Passports, Visas and the I-94 Card
What is a visa?
A visa is a permit to apply to enter the United States. Visas are different from “status,” which is the length of time an individual may stay in the U.S. after admission. There are two types of visas, nonimmigrant and immigrant. The nonimmigrant visa is issued to individuals who intend to come into the U.S. for a temporary period of stay for a specific purpose. The immigrant visa is issued to individuals who intend to live and work permanently in the U.S. Such individuals obtain “green cards” after arrival and are called permanent residents.
Who needs a visa?
Most individuals coming into the U.S. for a temporary period of stay must obtain a visa. There is an exception for individuals who are nationals of countries which are included in the Visa Waiver Program. Such nonimmigrants are not required to obtain a visa to apply to enter the U.S. as a visitor for business or pleasure (B-1 and/or B-2 visa categories), if they are staying for no more than 90 days. In addition, citizens of Canada do not generally require a nonimmigrant visa unless they are coming to the U.S. as a Treaty Trader or Treaty Investor.
Is there a specific period of time for which a passport must be valid?
The length of the visa may be limited to the expiration date of the passport. In addition, U.S. immigration law requires that a foreign national’s passport be valid during all periods of time spent in the U.S., including the time during an extension of stay, so a person’s status may be limited to the validity of their passport.
How does an individual obtain a visa for entry into the U.S.?
If an individual is planning to travel to the U.S., he or she (and family members) should apply for their nonimmigrant visa(s) at the nearest U.S. embassy or consular post. Prior to applying for the visa, the applicant must obtain the necessary supporting documentation, which may include notice of the approval of a nonimmigrant visa petition by the U.S. Citizenship and Immigration Services (USCIS).
Does a visa guarantee entry into the U.S.?
No. A visa is issued to an individual by a consular officer outside of the U.S. Having a valid visa does not necessarily guarantee a smooth entry into the U.S. U.S. Customs and Border Protection (CBP) has the authority to grant or deny admission to the U.S. In addition, CBP will determine how long an individual may remain in the U.S. This information is recorded on the I-94 card at the port of entry.
What is an I-94 Card?
The I-94 Card is also known as the Arrival/Departure Document. It serves as the registration form for individuals admitted to the U.S. as nonimmigrants. This document is created by CBP when the individual is inspected upon arrival in the U.S. The CBP inspector will endorse the I-94 with the date, place of arrival, status (i.e., F, J, H, L, etc.), and length of authorized stay. The individual keeps the I-94 Card as the official record of admission and permission to remain in the U.S. If an individual decides to remain in the U.S. beyond the date on the I-94 card, he or she must file a petition for an extension of stay with U.S. Citizenship and Immigration Services (USCIS). When departing the U.S., an individual must surrender his or her I-94 Card except if travelling only to Canada, Mexico, or adjacent islands other than Cuba for a period not to exceed 30 days, in which case the individual may be able to use the I-94 Card to reenter the U.S.
Does an individual need a new visa every time he or she travels outside of the U.S.?
Not necessarily. An individual should examine the visa in his or her passport to determine the immigration status (H-1, L-1, J-1, etc.), number of entries permitted, and the expiration date. If the individual is reentering in the same immigration status and the initial visa has not expired and is valid for more than one entry, a new visa is not required. If he or she has changed status in the U.S. prior to departing or plans to reenter in a different status, a new visa is required.
How may an individual in a valid nonimmigrant status obtain or extend the validity of the visa in his or her passport?
Generally, individuals wishing to apply for nonimmigrant visas must make a personal appearance before a U.S. consular officer at a U.S. Embassy or Consulate outside of the U.S. Most applicants apply in their country of nationality; however, some applicants may apply in Canada or Mexico, or in other countries outside their own.
What determines the length of validity of a visa?
A visa is a permit to travel to the U.S. and apply to enter the U.S. The Consular Officer may grant a visa for as little as one month or as long as ten years, depending on the classification of the visa and the treatment given by the individual’s country of nationality to U.S. visa applicants in similar classifications. The U.S. government’s “reciprocity schedule” for each country lists maximum validity of each type of visa for nationals of each country. The validity of the visa does not affect how long an individual may remain in the U.S. on any entry. Therefore, the date on the I-94 Card may be different from the date on the visa.
What determines the length of validity of my stay in the U.S.?
The duration of a nonimmigrant’s lawful stay is recorded on the I-94 Card created by CBP when the individual is inspected upon arrival in the U.S. It may be shorter or longer than the validity of the nonimmigrant’s visa. Nonimmigrants should note the date written on this card, as it governs the time they are “lawfully present” in the U.S.
If a visa has expired and an immigration status extension is in process, may an individual leave the country?
