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| FEATURED ARTICLES ON IMMIGRATION GCLaw Newsletter |
On April 1, the U.S. Department of Citizenship and Immigration Services (USCIS) started accepting H-1B
applications for the Fiscal Year 2008 (i.e., October 1, 2007 to September 30, 2008). There are only 65,000 visas
generally available. Those visas are assigned to the applications in the order received. So logically, those wishing
to file should act sooner rather than later. From what has occurred during the last two years, it can be estimated
that any first time H-1B applications should probably be made before mid-July 2008. Any filings after that date risk
missing the quota.
For those not familiar with H-1B requirements, a brief primer will be provided.
Numerical Limitations
The first issue to consider is the availability of an H-1B visa number. For those extending their H-1B status,
transferring to another H-1B employer, or filing for a second concurrent H-1B employer, the visa has generally
already been allocated, so quotas are not an issue. In other words, once an employee is granted first-time H-1B
status, the allocated visa number is generally good for a maxi-mum of six years, absent a departure from the U.S. for
more than a year. There are some other exemptions to the yearly first-time H-1B numerical limitations, and legal
advise should be sought be-fore concluding first-time H-1B is no longer an option—particularly for those intending
to work for colleges and for those having earned a master’s degree from a U.S. university.
Job Requirements
The second issue to consider when seeking H-1B work authorization is whether the prospective job can be classified
as a “specialty occupation.” Specialty occupation is a term of art and open to much discretion by the Service
officers adjudicating an H-1B application. Experience and attention to the overall facts of a case serve as the
best indicators for whether a job falls within the definition of a “specialty occupation.” Legally, a specialty
occupation is one that requires the theoretical and practical application of a body of specialized knowledge and
a bachelor's degree or the equivalent in the specific specialty (e.g., occupations in such fields of human endeavor
as: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education,
business, accounting, law, theology, and the arts).
Qualified H-1B Persons
The third issue to consider is whether the person seeking H-1B employment is qualified for that status. Generally, this
requirement is straightforward to satisfy. If the prospective employee has at least a U.S. Bachelor degree or its
equivalent in the discipline or narrow range of disciplines that are required for entry in the specialty occupation,
then generally the prospective employee is qualified for H-1B. However, if the specialty occupation also requires
licensing (usually as determined by state laws), then such licensing will have to be obtained before being granted
H-1B status.
At this point, it is worth noting that there are additional qualification requirements to satisfy with regard to health
care workers who will be directly or indirectly involved in providing patient care. Namely, those health care
workers, before entry into the United States, will be required to obtain Visa Screening (i.e., prove English
proficiency and pass certain professional exams).
Foreign degrees and experience are very much part of the consideration in making evaluation of whether a
prospective employee has the equivalent of a U.S. Bachelor degree. Generally, the Service will acknowledge that
three years of experience satisfy one year of academics. But, in practice demonstrating at least three years of
college training is advisable.
Labor Condition Applications
The prospective H-1B employer must be ready to pay the prevailing wage in the specialty occupation as defined
for the geographic employment location. The prevailing wage can be determined from various wage databases.
The Department of Labor is charged with certifying whether the pro-posed wage is indeed equal to the prevailing
wage in the specific geographic work location. For example, an engineer might need to be paid $50,000 in the
Houston, TX area, while the same position might need to be paid $100,000 in the San Jose, CA area. The
prospective employer makes the necessary attestation of readiness to pay the prevailing wage, for a defined
number of hours (generally 40 hours a week), in a Labor Condition Application filed with the Department of Labor.
Timing Restrictions
Grant of H-1B status is given in maximum increments of three years. Total maximum H-1B status is generally six
years. As common to most rules, exceptions may apply. For one, those who have already been on L or other H
status (e.g., as a dependent H-4), they will generally have that time counted toward the six year maximum. For
another, those who file an I-140 petition or Labor Certification, such that it will be pending 365 days by the end of
the sixth year, can extend H status beyond the six years in one-year increments. Other exceptions and issues to the
general six-year rule may apply—such as credit for time spent outside the U.S. and approval of an I-140 petition.
Legal advice should be sought on those and other details, which could not be discussed in such a short article.
A word of caution is in order for first time H-1B filers. The mere timely filing of an H-1B application does not
guarantee ultimate approval for change of status even if all the above elements are met. Status must be proved
from the time of filing to October 1, 2007. No status gap can exist. This is a critical issue often overlooked in the
rush to file.
The above requirements should provide a basic understanding of the purpose and requirements for filing H-1B
applications. H-1B applications provide a first step for those seeking short-term employment. However, for those
seeking permanent employment, additional filings will be required, most likely by way of a labor certification
application. Fortunately the Service recognizes the con-cept of dual intent with regard to H-1B employment. As
such, an H-1B holder may maintain non-immigrant H-1B status while also pursuing immigrant status/permanent
residency.
German Castillo
Attorney
applications for the Fiscal Year 2008 (i.e., October 1, 2007 to September 30, 2008). There are only 65,000 visas
generally available. Those visas are assigned to the applications in the order received. So logically, those wishing
to file should act sooner rather than later. From what has occurred during the last two years, it can be estimated
that any first time H-1B applications should probably be made before mid-July 2008. Any filings after that date risk
missing the quota.
For those not familiar with H-1B requirements, a brief primer will be provided.
