H-1B workers employed by
institutions of higher education as
defined by the Higher Education Act
of 1965, or
2.
A related or affiliated nonprofit
organization (a university
affiliated teaching hospital, for
example).
3.
A nonprofit organization primarily
engaged in applied or basic
research; or
4.
A governmental research
organization.
The cap also does not apply to H-1B
extensions of status with the same
company, a petition for a second
H-1B, transfers from one H-1B
employer to another H-1B employer.
The cap does apply, however, to an
H-1B transfer applicant who was
previously working in a quota exempt
H-1B position (e.g. for a government
research organization) and now
wishes to transfer to a for-profit
cap-subject organization.
A
recent memo issued by the USCIS
broadened H-1B Quota Exempt issuance
to certain for profit H-1B
employers, if the H-1B beneficiary
is proposed to be placed
"AT" an eligible exempt
location and if the employment and
the H-1B employer/Exempt Client
relationship meets certain
conditions. This type of
exemption is useful for
Beneficiaries who are proposed to be
geographically placed at a quota exempt
institution and supporting the
exempt institutions "main
mission" for a majority of
their time, even
if still technically working for a
quota-subject (for-profit)
petitioning employer; ex)
Hospitalists, or perhaps Software
Engineers working on E-Solutions for
and at Hospitals, Government
Research Organizations or
Universities.
Travel (with prior visa) and H-1B
portability
The
legacy INS Memorandum from Michael
A. Pearson, Executive Assoc. Comm’r,
Office of Field Operations (Jan. 29,
2001) gives details regarding when
an H-1B holder who transferred to a
new company is able to travel while
awaiting the new H-1B adjudication.
The
letter states that an H-1B
beneficiary is admissible at a port
of entry even if he or she is no
longer working for the original
petitioner, provided that the
following conditions are met:
1. The
applicant is otherwise admissible;
2. The
applicant, unless exempt under 8 CFR
§212.1, §1212.1, is in possession of
a valid, unexpired passport and visa
(including a valid, unexpired visa
endorsed with the name of the
original petitioner);
3. The
applicant establishes to the
satisfaction of the inspecting
officer that he or she was
previously admitted as an H-1B or
otherwise accorded H-1B status. If a
visa exempt applicant is not in
possession of the previously issued
Form I-94, Arrival/Departure Record,
or a copy of the previously issued
I-94, the applicant may present a
copy of the Form I-797, Notice of
Action, with the original petition’s
validity dates; and
4. The
applicant presents evidence that the
new petition was filed timely with
the Service Center, in the form of a
dated filing receipt, Form I-797, or
other credible evidence of timely
filing. In order to be a timely
filing, the petition must have been
filed prior to the expiration of the
H-1B’s previous period of admission.
The burden of proof is on the
applicant to show that he or she is
admissible as an H-1B and eligible
for visa portability provisions
described in AC21.
Consular Processing For H-1B Visa Holders
Whether attempting to enter the U.S.
with an approved H-1B in hand or
exiting the U.S. and re-entering for
a subsequent H-1B approval, an
employee will have to visit a U.S.
Consulate abroad. This
is often a stressful scenario. A
meeting should be arranged between
the employer, employee and the attorney
to discuss important issues and go
over the procedure. Below is
a list of documentation required by
the U.S. Consulate in Chennai,
India, one of the most rigorous
Consulates in the world. No matter
where you are getting stamped, it is
important to gather as much
documentation on this list as
possible prior to attending your
appointment.
For H-1B Visas
1. Original notice of approval (I-797),
the H-1B petition along with an
attorney-authenticated copy of the
petition, the LCA and other
supporting documents;
2. The originals of the applicant’s
university degree certificate and
mark sheets;
3. Letter from petitioning employer
confirming employer’s intent to hire
the applicant;
4. Originals of the applicant’s work
experience letters;
5. Pay slips from current or most
recent place of employment;
6. Current telephone numbers of the
personnel managers at the
applicant’s present and past jobs;
7. Provide written directions,
utilizing common names and landmarks
to the applicant’s present and past
jobs;
8. Photographs of the inside and
outside of the applicant’s current
or most recent place of work;
9. Names and contact information of two
co-workers from past jobs;
10.
A complete resume (bio-data) and
cover letter describing current job
duties in detail;
11.
Personal bank records for the last
six months;
12.
U.S. company information:
photographs of the inside and
outside of the company’s offices,
prospectus, brochures, and annual
report;
13.
If the applicant is current working
in the United States on an H-1B
visa, also submit pay slips for the
current calendar year and federal
tax returns (IRS Form 1040 and W-2)
for all years in which the applicant
was employed in the United States;
and
14.
A complete set of photocopies of the
above listed documents. The
application will not be accepted
without the originals and
photocopies.
For H-4 Visas
1. Birth records of children;
2. Marriage registration certificate;
3. Original I-797 Notice of Approval;
4. Copy of principal’s H-1B petition,
LCA and supporting documents;
5. Wedding invitation and wedding
photos;
6. All 36 pages of the principal
applicant’s passport (if not
applying with principal applicant).
If a copy of the passport is
submitted, it should be a GOOD copy
and the photo must be clearly
identifiable;
7. A letter from the H-1B company
confirming the continued employment
of the applicant’s spouse;
8. Copy of the principal applicant’s
work experience letters;
9. Copy of the principal applicant’s
offer of employment with the U.S.
company; and
10.
If the principal applicant is
currently working in the United
States on a H-1B visa, then submit
pay slips for the current calendar
year and federal tax returns (IRS
Form 1040 and W-2s) for all the
years in which he or she has been
employed in the United States on the
H-1B visa.
Please see our blog at
www.ashwinsharma.com for more
information about the H-1B Visa
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