H-1B Visa allow dual intent. H-1B worker need not maintain a foreign residence in home-country, while on H-1B in the US.
A worker if already in the US may just change his visa status from another visa to an H-1B, without obtaining a stamped-visa from the U.S. Consulate abroad. However, if he leaves United States and travels abroad, he would require a visa-stamping before gaining an entry back into the United States.
It is NOT advisable to travel outside the U.S. until your application with USCIS is processed.
Yes. H-1B permits “dual intent”. So approval of a Labor Condition (PERM), or filing of an immigrant visa (“Greencard”) will not affect the H-1B petition (Cap or Cap-exempt).
Marching ahead with President Obama’s executive action on immigration reform the Homeland Security Department announced on Tuesday that as of May 26, it will begin granting work permits to the spouses of H-1B visa holders – skilled foreign workers who are seeking permanent resident status in the U.S.
Under existing laws, spouses of H-1B visa holders, many of whom are Indians, are not eligible to work legally.
Who is eligible?
Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:
- Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Have been granted H-1B (nonimmigrants seeking lawful permanent residence to work) status permitting to remain in the United States beyond the six-year limit on their H-1B status.
“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense. It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”
How to apply for spouse work permit (EAD)?
H-1B Spouses can start applying for work visa from May 26, 2015 with the U.S. Citizenship and Immigration Services (USCIS).
Under the rule, eligible H-4 dependent spouses:
- must file Form I-765, Application for Employment Authorization, with supporting evidence and
- the required $380 fee in order to obtain employment authorization and
When can dependent spouse start working?
Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an I-766, Employment Authorization Document (EAD), he or she may begin working in the United States.
USCIC, a division of DHS, estimates that as many as 179,000 foreigners will be eligible to apply for employment authorization under the new rule in the first year and 55,000 annually in subsequent years.”
Change Of Status and Timely Filing
- When a person present in the United States in one nonimmigrant (temporary) status wishes to engage in a primary activity permitted only under a different nonimmigrant status, a Change of Status (“COS”) is required to be filed with United States Customs and Immigration Service (“USCIS”). For example, if a tourist on B-2 visa decides to attend school, he would have to change his nonimmigrant status from B-2 to either F-1 or M-1 (“Student Visas”).
- Timely filing of the COS is one of the factors which affects outcome of the filing. Hence, a COS application must be properly filed before the your authorized stay (I-94) expires.
- It is recommend that you apply at least 45 days before your I-94 expires.
Options for Changing Status
There are two options to change your nonimmigrant visa classication:
- Consulate Processing
Under this option, you would have to leave the United States, and apply for the appropriate visa at a U.S. consulate abroad (which may require an approved nonimmigrant petition depending on the visa category).
Once your visa interview is approved, you would be able to reenter the United States in the new nonimmigrant classification.
- Change of Status while remaining in the United States
Under this option, a petition will have to be filed with USCIS to request a COS to a different non-immigrant classification. Once USCIS approves the COS, you will receive an approved I-797 Approval Notice with a new I-94. The I-94 will show the approved time you are permitted under the nonimmigrant classification in the United States.
Change of Status pending while I-94 has Expired
USCIS can take several weeks to approve a COS. In many cases, although you may have filed the COS with USCIS on time, because of the processing delays, your current I-94 might have already expired while you await a decision from USCIS on the pending COS.
There are two options:
- You can either continue staying in the United States awaiting COS decision from USCIS. You will have to then make your next move, based on the USCIS decision.
- You can leave the United States while COS decision is pending. However, once you leave the country, your change of status application is considered abandoned.
Will I accrue “Unlawful Presence”, if I continue staying in the United States after I-94 expiry, until my Change of Status Application is pending?
NO. Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your change of status application is pending if it was filed prior to the expiration of your I-94. Hence the 3/10 year bar for “unlawful presence” will not apply in your case, even if the COS is later denied.
Can I be placed under Removal Proceeding if my Change of Status Application is pending, and my I-94 has expired?
YES. Your lawful nonimmigrant status ends and you are considered “out of status” when your Form I-94 expires, even if you have timely applied to change your nonimmigrant status. Although, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your change of nonimmigrant status request. It is however, possible that Department of Homeland Security (“DHS”) may bring a removal proceeding against you, even if you have an application for change of status pending.
What happens when my Change of Status Application is Approved?
If your application for a change of status is approved, you will receive an approved I-797 Notice from the USCIS, along with a new I-94. The I-94 will be backdated and adjusted to the date your previous I-94 expired. As a result your status during the pendency of your COS application will then be considered to have been lawful.
Since your nonimmigrant visa classification has changed, the next time you leave the United States, you would have to schedule an appointment at the U.S. Consulate in your home country (or a Third Country, if allowed in a few situations), and get your visa stamped at the consulate, before you can be admitted in to the United States on the new nonimmigrant classification.
