The Law Offices of Norka M. Schell, L.L.C. welcomes contact from employers and employees to discuss their visa immigration options that best suit your unique situation. Our H-1B lawyers can recommend our business clients the fastest way to bring professional foreign workers to the United States. Our H-1B lawyers also can devise a plan that would allow professional foreign workers to advance their career in the United States while keeping the options open for eventual transition to permanent residency.
What You Should Know About an H-1B Visa:
- The H-1B visa is a non-immigrant visa that allows a qualified professional foreign worker with a minimum of a bachelor’s degree to temporarily (up to 6 years) be employed in the United States by a sponsoring U.S. employer;
- One of the benefits of entering the United States with an H-1B Visa, is that spouses and unmarried under the 21 years old children of the professional foreign worker may also come to the United States;
- To qualify for an H-1B visa, the professional foreign worker can be employed either part-time or full-time; and
- H-1B worker on a valid H-1B visa may travel outside the United States, for business and pleasure, and safely re-enter the country.
The Permanent Labor Condition Application
The process of applying for an H-1B visa is very complex and best be handled by a skilled immigration attorney. An H-1B visa application starts with a Permanent labor condition application (LCA), which must be certified by the Department of Labor (DOL).
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. To achieve this, the offered position must be correctly categorized and identified by an attorney preparing an H-1B application. The employer must maintain a public access file containing information about the required wage to be paid to the H-1B worker and posting of notice. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees.
In addition to the certified LCA, an integral component of an H-1B visa application is the letter of support endorsed by the petitioning U.S. 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.
Attorney Norka Schell as an experienced attorney will assist the U.S. employer in drafting this important piece of evidence in a way that conveys a correct and convincing message to USCIS adjudicating officers.
H-1B Visa Quota Consideration and Deadlines
H-1B Visa have an annual quota mandated by Congress that can be approved per fiscal year of 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. This exemption is limited to 20,000.
There are strict filing deadlines for H-1B visa 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. Due to an 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.
On April 15, 2013, Premium Processing Service became available for all cap-subject H-1B work visa petitions, including those H-1B visa petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher.
H-1B Status and Green Card
As a foreign national working in the U.S., it is very important that you maintain legal status the entire time you are in the country. Maintaining legal status becomes especially important when you are waiting to apply for a green card (or are waiting to receive your green card after you have applied). If you are in the U.S. without any status, you are considered to be here illegally, and U.S. Citizenship and Immigration Services (USCIS) may deny your green card application for that reason alone.
How does an H-1B visa holder maintain legal status while waiting for a green card? What are the possible consequences of not maintaining status?
You Have Not Applied for My Green Card Yet – How Can You Maintain H-1B Status?
Immigration processes can take anywhere from several months to several years to complete. This drawn-out time frame can pose significant problems for H-1B holders, because you can only hold H-1B status for a maximum of six years with some exceptions. Foreign nationals from certain countries such as India and China, typically experience even lengthier delays in their green card processing when compared to nationals from other countries. The reason for this country-specific delay is because the “priority dates” for Indian and Chinese citizens are severely “backlogged.”
The priority date is a very important immigration concept. The U.S. Congress allows only a limited number of employment-based green cards to be given out per year per country. If more people apply for green cards than there are a number of green cards available, some people will have to wait to receive their green cards until one is available to them. (When the number of applicants exceeds the number of green cards available, this is referred to as a green card “backlog.”)
In order to determine who gets a green card at what time, foreign nationals seeking employment-based green cards are assigned priority dates, based on the date their employer first filed the PERM application. When their priority date is current, they can go forward with the application process to receive a green card.
You can see whether your priority date is current by checking the Visa Bulletin, published monthly by the Department of State. For example, let’s say you are an Indian citizen. Your employer filed your PERM application for an employment based second-preference green card (EB-2) on January 1, 2011. If you look to the Visa Bulletin for April 2012, you see that the current priority date for Indians in the EB-2 category is May 1, 2010. Since your priority date is AFTER May 1, 2010, your priority date is not current and you cannot apply for your green card yet. Other people in your category have waited around two years, so you might have to wait a similar amount of time.
Because of these backlogs, you may have an approved immigrant petition but not be able to file your green card application (I-485 Application) for some time. U.S. immigration law allows you to extend your H-1B visa past the six-year maximum if you are the beneficiary of an approved I-140 petition and the only reason you have not filed your green card application is because your priority date is not current.
There is also a way to extend your H-1B status past six years even if your immigrant petition is not yet approved. You can do so if your employer filed your I-140 Petition or PERM application before you started your sixth year of H-1B status. For example, let’s say you began H-1B status on April 1, 2009. Your sixth year of H-1B status would begin on April 1, 2016. Therefore, in order to extend your status past six years, your employer must have filed the labor certification application or I-140 petition sometime before April 1, 2014.
These calculations and time frame can be very complicated and hold crucial implications for your immigration status. It is highly recommended that you consult an immigration attorney if you are in H-1B status and want to begin (or have already begun) the green card process.
You Have Already Applied for My Green Card– How Can You Maintain My H-1B Status?
You may have already applied for your green card by filing the I-485 (adjustment of status) application. Even green card applications may take months or years to receive approval (or denial) from USCIS. By applying for your green card, you are considered to be “in status” even if your underlying nonimmigrant status expires. Applying for your green card grants a status of its own. For example, let’s say your H-1B is valid until April 1, 2012. You applied for your green card on January 1, 2012. You did not extend your H-1B. Once your H-1B expires, you still have legal status to remain in the country even though you no longer have H-1B status. By filing the I-485 application, U.S. law grants you lawful status as an adjustment applicant.
However, merely applying for your green card does NOT give you work or travel authorization. There are two ways that you can obtain these. The first is to keep extending your H-1B, per the guidelines above. The H-1B visa allows you to work and travel in the U.S. and is unaffected by your green card application.
Or, instead of extending your H-1B, when you file your green card application you can also file for work authorization (Form I-765, Employment Authorization Application) and travel authorization (Form I-131, referred to as Advance Parole). These documents will allow you to work in and travel outside of the U.S. while your I-485 is pending.
However, it is important to remember that your EAD, AP, and lawful status as an adjustment applicant cease if and when USCIS denies your application for adjustment of status. Therefore, it would be a better idea to maintain your H-1B status while you await USCIS’s adjudication of your I-485 application. For assistance with your application to apply for green card based on your H-1B status, please contact the firm today at (212) 258-0713 to schedule your consultation.