Foreign nationals being or to be employed by a US employer in specialty occupation is eligible for H1B status/visa. This type of status/visa is capped at 65,000 per fiscal year less the Free Trade Visas for Chile and Singapore resulting 58,200 H1B visas. Notably, South Korea, one of US’s FTA partner county is not allotted for this extra cap.
1. US Employer sponsor for H1 visa
A applicant for H1B must be sponsored by a US employer. The employer does not, however, have to be a US citizen. The owner of the US employer can be a foreign nationals, but the company should be established by US law in US territory.
Note) Self-Petition is not allowable any longer. USCIS recently issued a memorandum to confirm their position in relation to self-petition of H1B. The memorandum clarify that H1B sponsoring employer shall establish by evidence that employer-employee relationship exists to be eligible for H1B application.
2. Annual Capped
H1B visa is capped at 65,000 annually in a fiscal year beginning April 1 of each year. Only new employment is covered under the cap. Renewal is exempted from the annual cap.
Applicant’s major shall be directly related to the position proffered for H1B. The relevant regulation stipulates that the H1B sponsored position shall require theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry to the occupation in the U.S.
4. Prevailing Wage Requirement
H1B sponsoring employer shall pay the H1B employee wage at prevailing wage or higher. The prevailing wage is determined by Department of Labor on the request of H1B employer. The prevailing wage must be obtained before Labor Condition Application is filed with DOL.
5. Labor Condition Application (LCA)
As explained above, H1B employer shall abide by Labor Condition Application as to terms and conditions of hiring foreign H1B employees. LCA shall be obtained ahead of filing H1B applications with USCIS.
PAYMENT OF FEES BY EMPLOYER
1. Fee to the Department of Homeland Security
The employer must pay three sets of fees to USCIS. First, they must pay the filing fee of I-129 and if the employee is abroad the additional fees at the consulate. Second, the employer must pay a fee of 1,500 unless she is an employer with not more than 25 full-time equivalent employees and then she must only pay $750.00. Third, the employer is now required to pay to the government a $500.00 fraud prevention and detection fee. INA §214 (c )(12).
2. Non-profit organization related to or affiliated with any such institution, a nonprofit entity which engage in established curriculum-related clinical training of students registered at any such institution, a nonprofit research organization or a governmental research organization are exempt from the fee.
1. Portability of H1B
New employment upon filing petition. A H1B employee who wants to change her employment, she can do so if she files new H1B for changing employer first. She does not have to wait to begin new employment until the new H1B is adjudicated.
2. Termination of H1B
Any H1B employees being terminated her employment must leave the US within 15 days after the employment is officially terminated. There is NO Grace Period allowed for the leaving H1B employees.
Cost of Transportation to H1B employee’s home county.
If the leaving H1B employee choose to return to her home country instead of seeking for a new employment thereafter can request her employer to pay for the transportation cost to her home country.
3. Renewal of H1B
Initial issuance of H1B is valid for three years. And H1B is renewable for another three years. But, H1B is not allowed not more than 6 years in lifetime subject to extension of one year increments if the H1B employee filed immigration petition and application for adjustment of status which are pending with USCIS for more than 6 months for process.
4. Beginning of Employment
This is important issue in the light of how foreigners can continue to work with the H1 employer or at least remain in the U.S when her OPT expires before October 1. The foreign students who are allowed to work by virtue of OPT can work until her OPT expires. However, if the OPT expires after April 1, the OPT student who filed H1B application can remain in the US continuing her work in her current position. If OPT expires before April 1 and not reaching the 60 days of Grace Period of F1 status, she should leave the US within the 60 days after her OPT expires.