What happens if my Change of Status Application is Denied?
- If your application is denied, you should depart the United States immediately. If you continue staying in the United States, you will begin accruing “Unlawful Presence”, and a 3/10 year bar may be applied to all your future entries in the United States.
- Also, any nonimmigrant visa in your passport granted in connection with your classification will become void. Although, there wouldn’t be any stamp on your passport suggesting it is void, an entry would have been made in the computer systems making your visa void for future entry. So, for example if you have a 10 year multiple entry B1/B2 visa, and if you had applied for a change of status to F-1 which was subsequently denied, your B1/B2 would become void. Any future entries on B1/B2 without obtaining a new visa may be disallowed.
- If you wish to enter the United States in future, on same or different classifcation, you must submit a new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).
LCA Notice of Filing – Key Facts
An employer who is in process of employing H-1B workers, upon filing of Labor Condition Application (“LCA”) Form ETA 9035 or 9035E must:
- Provide notice of filing to the bargaining representative, if a Union exists in the employer’s business.
- Post the notice of filing in two or more conspicuous locations in the employer’s place of business, and/or at a client worksite if employee will be working at client’s place.
- LCA Notice of Filing requirements for an “H-1B” will include “E-3 and H-1B1” as well.
What will an LCA Notice of Filing consist of?
The notice may be the LCA itself or a document of sufficient size and visibility that indicates:
- That employer is seeking to employ H-1B worker(s)
- Number of H-1B worker(s) on the LCA
- Occupational classification H-1B worker(s) would be employed in
- Wage(s) offered
- Period of employment
- Location(s) at which the H-1B worker(s) will be employed
- That the LCA is available for public inspection
- Notice shall also clearly state where complaints may be filed by aggrieved parties, and will state: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”
What are the Posting Requirements for an LCA Notice of Filing?
- Notice must be posted in a least two conspicuous (“easily visible to everyone”) locations at each place of employment where any H-IB worker(s) will be employed.
- Notice must be posted on or within 30 days before the date the LCA filing and shall remain posted for a total of 10 days.
- Notice must be posted in areas where Wage and Hour and OSHA notices are posted.
LCA Notice of Filing Formats
- Hard Copy Notice
A hard copy notice shall be posted in at least two conspicuous (“easily visible to everyone”) locations at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity).
- Electronic Notice
- An employer cam provide electronic notice to employees in the “occupational classification” for which H-1B employee(s) are being recruited, through any means it normally communicates with employees. For e.g. an employer website home page, electronic bulletin board or an e-mail.
- If electronic notice of filing is sent through e-mail, it need only be sent once.
If posted on employer website (e.g., home page or electronic bulletin board), it should be “posted” for 10 days.
Where employees lack practical computer access, a hard copy must be posted in accordance with posting requirements. In alternative, the employer may provide employees individual copies of the notice.
Additional Notice of Filing Requirement for an “H-1B-Dependent Employer” or a “Willful Violator”
If the employer is an H-1B-dependent employer or a willful violator, and the LCA is not being used only for exempt H-1B worker(s), the notice of filing will set forth the nondisplacement and recruitment obligations to which the employer has attested, and also include the following additional statement:
“Complaints alleging failure to offer employment to an equally or better qualified U.S. applicant or an employer’s misrepresentation regarding such offers of employment may be filed with the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue, NW., Washington, DC 20530, Telephone: 1 (800) 255-8155 (employers), 1 (800) 255-7688 (employees); Web address: http://www.usdoj.gov/crt/osc.
Notice of Filing Requirements for H-1B employee(s) placed at worksites not previously listed on LCA
Where the employer places any H-1B employee(s) at one or more worksites not listed at the time of filing the application, but which are within the area of intended employment listed on the LCA, the employer is required to post electronic or hard-copy notice(s) at such worksite(s), as per notice of filing requirements, on or before the date any H-1B employee begins work at that worksite.
Providing LCA Filing Notice to the H-1B Employee
The employer shall provide the H-1B nonimmigrant with a copy of the LCA (Form ETA 9035, or Form ETA 9035E) certified by ETA and signed by the employer (or by the employer’s authorized agent or representative).
Notice must be provided no later than the date the H-1B employee reports to work at the place of employment.
If H-1B employee requests, the employer will immediately provide a copy of the cover pages, Form ETA 9035CP.
H-1B Employer Documentation of LCA Notice of Filing
H-1B employer should develop and maintain documentation to provide proof of notice of filing as follows:
- If a Union exists, copy of the dated notice and the name and address of the collective bargaining representative to whom the notice was provided.
- When a Union does not exist, employer shall note and retain the dates when, and locations where, the notice was posted and also retain a copy of the posted notice.
