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Los Angeles Corporate Visa Attorneys

H-1B Description

The attorneys at ILOLA have successfully processed over 12,000 cases for their corporate clients. The clients range from multinational conglomerate companies to small start-up companies in diverse industries including software/internet companies of all types, accounting/finance/credit card companies, manufacturing companies, agriculture-related companies to IT consulting companies. The attorneys at ILOLA have more than 50 years of cumulative H-1B experience and have developed tremendous expertise and successfully received approvals on even the most difficult H-1Bs. H-1B comprised one of their largest portion of the immigration law practice.

The attorneys at ILOLA have developed tremendous expertise in H-1B petition process and take great pride in providing personal legal services for all the employers and employees involved in the H-1B process. We understand that this process can be stressful for both employers and employee during this process, so we remain in constant communication with the employers and employee to discuss their options, status of the cases and their responsibilities going forward. This constant communication and dialogue have helped to make this process very easy and smooth for all our clients.

H-1B Q&A

Question 1: What is an H-1B?

H-1B is a classification for “specialty occupation workers”. A specialty occupation worker is a person who will be employed to work in a job which requires at least a Bachelor’s degree in a specialized field of study.

For example, two classic examples of specialty occupations are Computer Programmer Analyst, since this job requires a degree in Computer Science (or its equivalent), and Engineering, since engineering jobs require degrees in engineering (or its equivalent).

An example of a job which would not qualify as a specialty occupation would be office manager, since even if a company required a Bachelor’s degree for such position, it would be relatively unusual for it to require a Bachelor’s degree in a certain specialized field of study.

Question 2: What are the requirements necessary for an H-1B?

Although there are many regulations and requirements, some major requirements are:

    1. The position being offered must be a “specialty occupation.”
    2. The alien must be qualified for that “specialty occupation.”
    3. The alien must be paid at least a “prevailing wage.”

Question 3: Regarding the second requirement, how can one determine whether an alien qualifies for the “specialty occupation”?

In seeking to assess whether a foreign worker for whom the sponsor is considering recruiting qualifies for H-1B status there are a few simple guidelines that will apply in a majority of cases.

For example, a foreign worker with at least a Bachelor’s degree from a US University in exactly the field of engineering in which the sponsor intends to employ him can be safely assumed to be qualified for H-1B classification. Likewise, the holder of a U.S. Bachelor’s or higher degree in Computer Science or Computer or Management Information Systems can be safely assumed to be qualified for H-1B classification if he will be offered a position as a Programmer or Systems Analyst or Software Engineer.

Beyond such straightforward cases however there is simply no replacement for the assistance of legal counsel. For example, if the employee’s degree is from a foreign university it may, or may not be equivalent of a U.S. Bachelor’s. Further, an alien with a degree in Mechanical Engineering may or may not qualify to provide services in the Electrical Engineering or Computer field based upon his work experience. Therefore, whenever the sponsor has an alien whom he wishes to place in a job which may qualify as a “specialty occupation” who does not hold at least a bachelor’s degree from a U.S. university in that specialty, it is advisable for the sponsor to fax his resume to an immigration attorney for a feasibility assessment.

Question 4: In regards to the third requirement, the alien must be paid at least a “prevailing wage.” What is a “prevailing wage”?

The “prevailing wage” is the weighted average of the wages paid to similarly employed U.S. workers in the metropolitan area in which these employees will work. The prevailing wage requirement seeks to protect U.S. workers against displacement i.e., a company hires cheaper foreign labor for specialty occupation positions.

Question 5: How long is an H-1B effective for?

An H-1B petition may be approved for a maximum of 3 years, and can be extended another 3 years, up to a maximum of 6 years total. Once that six year period has expired he must leave the U.S. for at least one year before he can be granted H-1B classification again.

Question 6: Can an H-1B alien be fired from his job prior to the expiration of his/her H-1B?

Answer: Yes. In addition, termination of the H-1B worker’s employment terminates his legal status in the U.S. as well. Therefore, it is imperative that the H-1B worker immediately change to another status, if he/she wishes to remain in the U.S. Often. the counsel have been successful in changing the immigration status of terminated H-1B workers to visitors, so that they could continue to remain in the U.S. in lawful status for up to 6 months after their H-1B employment is terminated.

Question 7: An alien wants to quit his H-1B job and work for another employer. When can the alien work for the new employer without violating his nonimmigrant status begin working for this new employer upon filing of H-1B petition?

Answer: Alien can work for the new employer upon filing of a new H-1B petition. While it remains a general rule that the mere fact that the sponsor has filed an H-1B petition upon an alien’s behalf does not authorize him to work for the sponsor, there is now an important exception. Under the new H-1B “portability” provisions, someone may start working for the sponsor immediately upon INS’s receipt of H-1B petition provided that:

    1. He holds an unexpired form I-94 (or, if he is a Canadian, entered the U.S. as a visitor less than 6 months ago) and,
    2. He has at some time in the past held either an H-1B visa, or H-1B status in the United States.

Question 8: An alien received approval for an H-1B petition. The employer is willing to sponsor him for a green card. Can the alien commence the procedures necessary to start on his green card?

Answer: Yes. Since it takes approximately 3 – 5 years for applications for permanent residence based upon employment to be approved for non-Chinese and non-Indian applicants, serious consideration should be given to applying for U.S. permanent residence for any employee who the sponsor may wish to employ on a long-term basis.

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