The Limitations of
an H-1B Status, and the
1. The Temporary Nature of H-1B, and Other Limitations for H-1B Workers
The H-1B status is temporary in nature, and may be approved initially for a period of up to three years. However, it can be renewed for up to another three years. Thus, the duration of an H-1B worker's stay in the United States can reach a maximum of 6 years. After six years in H-1B status, the alien individual must depart the U.S. for at least one year before qualifying again for H-1B status.
The H-1B position should be temporary in nature and cannot initially exceed three years in length. However, a subsequent H-1B extension of an additional time, not exceeding three years, may be requested for a total of six years. Thereafter, the H-1B visa holder should exit the country for at least one year, unless the individual has filed a Labor Certification which was approved or pending for more than 365 days. An exception also applies to an individual who has changed his or her status from H-1B to H-4, so the alien may remain in H-4 status as long as the spouse has a valid H-1B status.
Also, the beneficiary of an H-1B application may recapture all periods of time he or she has spent outside the U.S. For example, if an individual spent eight months out of the total six years outside of the U.S., he or she may petition for and recapture the eight months.
The other limitations for H-1B workers include:
- Ineligible to work prior to H-1B approval: Unless otherwise authorized to work, employment may not begin until the USCIS has approved the petition. If the alien already holds an H-1B, the alien may begin work for a new employer, as soon as the new employer files an H-1B petition on behalf of the employee with the USCIS.
- Work authorization for H-1B workers is employer-specific: limited to employment with the approved employer.
- A change of employer requires a new H-1B petition: new employment (any employment other than the originally approved employment) cannot begin until a petition for change of employment is approved by the USCIS, and multiple employers require multiple H-1B petitions.
- H-1B worker's spouse and children are not allowed to work: Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. The spouse and children of the H-1B visa holder are not permitted to work, unless otherwise authorized by the USCIS.
- No automatic conversion to permanent residence status: The H-1B visa does not automatically convert to a lawful permanent residence status. H-1B status is independent of the Green Card application.
- The employment at will: Either the employer or the alien may terminate employment at any time for any or no reason at all. As soon as employment is terminated, the H-1B status is technically not valid. However, the USCIS allows a period about ten days in U.S., from the date that you are fired or laid off. In other words, you will be able to legally remain in the U.S. for ten days and must file a change of status during this time.
2. H-1B Extension beyond the Six-year Limit, and the H-1B Portability Rule Related to Change of Employer
In most cases, an H-1B holder may not extend the H-1B status beyond the six-year period, unless he or she qualifies under one of the following three exemptions:
1) An H-1B holder that is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition, and is waiting for the immigrant visa number to apply for an adjustment of status (Form I-485 application), may apply to the USCIS for extensions of H-1B status beyond the six-year period until his adjustment of status application has been adjudicated.
2) A beneficiary of EB-1 and NIW, if the immigration petition is filed over 365 days, either pending or approved, may file the extension of his H-1B beyond the six-year limit.
3) A beneficiary of EB-3 and EB-2 (other than a national interest waiver), if the Labor Certification was approved and filed more than 365 days, and the Form I-140 immigration petition is filed (either pending or approved), may apply to extend his H-1B status beyond the six-year limit.
The H-1B portability is a complicated issue that may have serious consequences on the H-1B beneficiary's legal status. Under the H-1B portability rule, a foreign worker in H-1B status may begin to work for a new employer upon proper filing of a new H-1B petition by the prospective employer, if the following requirements are met:
- The H-1B worker was lawfully admitted;
- The new H-1B petition is filed while the H-1B worker is not out of status; and
- The H-1B worker has not been engaged in unauthorized employment since last lawful admission.
3. Residing Outside the United States for One Year To Be Eligible for Another 6 Years of H-1B
The H-1B workers have a general limit of six years of time in H-1B status. This may be extended, based upon the filing of a qualifying employment-based Green Card application case. Alternatively, individuals who reside outside the United States for one year become eligible for a full six-years of H-1B time. The latter cases are subject to the H-1B annual limit or "cap."
The USCIS has indicated that stays in the U.S. that are not within the brief trip for business or pleasure category may cause the clock to reset of applying for H-1B visa again. This would mean that the individual would have to start counting the year abroad from the point of his/her most recent departure from the United States. The USCIS did not give any indication of the permitted length of such trips. Therefore, it is helpful to know the one-year-abroad requirement for a foreign national to become eligible for another six years of H-1B status, as well as the USCIS' interpretation of brief visits.
