Under the law, H-1B status is designated for individuals employed in “specialty occupations,” requiring highly specialized knowledge, which has been equated to a U.S. bachelor’s degree or its equivalent.
Annual Lottery -When to File
The H-1B category has a limited quota of 58,200 per fiscal year, with an additional 20,000 available annually to individuals who have obtained Master’s or higher level degrees from a U.S. university. In times of over subscription, an application should be submitted during the first 5 business days in April for the Annual Lottery. Those obtaining H-1B quota numbers may only begin working on the H-1B on October 1st.
Labor Condition Application (LCA)
Before employers can file an H-1B petition with the United States Citizenship and Immigration Services (USCIS), they must first obtain an approved LCA from the Department of Labor (DOL). DOL requires employers to comply with certain requirements such as paying a required wage rate to the individual, posting of notices, maintaining a public access file, etc.
H-1B status is valid for a maximum of six years granted in two three-year increments. Petitions for H-1B status may be filed no sooner than six months before intended employment begins. If the employment terminates prior to the H-1B expiration date, the H-1B status is no longer valid. Additional extensions beyond the 6-year limit are permitted for individuals who have Labor Certifications that are 1 year old or more; or who have approved I-140’s and are waiting for immigrant (permanent resident) visa numbers to become available.
Changes In Employment
If the terms and conditions of the employer materially change, then the employer must file an amended petition to USCIS, which includes a new LCA. In some circumstances, an amended petition may not be required; however, the employer must still submit a new LCA with the DOL.
Return Transportation Expenses
Employers who prematurely dismiss an H-1B alien must pay the “reasonable costs” of the aliens return transportation abroad. The employer must pay the way back to his/her place of residence outside the U.S., not just to Canada or Mexico. If the alien terminates his/her employment, he/she is not considered to be dismissed and therefore the employer is not responsible for return transportation costs.