Yes. An individual may leave the U.S.; but, in most cases, he or she must remain out of the country until the extension is approved. Once the approval notice is received, the individual must apply for a new visa at the appropriate U.S. consular post.
What happens if a valid visa is in an expired passport?
The individual should keep the expired passport with the valid visa together with the new passport issued by his or her country of nationality. It is not required — although it may be convenient — to have the visa issued in the new passport.
May an individual travel to the U.S. on a business trip while awaiting a USCIS approval notice for a visa that allows employment in the U.S.?
An individual whose overseas position requires a trip to the U.S. may travel to the U.S. on a business visa (B-1) or under the visa waiver program, but he or she must not assume any of the responsibilities of the U.S. position while in that category. In addition, he or she must remain on the payroll of the foreign company.
Social Security and ITINs
May an employee on a nonimmigrant visa obtain a Social Security Number?
Yes, as long as the employee has entered the U.S. using an employment-authorized visa. If the employee is not in a work authorized status (for example, as a visitor on a pre-relocation trip to the U.S.), the employee may not apply for a Social Security Number. After an employee arrives on an employment-authorized visa and applies for a Social Security Number, it may be six to eight weeks before a number is issued. During that time, the employee may work without a Social Security Number, and the employer can keep track of the employee’s earnings using an identifier other than a Social Security Number.
May the family of an employee on a nonimmigrant visa obtain a Social Security Number?
Generally not, unless the family member is in one of the few classes of nonimmigrant dependents who are able to obtain employment authorization (such as L-2 or E nonimmigrant spouses or J-2 nonimmigrants). For tax compliance purposes (such as opening a bank account), family members may be able to obtain an Individual Taxpayer Identification Number (ITIN). The Internal Revenue Service issues ITINs only to those persons who have a tax reporting obligation (for example, holders of an interest-bearing U.S. bank account).
May a nonimmigrant open a bank account in the U.S.?
There is no legal prohibition against a nonimmigrant opening a bank account in the U.S. However, banks must comply with all federal banking requirements which may require that the individual have a Social Security Number or Individual Taxpayer Identification Number to open an account.
May an employee on a nonimmigrant visa purchase a house in the U.S.?
Yes; however, there may be difficulty obtaining a mortgage because of the employee’s temporary status in the U.S. There are mortgage companies willing to lend to nonimmigrants; however, the terms are generally not as generous as the terms offered to permanent residents or U.S. Citizens, due to the temporary nature of a nonimmigrant’s status in the U.S. Purchasing a residence in the U.S. will have no effect (positive or negative) on the individual’s ability to adjust to lawful permanent resident status.
What is the status of children born in the U.S.?
Children born in the U.S. are U.S. citizens at birth, and may also have acquired the citizenship of their parents. Being the parent of a U.S. citizen provides few immediate benefits, however, as a U.S. citizen child may not petition on behalf of a parent for immigrant benefits until the U.S. citizen child is 21 years of age.
May nonimmigrants bring domestic employees with them to the U.S.?
Yes; however, several conditions apply. The domestic employee must demonstrate at least one year’s experience as a personal or domestic servant; the nonimmigrant and the employee must sign an employment contract guaranteeing that the employee will be employed only by the nonimmigrant and will receive the prevailing wage and free room and board; and either that the employee was employed by the nonimmigrant abroad as a personal or domestic servant for at least one year prior to the date of the employer’s admission to the United States, or that the nonimmigrant has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the domestic servant’s visa application. Domestic servants are given visas in the B-1 nonimmigrant category, and should apply for an employment authorization document from the USCIS upon arrival in the United States.
Hiring International Students
Isn’t it illegal to hire international students because they do not have a green card?
No. Federal regulations permit the employment of international students on F-1 and J-1 visas within certain limits. These visas allow students to work in jobs related to their major fields of study. F-1 students can work on “practical training.” J-1 students may work on “academic training.”
Even if it’s legal to hire international students, won’t it cost a lot of money and involve a lot of paperwork?
No. The only cost to the employer hiring international students is the time and effort to interview and select the best candidate for the job. The international student office handles the paperwork involved in securing the work authorization for F-1 and J-1 students. In fact, a company may save money by hiring international student because the majority of them are exempt from Social Security (FICA) and Medicare tax requirements.
How long can international students work in the United States with their student visas?
F-1 students are eligible for curricular practical training (up to 12 months – such as co-op or internship) before completing their studies, as well as an additional 12 months of optional practical training, either before or following graduation, or a combination of the two. However, if they work full-time for one year or more during curricular practical training, they are not eligible for optional practical training. Students with a J-1 visa are usually eligible to work up to 18 months following graduation, or 36 months for postdoctoral fellows. They may also be eligible to work part-time during their program of study.