4. The Most Common Violations of H-1B Program
The most common violations of the H-1B program included:
1) H-1B beneficiaries working at locations not listed in the H-1B petition or Labor Certification Application (LCA);
2) H-1B workers not receiving the required prevailing wage, including underpayment of wages, improper deductions, and benching; and
3) Violations involving shell businesses or the lack of bona fide job offers. This category covers instances of nonexistent business locations, locations too small to support the number of sponsored employees, or lack of evidence that the employers intended for the H-1B workers to fill the jobs described in the H-1B petitions.
The H-1B trend is toward increasing enforcement and stricter standards for approval. Employers that rely upon H-1B workers need to be cognizant of this trend. While fraud and noncompliance is certainly a serious problem, however, it should be noted that the DOL reveals that the vast majority of companies and H-1B filings are clean. The problems lie in a noticeable minority that is tainting an otherwise positive and worthwhile program.
The consequences of the H-1B program violation can include arrests and indictment, for both the individuals and companies involved, as well as for other companies that may have. Companies using the H-1B program must recognize that USCIS and DOL are in a new era of enforcement and scrutiny. Business practices that may have been overlooked in the past are now leading to DOL investigations and arrests. Employers must review their practices and revise their systems to ensure compliance with the law, including H-1B requirements.
For example, the Department of Justice (DOJ) issued a ten-count indictment against an IT services company of New Jersey, for conspiracy and mail fraud involving H-1B visas. The indictment seeks $7.4 million in forfeitures against the company, while sending a warning that other IT companies are under investigation. The indictment alleges, in summary, that company established a branch office in Iowa and filed false H-1B and Labor Certification cases based upon nonexistent Iowa employment. It further alleges that the company paid employees through the Iowa location and made Iowa-based tax filings, notwithstanding the fact that the employees were not working in Iowa. It alleges that cases were filed with false addresses for the employees, that LCA posting notices were made in improper work locations, and other such violations.
5. The Sanctions against H-1B Sponsors Who Violate Laws
When filing an H-1B application, small errors and oversights can subject an employer to a multitude of sanctions. In addition to the fines and penalties discussed below, willful violators may be randomly investigated by the USCIS for a period of five years.
1) Fine and one-year prohibition from filing immigrant and nonimmigrant visa petitions for failure to meet strike or layoff attestation; substantial failure to meet working-condition attestation or displacement attestation, posting or recruitment attestations, or misrepresentation of material fact in the LCA;
2) Fine and two-year prohibition from filing immigrant and nonimmigrant petitions for willful failure to meet any attestation, or willful misrepresentation of material fact in the LCA;
3) Fine and three-year prohibition for willful failure to meet an attestation condition, or willful misrepresentation of a material fact in an LCA, in the course of which failure or misrepresentation, a U.S. worker is displaced during the period commencing 90 days before filing the application and ending 90 days after filing the H-1B visa petition.
A violation will be found for failure to pay full-time wages to a full-time employee, failure to pay a part-time employee the part-time rate identified in the visa petition, failure to pay a new H-1B employee within 30 days of admission, or failure to pay a new H-1B nonimmigrant already present in the United States within 60 days of the date the nonimmigrant becomes eligible to work for the employer.
If an H-1B nonimmigrant is dismissed before the end of the period of authorized stay, the employer is liable for the costs of return transportation to the beneficiary's foreign residence. Any dismissal is covered, including one for cause. The exception is when the beneficiary voluntarily terminates employment. In addition, the employer is now required to withdraw the H-1B petition to ensure that it is no longer obligated to pay the required wage for the employee who has been terminated.
6. USCIS' Office of Fraud Detection and National Security and Site Visit
A special office of U.S. Citizenship and Immigration Services (USCIS), called the Office of Fraud Detection and National Security (FDNS) will conduct a site visit for companies with alien workers in H-1B, L-1, or O-1 status. There may be a few red flags to trigger the FDNS to have a site visit. For example, the alien workers may be placed at a location that is different from the U.S. employer’s actual work location. These practice and work location arrangements are often occur with alien workers in the Information Technology (IT) field.
