1. What is H1B petition?

It is a nonimmigrant petition filed by U.S. employer for an alien employee to work under specialty occupations for a temporary period of time.

2. Can an alien worker file H-1B for himself? 

No. The sponsoring employer, generally a company or organization in the US, has to file the H1B with USCIS. And the alien worker will be the beneficiary.

3. What jobs are considered as "Specialty Occupations"?

Jobs that require (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 U.S. Such as: Civil Engineer, Accountant, Computer Programmer etc.

4. Can I apply for a future employee who has only a foreign bachelor's degree?

Yes, so long as it could be evaluated to an equivalent U.S. bachelor's degree.

5. Except for the requirement of Bachelor's degree, what are the other prerequisites for filing H1B?

In order to file an H-1B, it has to meet the following requirements:
1) the position requires at least a bachelor's degree;
2) the alien worker's education and experience are coincident with the position's requirement;
3) the salary offered is equal to or higher than the prevailing wage;
4) the company needs to hire this H-1B alien due to business needs;
5) the company has the financial ability to pay the salary.

6. What is the prevailing wage?

The prevailing wage is the wage rate set for the occupational classification in the geographical area of employment by:
1) A union contract which contains a wage rate applicable to the occupation;
2) For an occupation not covered by a union contract, the weighted average of wages paid to similarly employed workers (i.e., workers having substantially comparable jobs in the occupational classification) in the geographical area of employment.

7. Can I apply for a future employee who is still abroad?

Yes. Upon the H1B approval, the employee will go through consular processing to apply for a H1B visa with the U.S. embassy/consulate abroad before entering into the U.S.

8. Can I apply for a future employee who will work part-time? And if so, what are the minimum number of hours does he have to work?

Yes you can apply a part-time H1B for him, as long as the work hours are at least 50% of the normal full time hours in your industry and the future employee satisfies all other requirements for an H-1B. If the future employee is an H-1B holder already, you can apply a concurrent H-1B (part time job) on his behalf. In this situation, there is no set number of hours that your future employee must work for you.

9. Is the size of the company a factor in H-1B petition?

No, the size of the company sponsoring H-1B is not a factor. Rather, it is whether the employer has a real business need for the intended H1B position and whether it is financially able to pay the H1B worker the prevailing wage.

10. Is the company required to meet certain profit levels in order to be eligible to sponsor an H-1B petition?

No, the company does not need to be profitable in order to sponsor H-1B petitions so long as they have the cash to pay the prevailing wage.

11. What are the filing fees required to be paid by H1B employer?

o Filing Fee. $325. 
o ACWIA Fee. The American Competitiveness and Workforce Improvement Act (ACWIA) fee for H1-B petitions is $1,500. But for Petitioners who employ a total of no more than 25 full-time equivalent employees in the United States, including any affiliate or subsidiary, may submit a reduced ACWIA fee of $750.
o Fraud Prevention and Detection Fee. The H1-B Visa reform Act establishes a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary's initial grant of H1-B or L nonimmigrant classification or those petitioners seeking to change a beneficiary's employer within these classifications.

12.  Are there any exemptions from the ACWIA fee?

Yes. A U.S. employer is exempt from payment of the additional $1,500.00 or $750.00filing fee if:

• The employer is an institution of higher education as defined in the Higher Education Act of 1965, or
• The employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education. Such a nonprofit organization or entity includes but is not limited to hospitals and medical research institutions
• The employer is a nonprofit research organization or governmental research organization that is primarily engaged in basic research and/or applied research.

13. As an H-1B employer, what records do I need to maintain for the alien workers?

The following records need to be kept by the H1B employer and made available to the Wage and Hour Division of Department of Labor upon request:

• Name, address, occupation, and social security number for the H1B workers.
• Rate of pay, hours worked, gross pay, deductions and net pay for all H1B workers and any other worker employed in the same occupation and place of employment.
• Benefit plans offered and provided.
• LCA (Form ETA9035)
• Prevailing wage rate and its source
• A copy of the Job Notice and documentation evidence that the notice posting requirements were satisfied.

14. Must an H1B employer recruit U.S. workers before seeking H1B workers?

The H1B employer is not required to recruit U.S. workers, unless it is H1B dependent or is a previous willful violator of H1B requirements.