Don’t international students need work authorization before I can hire them?
No. International students must have the work authorization before they begin actual employment, but not before they are offered employment. In fact, many J-1 students must have a written job offer in order to apply for work authorization. Many F-1 students will be in the process of obtaining work authorization while they are interviewing for employment. Students can give employers a reasonable estimate of when they expect to receive work authorization.
What does the work authorization look like?
For optional practical training, F-1 students receive from United States Citizenship and Immigration Services (USCIS) an Employment Authorization Document (EAD), a small photo identity card that indicates dates for which they are permitted to work. For curricular practical training, F-1 students receive authorization from school (NOT from USCIS) on the student’s Form I-20. J-1 students receive work authorization in the form of a letter issued by their institutions.
What if I want to continue to employ international students after their work authorization expires?
With a bit of planning ahead, an employer can hire international students to continue to work for them in the H-1B visa category for a total of six years (authorization is granted in two three-year periods). The H-1B is a temporary working visa for workers in a “specialty occupation.” The application procedure to the USCIS is straightforward. The job must meet two basic requirements:
- The salary must meet the prevailing wage as defined by the Department of Labor, and
- A bachelor’s degree or higher is a minimum normal requirement for the position.
Doesn’t an employer have to prove that international students are not taking jobs from a qualified American?
No. American employers are not required to document that a citizen of another country did not take a job from a qualified American if that person is working under a F-1, J-1 or H-1B visa. Employers may be required to document that they did not turn down a qualified American applicant for the position only when they wish to hire foreign citizens on a permanent basis and sponsor them for permanent resident status (a “green card”).
Prevailing Wage Determinations through DOL’s National Processing Center
What is a ‘prevailing wage’?
A prevailing wage is a rate of pay calculated based on the average wages in a particular geographic area for a given employment position. In the immigration context, it is used as a measure of the minimum allowable wage to be paid by employers seeking to employ a foreign national in certain nonimmigrant classifications (H-1B, H-2B, H-1B1, E-3), or sponsor a foreign national for permanent residence through the labor certification process (PERM).
How can I obtain a prevailing wage determination (PWD)?Can I use the same PWD for the H-1B and for PERM? Or the same ETA-9141 for multiple PERM applications for the same position?
Effective January 1, 2010, all prevailing wage requests (PWR) are submitted to the U.S. Department of Labor’s (DOL) National Prevailing Wage Center (NPWHC) on Form ETA-9141. Requests may be made either through the iCert portal, http://icert.doleta.gov/, or by post to:
U.S. Department of Labor
Employment & Training Administration
National Prevailing Wage and HelpDesk Center
ATTN: PWD Request
1341 G Street, NW – Suite 201
Washington, DC 20005 – 3105
DOL has indicated a preference to receive requests via the iCert portal.
Can I use the same PWD for the H-1B and for PERM? Or the same ETA-9141 for multiple PERM applications for the same position?
Yes. Presuming the position description and requirements are identical, and presuming the prevailing wage is still valid, you may use it more than once.
Must I request a prevailing wage determination from DOL?
It depends. If a PERM labor certification application is being submitted, the answer is yes. A formal PWD issued by the DOL is required for every PERM filing.
However, the same is not true for petitions for H-1B, H-1B1, and E-3 nonimmigrant classifications. For these classifications, a DOL PWD need only be obtained if the employer wishes to take advantage of the DOL’s ‘safe harbor’ provisions.
What is Safe Harbor?
Safe harbor is the term used to refer to the DOL’s regulation that states that “In all situations where the employer obtains the PWD from the NPC, the Department will deem that PWD as correct as to the amount of the wage.” Therefore, the employer is “safe” from investigations questioning the validity of the prevailing wage.
Is safe harbor really safe?
For the most part. However, the protection offered by safe harbor may not be as comprehensive as many employers believe. While the DOL may not question the wage itself, they may question the information provided on the ETA-9141 to determine the wage. For example, DOL may investigate if the job description was accurate, sufficiently detailed, and all requirements articulated.
Are there other disadvantages to using safe harbor?
Possibly. For one, the current DOL processing time for a PWD is around 60 days. Since the PWD is needed to file the Labor Condition Application (LCA), it may increase the lead time for filing an H-1B to 10 weeks. For another, if the wage appears to be inaccurate and is completely unrealistic, the employer may have to accept it as valid and raise the offered wage in order to proceed with an H-1B, as noted below.
Can I challenge an unrealistic/incorrect PWD?
Absolutely. There are a number of avenues to challenge a PWD. If it appears to have a technical error, for example, or the information on the PWD appears not related to the ETA-9141, email OFLC.firstname.lastname@example.org.