Some U.S. service companies employ many alien workers as "consultant", and assign these consultants to work for their "end client" companies at the client's locations. Because these arrangements can be confusing for USCIS, the FDNS conducts the site visits to confirm that the worksite location explanation on the non-immigrant visa application Form I-129 for H-1B, L-1, or O-1 visa is correct, and that the U.S. service companies are truly the alien worker’s employer.
It is very importance to provide true and accurate information on all H-1B, L-1, or O-1 visa applications. The USCIS' Office of Fraud Detection and National Security is very likely to conduct a site visit if the U.S. employer has previously committed immigration visa fraud. If the FDNS finds the fraud, it will carefully review all subsequent immigration petitions filed by the U.S. employer.
7. USCIS May Visit H-1B Employer's Site
If you are working in the U.S. on an H-1B visa, you should know that the immigration authorities have not forgotten about you. U.S. Citizenship and Immigration Services (USCIS) has launched a site visit program, under which it sends investigators out to make site visits throughout the United States to selected H-1B employers. The general purpose is to monitor and detect fraud, and in some cases help USCIS decide whether or not to approve an H-1B petition -- most often, an extension -- filed on behalf of a particular employee.
Even if no fraud is found, FDNS says it will use information it collects during the site visit to help USCIS develop a database of information and profiles of the types of companies that have records of good faith hiring of immigrants and immigration compliance. That will in turn help it figure out which companies are doing the opposite and committing immigration fraud.
The actual site visits are carried out by USCIS's Fraud Detection and National Security Office (FDNS). Apparently FDNS has been adding staff and increasing the number of site visits it performs, so it's fairly likely your worksite will be among those chosen. Most likely the FDNS officer will simply show up at your worksite unannounced. No employer permission is needed for FDNS to investigate the work site. Some officers have, however, been known to call the company in advance to notify it of the upcoming visit.
If your employer wants to have an attorney present, it can do so, but the FDNS officer won't delay the visit to wait for the attorney. Unless the attorney is a very quick driver, he or she will probably need to weigh in by telephone. A typical site visit lasts anywhere from 15 minutes to an hour and a half. Of course, the officer has the power to stay at the worksite longer if he or she deems it necessary.
The FDNS officer will probably start by asking to speak to an employer representative, such as the human resources (HR) manager or whoever handles filing visa petitions. If the officer is following up on a particular visa petition, he or she will ask the HR or other manager to check the files for information on things like whether the employer actually filed the immigration petition in question; whether you are actually employed there; your job position, duties, and salary, as well as those of other employees who hold similar positions at the company; and your qualifications for the job, academic or educational background, previous employment and immigration history, current address, and number of dependents in the United States. The officer may also demand specific documents, such as payroll records, pay stubs, an organizational chart, and more.
8. Reopen or Appeal an Denied H-1B Application or H-1B Extension
If you H-1B application is denied by USCIS, you can consider to reopen or appeal the USCIS' decision to deny your H-1B status application by filing USCIS Form I-290B - Notice to Appeal or Motion. You can download the form from USCIS website for free, but you need to pay a form filing fee, and need to check the USCIS website for the latest filing fee.
The most common reason for H-1B denial is that USCIS is not satisfied the employer submitted documents to establish the "employee- employer relationship." You can use the Form I-290B to appeal the denial, or file an Motion To Reopen (MTR) your case.
But filing the Form I-290B itself does not guarantee that your case will be reopened or be approved. If your case can be reopened, the appeal process can take several months or even more than half year. During the this time, you can not work in the U.S. with the H-1B status.
Many employers and alien H-1B employees faced with H-1B extension denials immediately want to argue with the USCIS about the decision. The Motion to Reopen or Reconsider provides no legal basis for alien employee to live and work in U.S. One of the driving factors in the decision to argue about a H-1B extension denial would be the incorrect belief that it provides the same benefits and privileges as a pending H-1B extension of status case. That is, employers and foreign nationals often assume that filing a motion to reopen or reconsider allows a foreign national to remain in the United States legally and continue to work while the motion is pending.
This is not correct. Under the regulations, filing a motion to reopen or reconsider does not stop the denial decision or its impact. If the motion is ultimately successful and the H-1B extension case is finally approved, then the situation will be resolved as if there had not been a denial. But, unless and until that happens, the H-1B extension case is still considered as having been denied. When the initial filing contains fatal flaws that make it not approvable under law, it remains as a denial - with or without the motion. It is important not to wrongly assume that the impact of a denial is eliminated by filing such motions.