15. What is an H1B dependent employer?

An "H-1B dependent employer" means an employer that:
1) Has 25 or fewer full-time equivalent employees who are employed in the United States and employs more than seven H-1B non-immigrants;
2) Has at least 26 but not more than 50 full-time equivalent employees who are employed in the United States and employs more than 12 H-1B non-immigrants;
3) Has at least 51 full-time equivalent employees who are employed in the United States and employs H-1Bnonimmigrant in a number that is equal to at least 15percent of the number of such full-time equivalent employees.

16. What is a H1B willful violator?

A willful violator is an employer whom the Secretary of Labor has found, after notice and opportunity for a hearing, to have willfully failed to meet a condition of the labor condition application described in section 212(n) of the Immigration and Nationality Act.

17. What additional records must H1B dependent employer or willful violator keep in public access file?

1) List of "exempt" H1B workers, and
2) Summary of recruitment methods, if employer hired any "non-exempt" H1B worker.

18. What is an "exempt" H1B worker?

An "exempt H-1Bnonimmigrant" means an H-1B who:
Receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least$60,000; or
Has attained a master's degree or higher (or its equivalent) in a specialty related to the intended employment.

19. What is H1B Quota? Which kind of H1B application is not subject to the "Quota"?

The H1B quota is a numerical limit allocated for H1B visas each fiscal year. The number of quota for FY2009 is 65,000 and additional 20,000 for applicants with U.S. master's or higher degree. However, the cap was often hit on the first day of application.

Companies or organizations exempt from ACWIA fee as listed before could file H1B applications not subject to the quota limit.

20. When can I start applying H1B for an alien worker with USCIS?

Due to the limit of quota, if the alien worker has never hold H1B visa before, the first day you can submit the application is April 1st of each year.

If your alien worker has hold H1B status before (subject to Quota), you can submit an H1B transfer application on his behalf any time.

21. My company is a non-profit research organization, when can I submit H1B application for the alien worker?

If your company is a non-profit research organization not subject to the limit of quota, then the company could apply H1B for the alien worker any time.

22. What happens if USICS receives more than 65,000 H1B applications on the first day(or few days) of application?

According to the practice of 2008, USCIS conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for FY 2009 would continue to full adjudication. USCIS conducted two random selections, first on petitions qualifying for the 20,000 "master's or higher degree" (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

23. What happens if the application was not selected to receive an H-1B visa number?

The application together with the filing fee checks and supporting documents will be returned to the petitioner or the attorney. While the H1B applicant has to wait till next year for a new application subject to quota.

24. Can a company file more than one H1B application for the same alien worker?

In the practice of 2008, USCIS does not allow a company to file more than one application for the same alien worker.

25. Can a company file for multiple workers on a single LCA?

Yes. For the single occupation listed on the LCA, the employer may seek certification for multiple H1B workers.
 
26. Can a company list multiple locations on a single LCA?

On its LCA for a single occupation, the employer may list multiple locations where the H1B worker will be employed. In fact, multiple locations must be listed if the employer knows that the alien will work in more than one location at the time of filing.

27. How long does it take to get the H1B approved?

It usually takes around six months to get the H1B approved. However, the alien worker or the sponsoring employer may request for a premium process. The premium process will ensure the case processed within 15 calendar days. Otherwise, the $1,000 premium processing fee will be refund.

28. Does the employer have to pay the filing fee for the Premium Processing?

No, the employer is not required to pay the $1000 fee (Now $1225), which means either the employee or the employer could pay it.
 
29. Upon approval, how long would the H1B visa be valid?

Based on each case, USCIS will grant a validity period for no more than three years at one time. The validity period will be listed on the I-797 Notice of Action I-129 Approval Notice.

In general, there is a six-year limit on the maximum years that the alien workers could hold H1B status. However, if the employer filed PERM Labor Certification application or I-140 Immigrant Petition for the alien employee, he could apply for H1B extension beyond the six-year limit.

30. How shall I extend the H1B visa for the alien worker? And when shall I file it?

The procedures and requirements for H1B extension will be largely the same as the initial filing. The application should be submitted to USCIS no later than the date of H1B expiration. While the earliest filing date is six-months before the expiration date.

31. Could the alien worker still work for the company when his H1B extension petition is pending while the original H1B expired already?

Yes, if the extension petition was timely filed, the H1B worker could continue to work for the same employer 240 days beyond expiration while extension petition pending.

32. Our company has gone through some company change. As the employer, do I need to file an H1B amendment for the H1B worker?

A new or amended petition is NOT needed when: a. Employer changes its name or b. Employer changes ownership/ a successor-in-interest, unless a new LCA must be filed.