Labor Certification Application (“LCA”) and H-1B Filing
On April 15, 2009, the Department of Labor (“DOL”) launched its iCERT Portal, creating a new electronic system for the submission of Labor Condition Applications. The first step for an employer in an H-1B filing is to obtain an LCA certification from DOL. The LCA is completed on electronic Form ETA 9035E through the DOL iCERT Visa Portal System.
United States Customs and Immigration Service (“USCIS”) does not accept an H-1B petition without a certified LCA. USCIS begins accepting H-1B Cap petitions on April 1, and there has been an enormous rush in H-1B filings in the past few years. The Cap quota is usually exhausted in the first five days leading to a lottery system. Not having a Certified LCA on time can render an H-1B employer unable to file on time, and as a result not qualifying a petition to be accepted in the H-1B cap lottery system.
First Time H-1B Employers (Petitioners)
H-1B employers who routinely file LCAs through the iCERT portal will have their Federal Employer Identification Number (FEIN) already registered and verified by the Office of Foreign Labor Certification (“OFLC”), a division of DOL. However, OFLC might not have FEINs for certain employers registered and verified in their database–especially first-time H-1B filers.
For these H-1B employers, LCAs will not be certfied unless the employer’s Federal Employer Identification Number (FEIN) can be verified by the OFLC. If the employer or their attorney tries submitting an LCA through the iCERT portal, the OFLC system would flag the FEIN entry as an error, due to non-verification. Employer or their attorney representative might get an email from OFLC, that the LCA would not be certified, and further instructions would be provided to submit by fax, e-mail as a PDF, or mail to the Chicago NPC, documents that indicate the validity of the FEIN.
Documents an H-1B Employer should submit for FEIN Verification
- Letter from IRS noting assignment of the FEIN
- Federal or state tax return with preprinted label, or a pre-printed tax coupon
- Documentation from employer’s financial institution showing FEIN
- Articles of incorporation, business license, or other certifications of business existence
- State corporate registration documents
- Other official or government documents
- Other documents showing FEIN and name of employer
While it is not necessary to submit all the documents in the above list, atleast two documents showing the FEIN would suffice.The FEIN should be clearly visible on the visible on the supporting document.
Submission of FEIN Verification Documents to OFLC/DOL
Employer or their attorney representative should email the scanned documents to DOL, using the address LCA.Chicago@dol.gov. The subject of the email should be “LCA Business Verification Team.” Please note using any other subject line is used, might lead to a significant delay in FEIN verification.
Why should an H-1B Employer begin FEIN Verification way ahead of time?
An employer who intends to file for H-1B, does not have a wait for a specific time to apply for FEIN verification with the DOL. It can be done at any time. However, during the H-1B cap filing season, OFLC/DOL is backlogged with tons of FEIN Verification requests. As a result, it can sometimes take longer than 5-6 days to get a FEIN Verification. There can also be some delay if DOL requests for additional documents for verification. Hence is it is recommended that H-1B employers not wait until the end, but rather get the verification done way ahead of time.
H-1B Concurrent Employment Key Facts
- An H-1B employee can simultaneously work for two different H-1B employers (petitioners). This is also known as “Concurrent Employment”.
- Each H-1B employer/petitioner must file a separate Labor Condition Application (“LCA”), and subsequently an H-1B petition.
Each concurrently filed H-1B petition is individually subject to a quota (unless employers are cap-exempt).
H-1B employee may work:
- Full-time for one employer, and part-time for another;
- Part-time for one or more employers.
Each H-1B petition will be approved on its own merit. The H-1B employee can work in with different employers at the same time, as long as:
- Job Position is still a specialty occupation requiring a relevant bachelor’s degree or foreign equivalent.
- H-1B employee is a “professional” who qualifies to perform skills required by this specialty occupation by way of specialized knowledge and bachelor’s degree or foreign equivalent.
- It is always advisable that the H-1B employee works in an occupational classification which is similar or very closely related, although with different employers at the same time.
Scenarios for Concurrent Employment
Lets say, for example, an H-1B employee has two approved petitions filed by both, Employer A and Employer B. She initially elects to take up employment with Employer A, but later becomes dissatisfied and switches to Employer B.
Would Employer B’s petition require an H-1B Amendment?
NO. New or amended petition will not be required, as long as there is no “material change” in the terms and conditions of Employer B’s employment, from the originally filed petition.
Could she take a Leave of Absence from Employer A, work for Employer B and then return back to work for Employer A?
YES. If petitions for both Employer A and Employer B have been approved for an H-1B employee, she could take a 6-8 month leave of absence from Employer A to work for Employer B, and then resume working for Employer A without filing a new H-1B petition.