9. The H-1B Laid-Off and "Grace Period"
An H-1B visa holder should work for the sponsoring H-1B petitioner. If the employment ends, the H-1B employment condition is no longer satisfied, and therefore the alien employee is no longer in a lawful nonimmigrant status in United States. The terminated H-1B visa holder can be able to port to another employer subject to certain conditions.
There is no automatic 10-day or other grace period for terminated employees holding H-1B status, so once the H-1B worker is no longer in a H-1B status, the alien many need to depart from the United States. Some H-1B visa holders believe that there is a USCIS policy giving a 60-day grace period to laid-off H-1B aliens during which he or she can look for a job, and the USCIS is required to approve a new H-1B transfer petition if it is filed within 60 days.
According to USCIS, the H-1B nonimmigrant is admitted into U.S. to be employed by the H-1B visa petitioner. If such employment ends, the previous employment conditions no longer exist, and the H-1B employee is no longer in a lawful nonimmigrant status. Thus, the H-1B visa or status holder may not be able to transfer to another company, with certain exceptions.
Therefore, there is no such 60-day or even 10-day grace period for laid-off H-1B employees to find another job, once the H-1B alien is no longer in a lawful status in U.S., and may normally have to leave the U.S.
Depending on the alien's circumstances, the H-1B worker may be eligible to remain in the United States, because of a request for a change of status or for extension of stay that is filed while that alien is maintaining H-1B status, or with a pending status adjustment I-485 application. For a H-1B worker who has fallen out of status, USCIS will exercise discretion on a case-by-case basis to grant the extension or change of status despite the failure to maintain status.
If the H-1B employee has a pending Form I-485 adjustment application or has filed an application of change status (such as H-4), the H-1B alien may be eligible to remain in the U.S. However, USCIS may need to make a decision on a case-by-case basis, to grant the extension or change of status despite the failure to maintain status.
10. Changing Employer for Laid Off H-1B Employees With Advance Notice
To change employer without having to depart the United States, you need to find an U.S. employer to file USCIS Form I-129 (Petition for a Nonimmigrant Worker) for you, prior to being laid off.
The Form I-129 petition should be filed prior to the termination of your job, and you must have been maintaining valid H-1B status. If the I-129 petition is filed after your dismissal, you may have to return overseas to process your H-1B visa for the new employer.
11. Changing of Status - Cannot Have Two Nonimmigrant Status at the Same Time
Many people with an nonimmigrant status in United States sign up with another company and have no idea what their obligations and responsibilities are. These people may think "I want an H-1B status or H-1B visa because of the Green Card application and my L-1 employer would not sponsor me." But H-1B visa or status are not supposed to be obtained as an option for employment at some point in the future convenience of Green Card application. The H-1B petitions are supposed to be filed for specific job openings, not speculative employment.
If a H-1B application is filed in United States for requesting "Change of Status" and the alien applicant is given a Form I-797A with new I-94 card at the bottom, as opposed to Form I-797B with a request for U.S. Consular Notification abroad. After the H-1B status change approval in United States, the alien applicant can only work for the H-1B employer, and can no longer work for the L-1B employer. In another words, an alien worker definitely cannot have 2 nonimmigrant status (L-1B and H-1B in this case) in the U.S. at the same time, although an alien can potentially have 2 H-1B employers at the same time.
12. USCIS Policy Change for Some Computer Programmers to Apply for H1B Status
On March 2017, USCIS (United States Citizenship and Immigration Services) released a policy memorandum that may affect the ability of some foreign aliens employed as computer programmers to obtain H1B status.
The new memorandum specifically revokes previous memorandum, which had stated that a computer programmer position would generally qualify as a “specialty occupation”, and be eligible for approval of an H1B petition. The previous memorandum does not fully or properly articulate the criteria that apply to H-1B specialty occupation adjudications, also it did not accurately portray essential information from the USCIS Handbook that recognized that some computer programmers qualify for these jobs with only “2-year degrees.”
The new ISCOS memorandum advises that persons employed as computer programmers, particularly those in entry-level positions, may not be considered to be employed in a “specialty occupation,” and may not qualify for H1B status, because a bachelor’s degree in a specific field may not be required for the computer programmer position. The USCIS states in the memorandum that this is not a change in policy. However, the language of the memorandum does appear to present some new challenges to companies in the information technology field.
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