For non-technical errors, the first step would be to request a redetermination through the iCert portal. The reason for the request should be selected from the drop-down list, and a brief explanation of why the PWD is believed to be incorrect should be noted. This appears to be the quickest way to challenge the wage, sometimes taking less than two weeks.
If the redetermination is denied, the PWD can also be challenged by requesting review by the Center Director, which must be done within 30 days of receiving the response on the redetermination. If that too is denied, an appeal may be made to the Board of Alien Labor Certification Appeals. This will likely take at least a year, if not longer.
We are within 1% of the wage, is there anything we can do short of raising the wage?
Under the regulations, the employer is obligated to pay 100% of the prevailing wage.
Is there guidance on completing the ETA-9141?
Yes. DOL has provided guidance on a number of key issues, noted below.
- ACWIA wage: On the ETA-9141, item D.a.6 (Job Duties), after the description of job duties, include the following statement surrounded by asterisks: “***This employer is an institution of higher education or a research entity under 20 CFR 656.40(e). ***” (March 2010 DOL FAQs). NOTE: The ACWIA wage is applicable to institutions of higher education, nonprofit organizations affiliated with an institution of higher education, and nonprofit research institutions. Please note that the ACWIA wage must be used by such institutions, even if higher than the “all industries” wage library for the same location and position.
- Entry Level Positions (including Postdoctoral Fellows): According to NAFSA’s minutes from the March 25, 2010 DOL Stakeholder’s meeting, “DOL recognized that post-doc positions are typically entry-level training positions that should not be calculated automatically and PWDs should be assigned based on actual duties of the position.…Users are encouraged to… reference the entry-level nature and training component of post-doctoral research [and] … to include the same terminology under job duties.”
- Work Schedule: According to NAFSA’s minutes from the March 25, 2010 DOL Stakeholder’s meeting, the work schedule is not meant to be static. If a position is 35 – 40 hours per week, but the employee has a flexible schedule, it is fine to note “9am-5pm” as the standard schedule.
- Travel: In response to AILA’s question at the March 25, 2010 DOL Stakeholder’s meeting regarding the relevancy of travel to a PWD, the DOL noted that the ETA-9141 is used for several programs (e.g. PERM, H-2B, H-1B) and may not be relevant.
- Worksites: If there are multiple worksites, this should be addressed at D.c.7 and 7a, and is distinct from “travel” as noted above. The form allows you to add as many worksites as necessary. DOL further clarified that multiple worksites on a single campus (within the same MSA) do not need to be listed, and noted that the main office or headquarters can be used instead.
I followed this guidance but still received an unrealistic wage? Can I ignore the DOL’s PWD and do my own determination?
The DOL regulations at 20 CFR 655.731(a)(2)(ii)(A) state that “if employer is unable to wait…for the prevailing wage…or for the CO and/or BALCA to issue a decision [on a request for redetermination], the employer may rely on other legitimate sources.” This would seem to suggest that employers are not required to wait for the PWD for nonimmigrant petitions.
However, the regulations also add that “if the employer later discovers, upon receipt of PWD…that the information relied upon produced a wage below the final PWD…no violation will be found if the employer retroactively compensates the…nonimmigrant.” Some attorneys believe that, if the employer does not wait, but later receives the PWD, the employer may be bound by it.
A best practice for employers who file the ETA-9141 for nonimmigrant petitions and cannot wait for the PWD may be to withdraw the ETA-9141 to avoid receiving a conflicting wage.
How do I do my own determination?
The DOL provides step by step instructions to make a prevailing wage determination. These instructions, available online at http://www.foreignlaborcert.doleta.gov/reg.cfm#PREVAILINGWAGE, are the same instructions used by Certifying Officers in making PWDs. Just as the Certifying Officers do, you should use the job description to determine the appropriate SOC-ONET classification from those available at http://online.onetcenter.org/. This will provide you with the relevant “Job Zone”, which defines the quantitative parameters for the amount of experience the DOL considers “normal to the occupation.”
Once you have determined the SOC-ONET code and corresponding Job Zone, follow the DOL’s “Check Sheet for Use in Determining OES Wage Level” to complete the “Worksheet for Use in Determining OES Level.” These are Appendices B/C of the guidance noted above, which can be used to chart the employer’s job requirements against the DOL’s parameters of “normal to the occupation.” Comparing the amount of education, experience, special skills required by the employer to the SOC-ONET and Job Zone’s definition of “normal to the occupation” will yield a calculation of what wage level is appropriate. You may then determine which of the four levels of prevailing wage used by the DOL is correct. These are available at http://icert.doleta.gov/.
