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What
is an H-1B?
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.
What
is a specialty occupation?
A specialty occupation requires theoretical and practical application
of a body of specialized knowledge along with at least a bachelorÕs
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.
Is
there an annual limit on the number of H-1B aliens?
Yes. The current law limits to 195,000 the number of aliens who
may be issued a visa or otherwise provided H-1B status in FY2001.
In 2002, the number of aliens who can be issued a visa will also
be 195,000.
How
does one apply?
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 an I-129 petition with the INS and, unless
specifically exempt under the law, an additional $500 fee to sponsor
the H-1B worker. Based on the INS petition approval, the alien may
apply for the H-1B visa, admission, or a change of nonimmigrant
status.
How
long can an alien be in H-1B status?
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.
Who
can an H-1B alien work for?
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 an I-129 petition filed by each employer.
What
if the alienÕs circumstances change?
As long as the alien continues to provide H-1B services for a U.S.
employer, most changes will not mean that an alien is out of status.
An alien may change employers without affecting status, but the
new employer must file a new I-129 petition for the alien before
he or she begins working for the new employer. The merger or sale
of an H-1B employerÕs business will not affect the alienÕs status
in many instances. However, if the change means that the alien is
working in a capacity other than the specialty occupation for which
they petitioned, it is a status violation.
Must
an H-1B alien be working at all times?
As long as the employer/employee relationship exists, an H-1B alien
is still in status. An H-1B alien may work in full or part-time
employment and remain in status. An H-1B alien may also be on vacation,
sick/maternity/paternity leave, on strike, or otherwise inactive
without affecting his or her status.
Can
an H-1B alien travel outside the U.S.?
An H-1B visa allows an alien holding that status to reenter the
U.S. during the validity period of the visa and approved petition.
Can
an H-1B alien intend to immigrate permanently to the U.S.?
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
request other advance permission from the INS to return to the U.S.
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