关于2010财政年度H-1B申请的问与答

 

Q: What is an H-1B? How to apply for an H-1B?

A: The H-1B is a nonimmigrant classification granted to a foreign worker who is employed temporarily in a specialty occupation, or a fashion model of distinguished merit and ability. For a step by step H-1B processing
flowchart, please see http://www.niwus.com/H-1B_procedure.html.

Q: What is a specialty occupation?

A: A specialty occupation requires theoretical and practical application of a body of specialized knowledge and at least a bachelor’s degree or its equivalent for entry into the occupation in the U.S. Examples of specialty occupation include, but are not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, etc.

Q: How does the USCIS determine whether a job is a “specialty occupation” for H-1B purposes?

A: When determining whether a specific position is a “specialty occupation”, the USCIS will look into the job title, the job duties to be performed by the foreign worker, and the complexity of the business, etc. For more information regarding the standards to determine specialty occupation, please read our special section on Standards to Determine Specialty Occupation at http://www.niwus.com/H1BSpecialty.html.

Q: How does the USCIS determine whether a baccalaureate degree is the minimum requirement for a specific occupation?

A: It is not enough that an employer requires bachelor’s degree for a specific position. Pertinent laws set some objective standards for determining whether a specific occupation requires a bachelor’s degree for entry into the occupation. For more information regarding the standards to determine the requirement of bachelor’s degree, please read our special section on Standards to Determine Specialty Occupation at http://www.niwus.com/H1BSpecialty.html.

Q: How do I know whether my job is a “specialty occupation”?

A: While some occupations are clearly “specialty occupations” as defined by laws and regulations, others are not so clear and the USCIS will make a decision on a case-by-case basis. For some professions such as computer programmer, general manager, librarian, consultant, designer, etc., determination of “specialty occupation” is an extremely complicated process and many factors should be considered. We suggest that H-1B
petitioners or beneficiaries consult with an experienced immigration attorney regarding their specific cases.

Q: How many new H-1B visas are available for the 2010 fiscal year?

A: The new H-1B visas available for FY 2010 are 65,000. In addition, 20,000 foreign workers who obtained advanced degree in the U.S. are exempted from the 65,000 cap.

Q: I obtained a Masters Degree from a Canadian university, can I use the additional 20,000 H-1B visas for advanced degree professionals?

A: No. The additional 20,000 H-1B visas are only granted to foreign workers who obtained advanced degree in the U.S.

Q: I obtained a Masters Degree from a U.S. university, but my graduate school major was not related to the job offer. My employer will file an H-1B petition based on my bachelor\'s Degree major. Can I use the additional 20,000 H-1B visas for advanced degree professionals?

A: Yes. As long as you have obtained an advanced degree in the U.S., you can use the additional 20,000 H-1B visas for advanced degree professionals.

Q: When can U.S. employers file new H-1B petitions under the 2010 FY cap?

A: The earliest date for U.S. employers to file new H-1B petitions under the 2010 FY cap is April 1, 2009.
      
Q: I am currently in H-1B status working in a company, am I subject to the annual cap if I change employment and my new employer files an H-1B petition in my behalf?

A: No, current H-1B workers who have used the H-1B quota are not subject to the annual cap.

Q: I was in H-1B status working in a company for a few months 3 years ago, and then I changed my status from H-1B to F-1 student. Now I found a job and my employer is willing to file H-1B for me, am I subject to the annual cap?

A: No, a foreign worker is not subject to the annual cap if he/she used the H-1B quota in the past 6 years.

Q: Who can file H-1B petition for a foreign worker?

A: H-1B petition must be filed by a U.S. employer. The U.S. branch or subsidiary of a foreign company is considered as a “U.S. employer” for H-1B purposes if its U.S. entity meets the following requirements: 1) it engages a person to work within the U.S.; 2) it has the authority to hire, pay, fire, and supervise employees; and 3) it has an IRS Tax ID Number, also known as Employer ID Number (EIN).

Q: What is Labor Condition Application (LCA)?

A: H-1B petitioning employer is required to file a Labor Condition Application (LCA) with the Department of Labor (DOL) attesting to a number of items, including payment of prevailing wages for the position, and the working conditions offered. The LCA must be certified by DOL before the H-1Bpetition is filed with USCIS.

Q: How long can a foreign worker be in H-1B status?

A: Under current law, a foreign worker can be in H-1B status for a maximum period of six (6) years at a time. After being on H-1B for six years, the foreign worker must remain outside the United States for at least one year before another H-1B petition can be approved. There are, however, a few exceptions to the six-year limit, which allow a foreign worker to extend their H-1B status beyond six years.
      
