H-1B Work Visa Lawyers
The H-1B visa is a nonimmigrant visa that allows an international worker in a specialty occupation to come to the U.S. and work. A specialty occupation is one that requires a bachelor's degree or its equivalent in a specific specialty, for example the sciences, medicine, health care, education, biotechnology, computer technology, and business.
Proof for Recapture of Unused H-1B Visa Validity:
Section 106(a) of American Competitiveness in the Twenty-First Century Act of 2000 ("AC-21"), PL 106-313, §106(a), allows extensions of H-1B beyond the 6-year H-1B validity period (in 1-year increment) provided a labor certification, I-140, or employment based adjustment application, has been filed at least 365 days prior to the end of the 6-year H-1B validity.
Depending on when the labor certification process is initiated and given the length of time it takes, there are times when the labor certification, I-140, or I-485 cannot be filed 365 days prior to the end of the 6-year H-1B validity.
In such instances, it is helpful to investigate whether the alien has made trips outside of the United States and whether recapturing of those dates prior to the end of 6 years of H-1B, will artificially push the end date of H-1B, to qualify alien for 106a extension. Additionally, practitioners may also investigate, where feasible, the option of sending the alien abroad during the current period of H-1B status to gain additional time for recapture for meeting the 106(a) extension requirement.
For recapture of unused H-1B validity, it is essential to provide an exact list of dates of each exit and re-entry. Given that DHS's electronic entry and exit data may not always be accurate, it is necessary to offer objective evidence such as:
- 1. entry and exit stamps in the passport,
- airplane boarding passes, airplane e-tickets,
- frequent flier statements, and
- credit card charges as evidence of dates of travel abroad.
Documentation of entries and exits is particularly critical when travel to contiguous countries, such as Canada or Mexico, are involved. It may be helpful when entering and exiting Canada or Mexico to voluntarily request that a date stamp be placed in the passport.
Remember that under 8 C.F.R. section 214.2(h)(13)(v) recapture is not necessary for certain H-1B visa holders, such as those who do not reside continuously in the U.S. and engage in employment that:
- 1. is seasonally or intermittent;
- is for an aggregate period of six months or less per year; or
- is part-time (and the employee resides abroad and regularly commutes to the U.S).
In these situations, extensions must clearly demonstrate that the employee qualifies for the exception to the time limitation. The regulation requires "clear and convincing proof," such as exit and entry records, copies of tax returns of the employee, and records demonstrating employment abroad.
The H-1 Visa Cap
H-1B work visas are in high demand because only 65,000 are issued each fiscal year (Oct. 1 - Sept. 30). In addition, each year 6,800 skilled foreign workers from Chile (1,400) and Singapore (5,400) are issued an H-1B1 visa. There is also a cap of 20,000 for US Master's Degree holders.
H-1B visas are valid for a three-year period and can be extended for one additional three-year period. After a worker has resided in the U.S. for six continuous years, he or she must leave and remain outside the U.S. for at least one year before another H-1B visa can be issued.
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Acting as sponsors for the foreign workers, employers file petitions to obtain H-1 and H-1B visas. Before filing the petition with the USCIS, however, an employer must obtain a work permit by submitting a Labor Condition Application (LCA) to the U.S. Department of Labor.
Employers must attest that they are not displacing American workers by hiring a skilled foreign worker, that they are complying with prevailing wage levels, that they will not replace a laid-off worker with an H-1B for a certain period of time, and will not employ the H-1B during a strike or lockout, among other attestations.
Once the LCA is approved, the employer submits it along with a completed petition for an H-1 or H-1B visa.
The immigration attorneys of NPZ Law Group are skilled at helping businesses of all types and sizes meet their workforce needs by hiring skilled foreign workers. We have filed hundreds of H-1B petitions for our clients, from international students to small companies to large, publicly traded corporations. To discuss your H-1B visa needs with an experienced immigration lawyer, please contact our law firm today.
Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the "Employee-Employer Relationship" in H-1B Petitions; Published Jan. 13, 2010; revised Aug. 2, 2011 and March 12, 2012.
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