Visa-H

The H-1B,  Temporary Work Permit

The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

  • A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
  • There is a limitation on how many of these visas will be issued each year.  The cap for 2008 is 65,000.
  • H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129 petition plus accompanying fee of $130. (Prior to FY2004, employers were required to submit an additional $1,000 fee to sponsor the H-1B worker, unless specifically exempt.) Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant status.  H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.
  • Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when (1) 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or (2) 365 days or more have passed since the filing of an EB immigrant petition.

  • An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as “dual intent” and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.  An H-1B alien may also leave the U.S. and return without affecting status.

The H-2B Visa,  Temporary Service or Labor Workers

The term “temporary services” is defined as services where the petitioner’s need, rather than the job itself, is temporary. Ordinarily, this means that the need must be for one year or less. It may be a one-time occurrence, a seasonal need, a peak load need or an intermittent need.

A temporary H-2B visa requires a Labor Certification prior to approval and issuance.  The Labor Certification is advice to USCIS concerning availability of U.S. workers and whether or not the proposed employment would adversely affect similarly employed U.S. workers. Labor certifications are issued by the Department of Labor (DOL) for up to one year, except that for the Virgin Islands, such certifications can be issued only for 45 days and are limited to athletes and entertainers.

An H-2B visa recipient must have a petitioner to apply for the visa.  The petitioner may be a U.S. employer or a foreign employer (one not subject to service of process in the United States) filing through a U.S. agent. A foreign employer which has no location in the United States must give a U.S. authorized representative hiring authority to consider U.S. workers for the job, offer prevailing wages and working conditions, and to file the petition. The H-2B petition must include a statement from the foreign employer granting authority to the U.S. authorized representative to act in its behalf.

The employer must submit with the petition:

  • Evidence of ability to pay the required wage;
  • Evidence of the qualifications of the beneficiary(ies), if any;
  • Evidence addressing the temporary nature of the need; and
  • Unless the DOL has pre-certified the position either:
    • A labor certification issued by the DOL; or
    • A statement by the DOL that a certification cannot be made (and why), accompanied by evidence addressing prevailing wages and working conditions of similarly employed U.S. workers.

The petitioner is responsible for return transportation costs if the alien is dismissed for any reason prior to the end of the validity period of the petition.

The petitioner is required to provide evidence that the alien meets the education, training and experience requirements specified in the labor certification application, unless there are none. Even though the DOL and the Governor of Guam do not require the names of beneficiaries for the temporary H-2B labor certification, the name(s) and qualifications of beneficiaries must be submitted with the H-2B petition except in emergent situations as determined by the director.

An H-2B petition for more than one beneficiary may be approved in whole or in part.

The regulations incorporate the test for determining the temporary nature of services to be performed by an H-2B temporary worker. The test for determining “temporary services or labor” for H-2B classification is whether the need of the employer for the duties to be performed is temporary. It is the nature of the employer’s need, not the nature of the duties, that is controlling. This policy does not make the H-2B classification indiscriminately available to any employer since, in most cases, the nature of the employer’s need coincides with the nature of the job. The nature of the employer’s temporary need must be seasonal, peakload, intermittent, or a one-time occurrence.

A petitioner may not impose circumstances or working conditions which are inappropriate for the job opportunity (e.g., he or she may not require that the employee speak particular foreign language unless he/she can establish that the language requirement is necessary to do the job). Likewise, if the beneficiary is being compensated for an unusually small salary (or none at all) in some other (perhaps intangible) manner (e.g., a performer appearing in commercial entertainment who is being compensated through increased exposure to the American public), the petition shall be denied and no appeal shall lie from the decision.