Note that a wage cannot be lower than Level 1. Therefore, the worksheet always includes ‘1’ and points are added as necessary to reflect a more senior level. The highest level is Level 4, so even if the worksheet yields what would seem to be Level 10, it is still considered Level 4 because there is no higher wage. Since this process is trickier in theory than it is in practice, it may be beneficial to view some examples on using the guidance and the DOL’s Worksheet, available at http://www.klaskolaw.com/events-calendar.php?action=view&id=210.
What are the advantages of doing the PWD without DOL?
The primary advantage is expediency. If DOL continues to take 60 days for PWDs, it may not be feasible to wait for the PWD and then file and wait for the LCA.
Another major advantage is that learning how to calculate the prevailing wage takes the mystery out of the process, and avoids having to challenge an unrealistic wage.
Keep in mind that when you calculate the prevailing wage, you will still need to explain how you selected the SOC-ONET category and justify the wage level you determined to be appropriate. You must be able to honestly compare the employer requirements against the SOC-ONET range and select the best match, regardless of where the wage may fall.
If I do my own determination, do I need to submit the ETA-9141?
For H-1B purposes, a DOL-issued PWD is not required. However, using the DOL’s instructions to make your own PWD does not qualify as a “safe harbor” wage.
For PERM applications, a DOL-issued PWD is an absolute requirement. It may be a good idea to do your own calculation to predict the correct wage level, to determine the feasibility of a PERM filing. Moreover, the documents you use to calculate the wage can be submitted to DOL with the ETA-9141 to advocate for a wage.
If I do my own determination, what documents do I include in the Public Access File?
A good practice would be to include those documents you used to determine the appropriate OES level. For example, if you used the DOL’s worksheet to calculate the level based on the SOC-ONET code and the OES wage, you may want to include the worksheet, the print out of the SOC-ONET description, and the OES webpage. You may also want to include a memo to the file explaining on what basis the SOC-ONET code was selected. You may also wish to include print outs of the position descriptions that were similar, but which you did not choose, along with an explanation of why you felt they were not as good a match as the position and wage you selected.
There is no OES wage data in my geographic area for the relevant SOC-ONET code. What do I do?
The regulations at 20 CFR 655.741(a)(2)(iii) note that if there is no data for the occupational category in the area of intended employment, the wage for jobs requiring a substantially similar level of skill within the area of intended employment should be used. If there are no substantially comparable jobs within the geographic area, it is appropriate to look at the occupational category in areas outside the area of intended employment. At the March 25, 2010 DOL Stakeholder’s meeting, DOL indicated that an FAQ on this topic would be forthcoming.
The relevant SOC-ONET code indicated “no zone set”; without the job zone, how do I determine the experience parameters?
This is a great question, but at present, there is no great answer. While we await DOL guidance, a suggestion is to use the Job Zone for a similar type of occupation, and to document your choice in the public access file. For example, if the position is for a Biological Scientist, depending on the job duties, it may make sense to look at the Job Zone for a Microbiologist, or a Biochemist, or a Biomedical Engineer. Most important would be to explain the rationale for using the related occupation in the public access file.
The SOC-ONET code indicated a Job Zone 4, but for Education & Training, it indicated “No Code Set”. How do I determine the degree level that is considered “normal to the occupation”?
This is another great question, for which there is no great answer. A suggestion would be to look at the detailed descriptions related to the relevant SOC-ONET at http://online.onetcenter.org/. There is usually a comment on the normal educational requirements, such as is noted below:
Education: Most of these occupations require graduate school. For example, they may require a master’s degree, and some require a Ph.D., M.D., or J.D. (law degree).
A conservative approach would be to default to the lowest degree level mentioned, a master’s degree, and add a point if a Ph.D. is in fact required. Another approach would be to research the occupation in the DOL’s “Occupational Outlook Handbook” and similar material to determine if there’s a sufficient basis to argue that a Ph.D. is the norm. The DOL guidance recognizes that adding points for wage levels should not be done “in an automated fashion.” However, whatever approach you choose, you should be prepared to justify it with documentation in the public access file.
How do I distinguish between Education, Training, and Experience? What should be considered a “special skill”?
Generally, education refers to the degree requirement. Appendix D of the November 2009 DOL Guidance defines the degree that is considered “normal to the occupation.” If the training and/or experience is part of the education, i.e. it was necessary to obtain the degree, it should not be counted twice. Moreover, consider the actual requirement. For example, is it a certain number of years of medical residency training, or is it that the employee is Board Eligible?
Depending on the nature and extent of the training requirement, it may be considered a “special skill”. The DOL guidance indicates that the employer’s requirements should be compared to the SOC-ONET descriptions to determine if it merits a point, and provides a few examples of special skills, such as foreign language requirements (for other than foreign language teachers and interpreters), or licensure, unless it is a normal requirement to perform the duties at an entry level. Again the DOL states that the worksheet should not be completed in an automated fashion, and if the ‘special skill’ is already encompassed in education or experience, a point should not be added.
