H-1B TEMPORARY WORKER FACT SHEET

WHAT:

The H-1B temporary worker visa allows professional foreign nationals to work in the United States in speciality occupations for a period of up to six years. The application must be filed by the employer; an individual cannot obtain an H-1B visa on his or her own.

QUALIFICATIONS:

The position must be a professional one that requires specialized training. A Bachelor's degree must be a minimum requirement of the position. The foreign national must also have the appropriate Bachelor's degree, or equivalent training and experience. If the position requires a license, the foreign national must possess the appropriate license prior to the filing of the H-1B petition.

PROCEDURE:

Employers must obtain the approval of both the U.S. Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (CIS, formerly the service component of INS). For DOL approval, an employer must show that: (1) he or she is paying the higher of the "prevailing wage" or "actual wage" for the position; (2) he or she has notified other workers of the intention to employ H-1B workers; (3) there is no strike or lockout at the place of employment; and (4) the H-1B workers will not adversely affect the working conditions of U.S. workers. There are severe penalties for failure to comply with these attestations. The DOL may investigate an employer upon a complaint, or without a complaint if it receives “specific, credible information” from a reliable source.

For CIS approval, the employer must show that the position is a professional position that requires specialized training and that the foreign national is a professional who is qualified for the position.

The entire application process usually takes a few months. An applicant who is not already work authorized may not begin employment until the petition is approved by both the DOL and the CIS.

PORTABILITY:

An approved H-1B petition is not immediately transferable to a second employer or a second job with the same employer. If a foreign worker accepts a new job, the new employer must begin the entire H-1B process again. However, the employee who is already in H-1B status can join the new employer as soon as the change-of-employer H petition is filed with CIS. In other words, the employee does not need to wait until the new petition is approved to join the new company. If the new H-1B petition is ultimately denied, the authorization will end at the time of the denial.

H-1B VISA QUOTA:

This visa category is subject to a worldwide quota of less than 65,000 per fiscal year. However, the H-1B quota will not apply to anyone employed (or who has an offer of employment) at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a government research organization. If someone leaves a quota-exempt job, then they become re-subject to the H-1B quota unless the next employer is also exempt. However, anyone who has was counted against the quota in the past six years will not be counted against the quota again.

VISA STRATEGY:

F-1 or J-1 students (not foreign medical graduates) are best advised to apply for practical training before applying for H-1B visa classification. Practical training can be authorized for up to 12 months for F-1 visa holders, and 18 months to 3 years for J-1 visa holders. A student must obtain work authorization from his or her school and the CIS before graduating. If the employment will continue beyond the practical training period, the employer may file an H-1B petition on behalf of the foreign national. Employers and employees should be aware, however, that H-1B visa allocations could be depleted before the end of the fiscal year. (The federal fiscal year runs October 1 to September 30.) You should not delay filing an H-1B petition if it appears that the H-1B allocation may be depleted for that fiscal year.

The services of an experienced immigration attorney are recommended unless the employer is familiar with this process.

DEPENDENTS:

Dependents of H-1B visa holders hold H-4 visas and are NOT authorized to accept employment.

ADDITIONAL REQUIREMENTS

Additional requirements for the H-1B process in addition to those mentioned above, are as follows:

--Whistle blower protection: An employer may not discharge or otherwise discriminate against an employee, former employee or applicant because such individual has disclosed information to the employer or anyone else regarding a potential violation, or for cooperating in an investigation or proceeding.

--Prohibition on “unconscionable contract provisions”: Employers may be fined $1,000 per violation if they require an H-1B nonimmigrant to pay a penalty such as pursuant to a liquidated damages clause (as determined under state law) for leaving the employer's employ before a date agreed to by the nonimmigrant and the employer.

--No “benching” rule: Employers must pay H-1B nonimmigrants the required wage for the full hours specified on the H-1B visa petition even if the beneficiary is in nonproductive status due to a decision by the employer, or based on the nonimmigrant's lack of a permit or license. In other words, full-time employees must be paid full-time wages, and part-time employees must be paid for the minimum hours stated on the petition. This provision does not apply for nonproductive time due to non-work-related factors, such as voluntary absence or circumstances rendering the individual unable to work.

--Benefits: Employers must offer H-1B employees benefits and eligibility for benefits (including participation in health, life, disability, and other insurance plans, retirement and savings plans, bonuses and stock options) on the same basis and in accordance with the same criteria as are offered to U.S. workers.

PERMANENT RESIDENCE:

H-1B visa holders are not permanent residents but may apply to adjust their status to become permanent residents. A permanent resident is sometimes referred to as a "green card" holder. Permanent resident status may be obtained based on the same or similar job as used in the H-1B visa petition process.

FOREIGN MEDICAL GRADUATES:

Foreign medical doctors applying through a clinical employer or residency training program for H-1B classification must additionally show: 1) a state medical license; 2) FLEX I & II, USMLE 1, 2, and 3, FMGEMS I & II or NBME passing scores (all parts of one examination, no mixing of test parts allowed); 3) English language proficiency as documented by ECFMG certification or a medical school diploma from a U.S. accredited school; and 4) an M.D. or equivalent foreign degree or unrestricted foreign Clinical Medical License. Under certain circumstances, J-1 doctors may change to H-1B status through the CIS. Otherwise, J-1s must depart the U.S. to obtain the visa at a U.S. consulate or embassy ("consular processing").

FOR MORE INFORMATION:

Contact Hilary Fraser, Rosanne Mayer, Carolyn Lee or Stephen Yale-Loehr at True, Walsh & Miller, 202 East State Street, Suite 700, Ithaca, New York 14850; tel: 607-273-4200; fax: 607-272-6694; e-mail: twm@twmlaw.com. More information can be found at our web site (http://www.twmlaw.com).

(revised 10/03)