Numerical Limitations
The first issue to consider is the availability of an H-1B visa number. For those extending their H-1B status,
transferring to another H-1B employer, or filing for a second concurrent H-1B employer, the visa has generally
already been allocated, so quotas are not an issue. In other words, once an employee is granted first-time H-1B
status, the allocated visa number is generally good for a maxi-mum of six years, absent a departure from the U.S. for
more than a year. There are some other exemptions to the yearly first-time H-1B numerical limitations, and legal
advise should be sought be-fore concluding first-time H-1B is no longer an option—particularly for those intending
to work for colleges and for those having earned a master’s degree from a U.S. university.
Job Requirements
The second issue to consider when seeking H-1B work authorization is whether the prospective job can be classified
as a “specialty occupation.” Specialty occupation is a term of art and open to much discretion by the Service
officers adjudicating an H-1B application. Experience and attention to the overall facts of a case serve as the
best indicators for whether a job falls within the definition of a “specialty occupation.” Legally, a specialty
occupation is one that requires the theoretical and practical application of a body of specialized knowledge and
a bachelor's degree or the equivalent in the specific specialty (e.g., occupations in such fields of human endeavor
as: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education,
business, accounting, law, theology, and the arts).
Qualified H-1B Persons
The third issue to consider is whether the person seeking H-1B employment is qualified for that status. Generally, this
requirement is straightforward to satisfy. If the prospective employee has at least a U.S. Bachelor degree or its
equivalent in the discipline or narrow range of disciplines that are required for entry in the specialty occupation,
then generally the prospective employee is qualified for H-1B. However, if the specialty occupation also requires
licensing (usually as determined by state laws), then such licensing will have to be obtained before being granted
H-1B status.
At this point, it is worth noting that there are additional qualification requirements to satisfy with regard to health
care workers who will be directly or indirectly involved in providing patient care. Namely, those health care
workers, before entry into the United States, will be required to obtain Visa Screening (i.e., prove English
proficiency and pass certain professional exams).
Foreign degrees and experience are very much part of the consideration in making evaluation of whether a
prospective employee has the equivalent of a U.S. Bachelor degree. Generally, the Service will acknowledge that
three years of experience satisfy one year of academics. But, in practice demonstrating at least three years of
college training is advisable.
Labor Condition Applications
The prospective H-1B employer must be ready to pay the prevailing wage in the specialty occupation as defined
for the geographic employment location. The prevailing wage can be determined from various wage databases.
The Department of Labor is charged with certifying whether the pro-posed wage is indeed equal to the prevailing
wage in the specific geographic work location. For example, an engineer might need to be paid $50,000 in the
Houston, TX area, while the same position might need to be paid $100,000 in the San Jose, CA area. The
prospective employer makes the necessary attestation of readiness to pay the prevailing wage, for a defined
number of hours (generally 40 hours a week), in a Labor Condition Application filed with the Department of Labor.
Timing Restrictions
Grant of H-1B status is given in maximum increments of three years. Total maximum H-1B status is generally six
years. As common to most rules, exceptions may apply. For one, those who have already been on L or other H
status (e.g., as a dependent H-4), they will generally have that time counted toward the six year maximum. For
another, those who file an I-140 petition or Labor Certification, such that it will be pending 365 days by the end of
the sixth year, can extend H status beyond the six years in one-year increments. Other exceptions and issues to the
general six-year rule may apply—such as credit for time spent outside the U.S. and approval of an I-140 petition.
Legal advice should be sought on those and other details, which could not be discussed in such a short article.
A word of caution is in order for first time H-1B filers. The mere timely filing of an H-1B application does not
guarantee ultimate approval for change of status even if all the above elements are met. Status must be proved
from the time of filing to October 1, 2007. No status gap can exist. This is a critical issue often overlooked in the
rush to file.
The above requirements should provide a basic understanding of the purpose and requirements for filing H-1B
applications. H-1B applications provide a first step for those seeking short-term employment. However, for those
seeking permanent employment, additional filings will be required, most likely by way of a labor certification
application. Fortunately the Service recognizes the con-cept of dual intent with regard to H-1B employment. As
such, an H-1B holder may maintain non-immigrant H-1B status while also pursuing immigrant status/permanent
residency.
German Castillo
Attorney
| H-1B Work Authorization For the College Degreed By Atty. German Castillo |
| Foreign degrees and experience are very much part of the consideration in making evaluation of whether a prospective employee has the equivalent of a U.S. Bachelor degree. Generally, the Service will acknowledge that three years of experience satisfy one year of academics. But, in practice demonstrating at least three years of college training is advisable. |
To schedule a consultation, please call tel. (281) 980-1385 or (281) 340-2027
German Castillo Law Office, P.C.
14090 Southwest Freeway, Suite 300, Sugar Land, TX 77478
Tel (281) 340-2027; (281) 980-1385; Toll Free Fax 1 (866) 416-0059 California Office: Tel (650) 270-5239
14090 Southwest Freeway, Suite 300, Sugar Land, TX 77478
Tel (281) 340-2027; (281) 980-1385; Toll Free Fax 1 (866) 416-0059 California Office: Tel (650) 270-5239
All contents copyright © German Castillo Law Office 2005-2006. All rights reserved.
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GERMAN CASTILLO LAW OFFICE, P.C.
| A P r o f e s s i o n a l C o r p o r a t i o n |
Immigration Law and Intellectual Property