Are there any SOC-ONET categories that would work for medical residents?
SOC-ONET categories that have been suggested include:
- 29-1199 – Health Diagnosing and Treating Practitioners, All Other
- 29-1069 – Physicians & Surgeons, All Other
- 29-1062 – Family & General Practitioners
- 29-1063 – Internists, General
Can I forego the OES and use a different wage survey?
Yes. It is permissible to use alternative wage surveys.
How do I request a PWD based upon a source other than OES?
On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, the employer should include a sentence surrounded by asterisks (***) requesting the use of a specific source, with the name, edition, revision and publication date as appropriate. Additionally, the employer may also need to provide supporting documentation, as explained in the questions and answers immediately following.
In addition, after entering the employers’ job title in item D.a.1, enter the title or occupation name and code, as appropriate in square brackets.
D.a.6: *** Request SCA WD 950221 (Rev.23) Emergency Incident/Fire Safety Services***
D.a.1: Site Sample Technician [30210 Laboratory Technician]
What documents do I need to send with a request to use an employer provided/published or employer-conducted/commissioned survey?
According to the DOL November 2009 Guidance, to be acceptable, an employer must provide the following information pertaining to the survey:
- The full name of the published survey (acronyms are not acceptable);
- The publication schedule for the survey. This should include the publication date of the requested survey, the date of the previous version of the survey and the date of the next anticipated release of the survey;
- When the data was collected;
- A description of the job duties or activities used in the survey;
- The methodology used in the survey:
- How the universe was defined;
- How the sample size was determined
- How the participants were selected;
- The number of employers surveyed for the occupation in the area;
- The number of wage value responses (employees) for the occupation in the area; and
- A list of employer participants or explanation of how the cross industry nature of the survey was maintained.
H-1B Nonimmigrant Status For Professionals
Who may obtain H-1B status?
H-1B nonimmigrant status is available for individuals who are coming into the United States temporarily to perform services as a professional in a specialty occupation. Nonimmigrants who are currently in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a U.S. employer on behalf of the intended employee.
What is a specialty occupation?
A specialty occupation is defined as one that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree (or foreign equivalent). Examples of specialty occupations include accountant, computer analyst, engineer, scientist, and architect.
What is involved in applying for H-1B status?
A Labor Condition Application (LCA) is submitted online with the U.S. Department of Labor (DOL). Upon receipt of the certified LCA, the employer must then file the Form I-129, Petition for Nonimmigrant Worker, with the H Supplement, Data Collection, supporting documentation, and a copy of the signed and certified LCA with United States Citizenship and Immigration Services (USCIS). Upon approval, the employee may apply for an H-1B visa at a U.S. Consulate, or will be granted a change of status if they are in status in the US.
What are the filing fees for H-1B status?
The filing fee is U.S. $460. Employers must also pay a $1500 ($750 for employers with 25 employees or less) “U.S. Worker Training Fee” to Department of Homeland Security for the initial petition they file and for the first extension they file on behalf of a particular employee. Employers are also required to pay a $500 “Anti-Fraud Fee” for the initial petition filed on behalf of a particular employee. Finally, if faster adjudication is desired, USCIS provides an option to pay an extra fee of $1,410 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.
What documentation is required to file a petition for H-1B status?
The following documentation is required:
- An approved LCA from the DOL.
- Documentation that the job qualifies as a specialty occupation.
- A copy of the individual’s U.S. degree (bachelor, master or Ph.D.) and/or a foreign degree with evidence that it is equivalent to a U.S. bachelor’s degree or higher. (A combination of education, specialized training, or experience that is equivalent to a U.S. bachelor’s degree may be submitted to meet this requirement.)
- A copy of any required license to practice the occupation in the state of intended employment.
How may an individual determine if a foreign degree is equivalent to a U.S. degree?
An individual may request an evaluation from a reputable credentialing agency.
Is there a certain wage that must be paid to an H-1B employee?
Yes. The wage paid to an H-1B employee must be the higher of 1) the “prevailing wage” (generally, the average wage for the occupation in the geographic area in which the employee will be employed, or the wage set by a union contract for the position) or 2) the “actual wage” (the wage paid by the employer to other employees in the occupation with similar qualifications).
How does an employer determine the prevailing wage?
An employer may request a prevailing wage determination from the State Employment Service Agency (SESA) or may rely upon wage data from an independent survey if the survey meets the Department of Labor requirements.
May an H-1B employee work part-time?
Yes. An H-1B employee may work part-time if the employer petitioned for part-time employment and all other H-1B requirements are met.
