To qualify for an H-1B visa, an alien worker can be employed either part-time or full-time. It is not a violation of alien worker’s non-immigrant status to be on vacation, on sick, maternity or paternity leave. An alien worker on an H-1B visa and his dependents may travel outside the US and come back.

If alien’s employment with a sponsoring firm terminates, he must either leave the United States, get a new employer to sponsor him for an H-1B, or adjust his status. It is a very common course of action for an H-1B visa holder to apply for Lawful Permanent Residency (green card) through his current employer (PERM). It is also common for H-1B visa holders to make an adjustment of status based on marriage to a US citizen.

The process of applying for H-1B status is very complex and best handled by an immigration law expert. In order for the sponsoring employer to be able to submit a petition to USCIS, the employer must submit a labor condition application (LCA), which must be certified by the Department of Labor. LCAs are currently being accepted electronically and may be submitted by an attorney on behalf of the petitioning employer. The electronic system has fully replaced the former fax system, and only employers or agents who have written permission from the Office of Foreign Labor Certification (OFLC) may file by mail.

One of the main requirements of the LCA is a declaration made by the employer to pay at least the prevailing wage for the offered position as it is determined by an appropriate wage source for the specific geographic location of employment. In order to determine this, the offered position must be correctly categorized and identified through an analysis of the job description and job requirements. There is a three-digit occupational code which corresponds to a particular field, as well as a six-digit North American Industry Classification System (NAICS) code which defines an occupation within a given industry.

In addition to the certified LCA, an integral component of an H-1B application is the letter of support endorsed by the petitioning employer. This letter seeks to establish that the alien will indeed be employed in a specialty occupation and that the alien is qualified for the position offered. In our office an experienced attorney drafts this important piece of evidence, and we have been successful in the past in conveying the correct message to adjudicating officers.

There is a Congressionally-mandated cap on the number of new H-1Bs that can be approved per fiscal year which is currently set at 65,000. There is an exemption from this cap available for aliens who have earned a Master’s or higher degree from a university in the United States, however this exemption is limited to 20,000. Also, some petitioning employers are exempt from all numerical limitations. Examples of these employers are: certain institutions of higher education, nonprofit entities related to or affiliated with institutions of higher education, nonprofit research organizations, and governmental research organizations.

There are strict filing deadlines for H-1B petitions which all cap-subject applications must adhere to in order to be considered. The fiscal year begins on October 1 and the employment start date can be no earlier than this, so if a petitioner requests an October 1 start date, the application must be submitted on or after April 1. If an H-1B cap application for the fiscal year 2009 is received by USCIS before April 1, 2008 it will be denied, and the filing fees will not be returned. This is because applications must be filed no earlier than 6 months prior to the requested start date. However, due to the increasingly high volume of H-1B filings, each year the cap is filled closer and closer to the first day on which cap-subject applications are accepted.

For logistical reasons, and in anticipation of the large number of applications that would be filed for fiscal year 2009, USCIS announced that it would accept applications counting toward the cap received during the first five business days petitions were to be accepted (April 1 – April 7, 2008). On April 8, 2008 USCIS issued a press release stating that they had received more than enough H-1B petitions to reach the cap (including the 20,000 U.S. Master’s cap). This illustrates the importance of careful planning and retaining Valentini Law Offices, a New York Immigration Lawyer to prepare your H-1B visa application well ahead of time.

In order to fairly handle the large number of applications filed within the allotted processing period, USCIS announced that it would utilize a computer-generated random selection process to select enough petitions to meet the cap. All petitions that are not selected for processing will be rejected, with all filing fees returned.

On March 19, 2008 USCIS published an interim final rule in the Federal Register prohibiting multiple filings by an employer on behalf of the same alien for the same position. Such duplicate filings attempt to undermine a fair system where each alien has an equal chance of being randomly selected by giving some petitioners an unfair advantage. USCIS will deny or revoke such duplicate petitions and not refund the filing fees. Also, if a petitioner incorrectly claims to be exempt from the cap, filing fees will not be returned and the application will be denied if there are no cap numbers available.

A new USCIS short-term measure announced on April 18, 2008 adds to the picture by allowing beneficiaries of selected H-1B petitions with an October 1 start date currently on F-1 status to request an extension of status to cover the gap between their F-1 expiry and the start date of their approved H-1B employment. Thus, alien beneficiaries will be able to maintain their lawful status without having to leave the country.

It is important to retain an immigration lawyer such as Valentini Law Offices, PLLC New York Immigration Lawyer with an expertise in H-1B visa filings in order to ensure that an application will not be denied due to an avoidable error. Also, an H-1B lawyer would be able to determine correct filing fees and whether or not a particular employer is cap-subject, which will in turn directly affect the outcome of the case. Contact Valentini Law Offices, PLLC today to discuss your case at a consultation.

 

PERM

To get a green card through employment, most alien workers have to apply for labor certification. Permanent labor certification or PERM allows an alien worker to permanently work and live in the United States. The alien’s intended employment has to be full-time.

The first step of the process is certification by the Department of Labor (DOL) that there are no qualified US workers who are able, willing, qualified and available to accept that job at the prevailing wage. Additionally, the DOL has to certify that the intended employment of the alien worker must not adversely affect the wages and working conditions of US workers.

After labor certification goes through, the paperwork is filed with the USCIS. Then, if a priority date is current, an alien worker who is outside the US starts consular proceedings. If an alien worker is already in the US, he can go ahead and file his application for adjustment of status with USCIS.

Upon the successful conclusion of this complex multi-step process, an alien worker and his spouse and unmarried children under 21 receive lawful permanent resident status (green card). The Green card entitles an alien to virtually all the same rights as a US citizen. Four years and nine month after the alien worker’s green card was issued, the alien worker, his spouse and children are eligible to apply for US citizenship.

It is possible for a US employer to file a labor certification application for a prospective employee. However, the most common scenario is when the employer applies for an alien worker whom he is already employing.