33. Our company has gone through some company change. Do I need to file a new LCA for the H1B workers?

No. The successor-in-interest generally needs not file a new LCA provided that it agrees to assume the predecessor's obligations and liabilities under the existing LCA.

34. In the event of corporate change, what does the employer need to keep in public access file?
The employer needs to keep:

• sworn or notarized statement by successor company accepting all liabilities of the predecessor company;
• list of H1B workers transferred to the successor company;
• each affected LCA number and effective date;
• a description of successor company's actual wage system;
• successor company's Federal ID number.

35. Our company just moved from A to B. Do I need to file the amendment for H1B worker?

The H1B amendment is NOT required simply on the basis of a geographic move as long as the LCA has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligations are satisfied.

36. Do I need to apply for an H1B amendment when the company gives him a promotion?

A promotion to a higher position within the same occupation would not normally require filing an amended petition provided the H1B worker must utilize the same academic training.

37. Under what circumstances an H1B amendment has to be filed with USCIS?

A new or amended petition must be filed where:
1) Place of employment is changed if it is not covered by the LCA;
2) Change of person's duties from one specialty occupation to another;
3) Material change in the terms and conditions of employment;
4) A new LCA must be filed pursuant to Dept of Labor regulations.

38. When a H1B worker voluntarily leaves the company, what does the employer need to do?

Once the employment is terminated, the employer is required to notify USCIS by sending a letter to withdraw the H1B application.

39. After the termination of the employment, are there any other obligations to be fulfilled by the H1B employer?

If employer dismisses H1B employee including lay-off, it must pay reasonable costs of transportation home.

40. After the termination of the employment, how long could the H1B worker stay in the U.S?

If he does not have any other legal status other than the H1B with this company, the alien has to leave immediately. There is no "grace period" for a terminated H1B worker.

41. Under extreme circumstances, can I bench a full time or part time H1B worker?

No.

42. Is H1B worker eligible to take maternal leave?

Yes. Leave under the Family and Medical Leave Act does not terminate the H1B relationship with the employer.

43.  An H-1B worker of our company switches to another company for several months, can he comes back to work for us again under H1B status?

Yes. As long as his original H1B petition with your company remains valid.

44. I would like to hire an alien worker, who is currently in H1B status with another company. What do I need to do?

If his current H1B is subject to quota, you could file an H1B transfer application for him right now.
If his current H1B is not subject to quota and he has never hold an H1B visa subject to quota, you need to wait till April 1st to file an H1B application for him.

45. Is such an H1B transfer application subject to the Quota?

No.

46. After the company submits the H1B transfer application, when could the alien worker starts the job?

Once the application is properly filed with USCIS, the alien could immediately start to work if he is eligible for H1B portability provisions. Otherwise, he has to wait till the transfer application gets approved.

47. What is H1B Portability?

A nonimmigrant who was previously issued an H-1B visa or provided H-1B nonimmigrant status may begin working for a new H-1B employer as soon as that new employer filed a "nonfrivolous" H-1B petition on the nonimmigrant's behalf, if:
(1) the nonimmigrant was lawfully admitted to the United States;
(2) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
(3) the nonimmigrant has not been employed with authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.

48. I intend to hire a new worker who is in F1 status right now, but he used hold an H1B visa before (subject to quota). Can I apply H1B for him? Is it subject to quota?

If the alien worker has ever been in H1B status during the past six years and has not used up the maximum six year limit, you could still apply H1B for him. Though the application is not subject to quota, he is not eligible to H1B portability.

49. After the company submits the H1B application, is it possible to withdraw the job offer and the application?

Yes. The employer may withdraw both the job offer and the H-1B petition at will.

50. If I intend to apply green card for my alien worker, do I have to apply H1B for him in the first place?

Not necessarily. Each application is independent of the other. The company may apply a green card for the alien worker with or without an H-1B, so long as he is in a legal status and has the proper work authorization.

51. Does submission of immigrant petition affect the H1B status of my alien worker?

No. An H-1B holder may have dual intent: both non-immigrant and immigrant intent. Therefore, the filing of an immigration petition, either an I-130 or an I-140, does not affect the status of an H-1B application.

52. Should the alien worker's H-1B title and salary match the ones on his PERM Labor Certification application?

Not necessarily, since both petitions are filed independently. The H-1B petition may be based on a salary at a bachelor level while PERM labor certification may be based on a master's degree education level.

Xie Law Offices H-1B team has extensive expertise in any H-1B work visa (status) related issues.  For more questions about H-1B, please contact us.

More information about H-1B work visa (status) is also available at H-1B Help Desk.