Q: Who can extend H-1B status beyond the six-year maximum period?

A: A foreign worker can obtain an extension of H-1B status beyond the 6-year maximum period if he or she meets one of the following conditions:

1. 365 days or more have passed since the filing of a Labor Certification (Form ETA-9089), or an employment-based immigrant petition (Form I-140) if Labor Certification is not required; or
2. An employment-based immigrant petition (Form I-140) has been approved but due to the retrogression of priority date, the foreign worker is unable to obtain green card.

Q: How can I extend H-1B status for one (1) year at a time beyond the six-year maximum period?

A: You will be able to extend H-1B status in one-year increments beyond the six-year limit if your Labor Certification application (Form ETA-9089) or your employment-based immigrant petition (Form I-140) has been pending for 365 days or more. Therefore, to be eligible for the one-year extension at a time, a Labor Certification application or I-140 petition must be filed before the H-1B reaches the 6th year.

Q: How can I extend H-1B status for three (3) years at a time beyond the six-year maximum period?

A: You will be eligible to extend H-1B status in three-year increments beyond the six-year limit if your I-140 petition has been approved but you are unable to obtain green card due to the retrogression of priority date.

Q: Can an H-1B employee work for more than one employer?

A: Yes, H-1B workers may work for more than one U.S. employer, but each employer involved must file an H-1B petition and the petition must be approved.

Q: Can I change H-1B employer?

A: Yes, you may change H-1B employers and at the same time keep you H-1B status, but the new H-1B employer must file a new H-1B petition for you properly before you begin working for the new employer.

Q: I am currently in H-1B status and will change employer. When can I work for the new employer?

A: According to the H-1B portability rule, you can start to work for the new employer after your new employer properly files the H-1B petition in your behalf. You do not need to wait till the new H-1B approval to change your employment. For more information about H-1B portability, please read our special section on H-1B Portability Issues Related to Change of Employer at http://www.niwus.com/H1BPort.html.

Q: What is H-1B visa’s “dual intent”?

A: Unlike other non-immigrant visas such as F and J that do not allow immigrant intent, H-1B visa has dual intent, which among other things, allows filing of immigrant applications without affecting their non-immigrant status.

Q: I am in F-1 status and have filed immigrant petition, can I change status to H-1B?

A: Yes, you may change status to H-1B even after you filed immigrant petition. Although H-1B is a non-immigrant visa, it allows immigrant intent and an H-1B petition cannot be denied on the immigrant intent basis.

Q: Must I work at all times to keep my H-1B status?

A: As long as the employer/employee relationship exists in compliance with the H-1B requirements, you are in valid status. Just like other workers, you may be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting your status.

Q: Is a part-time worker eligible for H-1B?

A: Yes, a foreign H-1B worker can work part-time, but the work hours must be specified in the H-1B petition.

Q: How are H-1B cases handled in your law firm?

A: H-1B cases, like other types of cases, are professionally handled by an experienced attorney in our law firm. At each step of the process, employers and beneficiaries will be contacted and advised by an experienced attorney, NOT a paralegal, law clerk, or legal assistant. For a step by step H-1B processing flowchart, please see http://www.niwus.com/H-1B_procedure.html.

Q: My employer plans to file an H-1B petition for me, but we do not know if I am qualified. How can you help us evaluate the chance of success?

A: If you are interested in filing H-1B and want to know your qualifications, please complete a brief H-1B Evaluation Questionnaire and email it with your resume to h1b@niwus.com. The H-1B Evaluation Questionnaire can be obtained from http://www.niwus.com/H-1B_Evaluation_Ques.html.

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刘宗坤律师（Z. Zac Liu, Esq.），法学博士（J.D., Valparaiso University Schoolof Law）、哲学博士(Ph.D., Peking University)，伊利诺伊州最高法院及联邦法院执照，曾担任Valparaiso University Law Review的编辑和审稿人， 著有中英文书籍多种，散见于中美各大学图书馆。执业以来，他已代理无数名来自世界各地的科研人员和专业人士成功获得绿卡及各类非移民签证，尤其在国家利益豁免（NIW）、特殊人才（Eb-1A）、杰出教授和研究员（EB-1B）、PERM 劳工证、H-1B工作签证等方面积累了丰富的经验。读者若有移民法律问题，可将简历发往zliu@niwus.com。刘律师会在两个工作日内对您的问题做出免费答复或评估。

白凯玲律师 (Kellie Pai, Esq.)，法学博士(J.D.，University of Houston Law Center)、文学学士(B.A., University of Texas at Austin),德克萨斯州最高法院执照，刘宗坤联合律师事务所专业移民律师。

Liu & Associates, PLLC
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