How long does this petition process take?
It may take from 6 to 16 weeks to complete the petition process if all of the required documentation was filed with the petition. USCIS provides an option to pay an extra fee of $1000 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.
Are there any times of the year when new H-1B visas are unavailable?
Yes. In recent years, the quota or “cap” for H-1B visas has been reached as early as mid-May. When the cap is reached, no individual may obtain an H-1B until October 1 of the following fiscal year unless the individual is already in H-1B status and seeking an extension, change of employer, or addition of employer. H-1B petitions may be filed as soon as six months ahead of time, or on April 1 for an October 1 start date.
May an H-1B individual work for more than one employer?
An H-1B individual may work for more than one employer if each employer has properly filed an H-1B petition. All employees after the first H-1B employer can allow the employee to commence employment after the filing of the new H-1B petition.
How long may an individual remain in H-1B status?
In most cases, an individual may remain in H-1B status for a maximum of six years. The initial petition may be approved for up to three years, and subsequent requests for extensions may be approved for up to a maximum of six years. The six years cannot be extended by changing employers. In certain limited situations, the individual can obtain H-1B extensions beyond six years while a permanent resident case is pending.
What happens if the employment is terminated before the employee’s H-1B status expires?
If the employer terminates the employment for any reason and before the approved expiration date, the employer is responsible for notifying USCIS and providing return transportation of the employee to his or her last place of foreign residence. In this event, the employee loses legal status and may be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf on a timely basis, or is able to obtain a different nonimmigrant status.
May an employee in H-1B status travel outside of the U.S.?
Yes, an employee in H-1B status may travel if the H-1B status is valid and he or she has a valid H-1B visa in the passport. If the employee does not have a valid H-1B visa, then the employee must obtain an H-1B visa abroad.
May an employee in H-1B status with a pending extension travel outside of the U.S.?
Yes, an employee in H-1B status with a pending extension may travel outside of the U.S. However, if the current valid H-1B status expires while the employee is abroad, then the individual must remain abroad until the extension is approved and also must obtain a valid visa before returning to the U.S.
May an individual in the U.S. in a nonimmigrant visa status change to H-1B without leaving the U.S.?
Yes, if he or she meets all of the criteria for H-1B status and is in valid nonimmigrant status.
How may an individual in a valid nonimmigrant status obtain or extend the validity of the visa in his or her passport?
Generally, individuals wishing to apply for nonimmigrant visas must make a personal appearance before a U.S. consular officer at a U.S. Embassy or Consulate outside of the U.S. Most applicants apply in their home country while visiting there after changing status in the United States. In certain instances, an individual may have his or her visa issued in Canada or Mexico, or in another country than his or her home country.
What happens if an H-1B wants to switch employers?
If an H-1B nonimmigrant wants to switch employers, the new employer must file a petition for H-1B status with USCIS. The individual may commence work for the new employer when the new H-1B petition is filed. This only applies to employees already granted H-1B status with another employer.
What happens if an H-1B employee changes positions but remains with the same employer?
Unless the change in position is an insignificant change, a new LCA and H-1B petition will have to be filed.
What happens if the employer transfers the H-1B employee to another location?
In most cases, a new LCA and H-1B petition will have to be filed. There are some exceptions including if the relocation is not a permanent relocation but a short-term transfer.
Must an employer under take any specific recruitment for U.S. workers prior to filing an H-1B petition?
No, unless the employer has been found to be a willing violator of the LCA regulations.
What is the immigration status of an H-1B employee’s family in the U.S.?
A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to H-4 status. They may not accept employment in that status, but may study in the U.S. If the spouse is eligible for a different status than H-4 (including H-1B), the spouse may elect to enter the U.S. in that status rather than entering as an H-4. Spouses should note that an offer of employment from a U.S. employer is required in order to obtain most types of work-authorized nonimmigrant status.
May a spouse and/or dependent minor children in H-4 status obtain employment authorization?
Some H-1B spouses are eligible for employment authorization once the H-1B spouse has made it part of the way to permanent residence (a “green card”) through an employer. Spouses in H-4 status are not eligible to obtain employment authorization until the H-1B spouse has an approved I-140, Immigrant Visa Petition, in a category for which there is a backlog of immigrant visa processing, or until the H-1B spouse has completed six years in H-1B status and is able to obtain a further extension of his or her H-1B status. Children in H-4 status are not eligible for employment authorization.
May a spouse and/or dependent minor children in H-4 status obtain a Social Security Card?
Only individuals in H-4 status who also have employment authorization are eligible to obtain Social Security Cards. Other individuals in H-4 status may apply for a Taxpayer Identification Number (ITIN) in some circumstances. This application is filed with the U.S. Internal Revenue Service (IRS).
