01/05/09

H-1B and other H Visas

New H-1B Petitions will be accepted for filing by USCIS beginning on April 1, 2009.  In 2008, the H-1B quota filled by April 7th, so employers should be prepared to file H-1B petitions on April 1, 2009.

The following employers are exempt from the H-1B quota and may file H-1B petitions at any time, including:

1.      institutions of higher education and related or affiliated nonprofit entities,

2.      nonprofit research organizations and governmental research organizations; and

3.      employers which provide workers to these entities are also exempt.

Some people are not subject to the H-1B quota, including:

1.      employees changing H-1B employers, or extending or amending their H-1B status with the same employer;

2.      new hires who have had H-1B status during the past 6 years, even though they may no longer be in the United States or in H-1B status (unless their previous employer was H-1B exempt); and

3.      Australians (if the employee is eligible for E-3 ).

Some employees have a special H quota which may fill later this year, or not at all, including:

1.      employees who are nationals of Singapore or Chile (H-1B1 Fast Track); 

2.      employees who have earned a Master’s degree or higher from an U.S. college or university.  This quota also filled on April 7, 2008, so it is no longer an option until April 2009.

By way of background, the H-1B visa allows U.S. companies to employ “specialty occupation” employees. “Specialty occupation” is defined as an occupation requiring the practical and theoretical application of a body of highly specialized knowledge and the attainment of a bachelor’s degree or higher as a minimum for entry into the occupation. Generally, this requires that the new hire have at least a bachelor’s degree and be offered employment in an occupation that requires a bachelor’s degree as the minimum entry level requirement, such as engineers, accountants, architects and scientists, to name a few.

An employer seeking to hire a person already in the U.S. on H-1B status may employ the new hire as soon as the H-1B petition is filed. However, the employee is limited to a total of 6 years in H and L status. Therefore, prospective employers should check an applicant's number of years in H and L status before making a job offer. 
 
Exceptions to the 6-year limit may apply if the person is the beneficiary of an employment-based immigrant petition or labor certification which was filed at least one year previously. People who have lived and worked outside of the U.S. for at least one year are entitled to another 6 years in H and L status.

H-1B1 "Fast Track" visas are similar to the H-1B, except that it is available only to citizens of Chile and Singapore. 

Less common H-1B visas are H-1B2 visas for Department of Defense cooperative research and development project, or co-production project positions and H-1B3 visas for people of distinguished merit and ability in the field of fashion modeling. H-1A visas area available for seasonal agricultural workers.

H-2B visas are available for temporary workers filling a seasonal need, peakload need or an intermittent need, such as ski resort employees.  There is no requirement that the employee fill a professional level position.  Admission may be for up to one year, but cannot be extended unless there are extraordinary circumstances.

H-3 visas are available for temporary workers invited by an individual or organization to receive instruction and training that is "not designed primarily to provide productive employment".  To qualify, the proposed training must not be available in the trainee's home country, the trainee must not be placed in a position in which U.S. citizens are regularly employed, there must be no productive employment unless it is incidental and necessary to the training and pursuing a career outside of the U.S., and the training will benefit the beneficiary in pursuing a career outside of the U.S.  The length of the training program cannot exceed 2 years.

Spouses and children may accompany the employee using an H-4 visa.  Accompanying family members may attend school, but are not eligible to work.