The H-1B non-immigrant visa may be used to bring a worker temporarily to the United States if the employee will work in a "specialty occupation" or a professional position. USCIS is authorized to approve 65,000 H-1B visa petitions per year, but many H-1B employers and workers are exempt to the numerical limitation. Most J-1 physicians are exempt from the cap as are most H-1B physicians during residency training.

WHAT DOES THE EMPLOYER DO?

·        Qualifying as a U.S. Employer

·        The employer must have a U.S. taxpayer identification number. Obtaining an Approved Labor Condition Application

The employer must prepare and file a Labor Condition Application (LCA) with the Department of Labor (DOL). The LCA must be carefully prepared and posted in at least two conspicuous places at each work site. The form requires the employer to describe the position, the salary, and the source used to obtain the prevailing wage for the occupation. The LCA also requires the employer to attest to complex facts concerning the wages, hours, and working conditions for the position.

Pursuant to the LCA the employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees. Upon request, these records must be provided to the DOL.

If an employer does not document the wage, pay the required wage or maintain the required records, the employer could be liable for substantial penalties including back pay and fines. The employer could even lose the right to file for H-1B petitions as well as other immigrant and non-immigrant petitions for up to one year.

If the employer terminates the employee before the H-1B expires, the employer is responsible for paying for the employee's return transportation to his or her last foreign residence.

WHAT DOES THE EMPLOYEE DO?

The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer at the time the petition is filed. The employee must be able to show that his or her foreign university degree is the equivalent to a U.S. degree by obtaining a credentials evaluation of his or her education.

If the worker is in the U.S. and currently holds a valid nonimmigrant visa status, he or she may apply in the U.S. for a change of status to H-1B status. For example, if he or she is in lawful student status (F-1), or exchange visitor (J-1) status, the worker may seek a change from F-1 to H-1B. This change gives the person the ability to work in the U.S. for the sponsoring employer. If the worker needs to travel abroad, he or she will still need to apply for an H-1B visa at an American consular post outside the United States to return. Workers not in lawful status in the U.S., or those residing abroad must apply for an H-1B visa at an American consular post.

Those with J-1 status must obtain a waiver of the two year residence requirements if applicable, before applying for a change of status from J-1 to H-1B.

HOW LONG CAN THE H-1B EMPLOYEE REMAIN IN THE U.S.?

The H-1B is a temporary visa with specific limitations on periods of stay in the United States. The initial petition may be approved for up to three years and the Employer may file for an extension for up to three years.

After six years, the worker must spend one year outside the United States before he or she is entitled to be granted H-1B or L status. There are several circumstances where the six-year limit may be waived. Many workers with H-1B status obtain permanent residence ("green cards") during their initial six-year stay in the U.S. It is advisable to consult with competent immigration counsel at the start of the H-1B process to plan a comprehensive strategy for visa and permanent residence goals.

The H-1B employee's spouse and unmarried children under 21 years old may be granted H-4 status. An H-4 visa holder is not permitted to work in the United States, but may, attend school.

PREMIUM PROCESSING H-1B PETITIONS

The USCIS provides a service known as Premium Processing which offers faster processing times for certain employment-based nonimmigrant petitions and applications, such as H-1Bs.

For an additional fee of $1,000 the USCIS guarantees that within 15 calendar days of receipt of the H-1B petition, they will issue an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation. Premium Processing may be requested on pending or newly filed petitions. If USCIS fails to meet its 15 calendar day guarantee, it will refund the $1,000.

It is possible to upgrade an H-1B petition from premium processing to regular processing after the H-1B petition is filed.

H-1B CAP ISSUES

In recent years, there has been an annual cap of 65,000 H-1B visas available. An additional 20,000 H-1B visa numbers were added to the pool for foreign nationals who possess graduate degrees from U.S. educational institutions. In addition, there is a separate pool of H-1B visas for Singapore and Chilean nationals. The H-1B cap for FY 2008 (October 1, 2007 through September 30, 2008) was reached on April 27, 2007, the first day USCIS accepted applications and a lottery was conducted to allocate the visa numbers. What this means:

• H-1B petitions for aliens already in H-1B status who have been counted against the cap in the preceding six years and who are changing employers, taking a second job, changing the terms of employment, or extending their stay are exempt from the cap.

• Petitions can be filed for new employment by institutions of higher education, governmental research organizations, and non-profit affiliates of institutions of higher education (e.g.- university teaching hospitals, and many community and rural health centers) as they are exempt from the H-1B cap.

• J-1 waivered physicians with federal or state interested government agency waivers personally exempt from the H-1B cap.

• Physicians transferring from exempt employment, such as residency positions, to a for profit employer ARE subject to the H-1B cap.