L-1 Nonimmigrant Status for Intracompany Transferees
Who may obtain L-1 status?
The L-1 status is available to a person who has worked abroad for one continuous year within the preceding three years in an executive, managerial or specialized knowledge capacity and is being transferred temporarily to the U.S. to work in an executive, managerial or specialized knowledge capacity for a parent, affiliate, subsidiary, or branch in the U.S.
Who qualifies as an L-1A executive?
Who qualifies as an L-1A manager?
Who qualifies as an employee with specialized knowledge?
What is involved in applying for L-1 status?
The employer must file an L-1 petition (Form I-129 and L Supplement) with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the transferee at the Service Center having jurisdiction over the place where the L-1 will work. Upon approval, the transferee, if outside the United States, may apply for an L-1 visa at a U.S. Consulate. Certain large employers may obtain a “Blanket” L-1 petition. This enables executives, managers and specialized knowledge professionals employed outside the United States by a qualifying organization to apply for the L-1 visa directly at a consulate, without first obtaining an approved individual L-1 petition from USCIS. Canadian citizens may apply at the border for admission to the United States as L nonimmigrants by filing an L-1 petition with the Immigration Inspector at the border or at Pre-Flight Inspection Unit at an international airport in Canada. A petition previously approved by a USCIS Service Center is not required for Canadian citizens.
What are the fees for filing an L-1 petition?
The USCIS filing fee is U.S. $460.
What documentation should be submitted in support of an L-1 petition?
Is there a certain salary that must be paid to an L-1 employee?
There is no specific required salary.
How long does this process take?
Regular processing with USCIS typically takes at least two months. Premium processing (for an additional $1225 fee) is available and processing is to be completed in 15 days or less. Also, the Premium Processing Unit may be contacted directly by phone and e-mail. Because of mandated security checks, obtaining an L visa at a U.S. Consulate can vary from as little as one day to months depending upon the U.S. Consulate where the application is made and the country of citizenship of the applicant.
How long may an individual remain in L-1 status?
A manager or executive may remain in the U.S. for up to seven years. A specialized knowledge employee may remain in the U.S. for up to five years. A specialized knowledge (L-1B) transferee who has held a managerial position in the U.S. for more than six months before the expiration of the five years may change to managerial (L-1A) status and obtain a further extension up to the seven year maximum. The initial approval is for up to three years (except for start up companies or new offices of overseas companies, for which first approval is limited to one year). Extensions are granted in increments of up to two years.
May an employee in L-1 status travel outside the U.S.?
Yes, an L-1 nonimmigrant employee may travel outside the U.S. if he or she is maintaining valid status and has a valid L-1 visa in his or her passport. If the employee does not have a valid L-1 visa, or his or her visa has expired, then the employee must obtain an L-1 visa abroad.
How may an individual in a valid L status obtain an L visa in his or her passport or renew an expired L visa?
An individual who is the beneficiary of an approved L petition wishing to apply for an L nonimmigrant visa must make an appointment and appear in person before a U.S. consular officer at a U.S. Embassy or Consulate outside the U.S. Most applicants apply in their home country. In certain instances, an individual may have his or her visa issued in Canada or Mexico, or in another country than his or her home country.
May an individual in the U.S. in another nonimmigrant visa status change to L-1 without leaving the U.S.?
Yes, if he or she is eligible for change of status and meets all of the criteria for L‑1 status.
What happens if an L-1 employee wants to switch employers?
May an L-1 employee be employed by more than one company in the U.S.?
Yes, as long as all companies for which the employee will work have the required qualifying relationship with the prior overseas employer and each has obtained approved L-1 petitions on behalf of this employee.
What is the immigration status of an L-1 employee’s family in the U.S.?
A spouse and dependent children (unmarried children under the age of 21) of an L-1 employee are entitled to L-2 status. The spouse may work once he or she has obtained an employment authorization document, but the minor children may not.
May a spouse and/or dependent children in L-2 status obtain a Social Security Card(s)?
An L-2 spouse may apply for a Social Security Card by presenting either: (i) an employment authorization document issued by USCIS; or (ii) a marriage certificate and I-94 Arrival/Departure record showing current L-2 status. Other dependents may apply for a Taxpayer Identification Number (ITIN) in some circumstances. This application is filed with the Internal Revenue Service (IRS).
Is an individual with a pending or approved immigrant petition and an application to adjust status pending with USCIS eligible for L status?
Yes, an L nonimmigrant may have the dual intent of becoming an immigrant, if permitted to do so, and at the same time have a present intent to be an L nonimmigrant. He or she is not required to maintain a foreign residence abroad during his or her stay in the U.S. as an L nonimmigrant.