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. 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.
4. 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.
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