It is important to note that in each of the above scenarios, the original H-1B petition had not been revoked, either by USCIS or by Employer A. Under H-1B regulations, however, an employer is supposed to promptly notify USCICS when the employee is no longer working with the employer, at which time USCIS may then revoke the petition.
Although Employer A faces a risk of front-pay for the term of the LCA, and should have revoked the H-1B petition for a bonafide termination, in this instance no penalty can be applied, and the petition filed by Employer A will remain valid.
Does an H-1B Employee have more than one Visa if employed by more than one Employers?
NO. An H-1B employee can work for multiple employers when in the United States. However, he/she may not hold more than one valid visa in the same classification (here it is H-1B) at the same time. In the above scenarios, even if H-1B employee was outside of the United States when the petition for Employer B was approved, she could be readmitted on the visa issued for Employer A.
Working for Cap Exempt and Non-Exempt Employers simultaneously
An H-1B employee can work simultaneously for a cap-exempt and a non-exempt employer on two different H-1B petitions. However, at the time of filing an H-1B petition with a non-exempt employer:
- If H-1B employee remains continued to be employed with the cap-exempt employer, he/she will not be counted toward the cap.
- If the H-1B employee has “ceased” to be employed in a cap-exempt position, then the he/she will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number becomes available.
- If USCIS determines that an H-1B employee has “ceased” to be employed in a cap-exempt position after a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available.
LCA Key Facts
- Employer (“Petitioner”) must obtain a certification from Department of Labor (“DOL”) that it has filed a Labor Condition Application (“LCA”) in the occupational specialty. Before an H-l B petition can be filed the employer must obtain certification of an LCA.
- The employer must have a valid Federal Employment Identification Number (“FEIN”) in order to file for an LCA.
- LCA Applies to all H-1Bs including fashion models and physicians, but not Department of Defense (“DOD”) category.
- LCAs are also for H-1B1s and E-3s.
- The LCA is completed on electronic Form ETA 9035E through the DOL iCERT Visa Portal System.
- DOL no longer accepts LCAs by fax but may allow mail-in where employer has a physical disability or lacks internet access.
- Employers with physical disabilities or those who lack internet access must submit a written request to DOL for permission to submit the LCA via U.S. mail, establishing why the employer is unable to file electronically.
LCA Certification Timeline
- The LCA will not be accepted by the Department of Labor (DOL) more than 6 months before the beginning date of employment.
- Unless the DOL finds the LCA “incomplete” or “obviously inaccurate”, the agency is directed to provide the certification within (7) seven working days of the filing of the application.
- If no email notification of a final determination is received within (7) seven working days, employer can check with ICERT Portal System and LCA Help Desk at LCA.Chicago@dol.gov.
What does an LCA contain?
- It shall contain the number of workers sought, the occupational classification for each, the prevailing wage and method for determining it, the wage rate, location of worksite(s), hours of work (full-time or part-time).
- It will also indicate if it is filed for a new case, a transfer case or an extension with the same employer case.
- It can be for one or more workers
LCA Availability for Inspection
Employer must make LCA available for public inspection within (1) one day of filling with DOL.
LCA submission with H-1B Petition
- LCA (“ETA 9035E”) must be printed and signed by the employer immediately after Employment and Training Administration (“ETA”) provides the electronic certification.
- The signed form must be maintained in the employer’s file, a copy must be maintained in the public access file, and another copy submitted with the H-1B petition.
LCA for multiple Worksites
- Although, the LCA is be limited to a single occupational classification (job classification), and part-time or full- time work; it can list multiple locations where the H-IB employee will work.
- LCA should list the prevailing wage for each worksite, and employer should pay atleast highest of the prevailing wage of all worksites.
LCA for Part-time and Full-time Work
- LCA may cover either full-time or part-time work hours.
- A single LCA cannot combine full-time and part- time positions.
LCA must be provided to the Employee
The employer shall provide a signed copy of the certified LCA to the H-1B employee no later than the date he or she reports to work.
LCA Posting Requirements
Notice of the LCA must be posted at the employer’s work place and/or client worksite. If there is a union it must be given to the union before filing the LCA.
LCA Public Access File
An employer must maintain a public access file accessible to interested and aggrieved parties. The public access file must be available at either the employer’s principal place of business or at the worksite.
How long should the LCA records be retained?
- All records must be retained (1) one year beyond the LCA period or if complaint is filed, until the complaint is resolved.
- Payroll records must also be retained for these periods but no less than the 3-year period beyond the LCA period.
Can an LCA be amended?
No there is no provision of amending an LCA. If there is a “material change” in the employment, employer must file a new LCA.
Can an LCA be withdrwan?
- An employer may withdraw an LCA through the ICERT Portal System, via email or by written notice.
- An employer may withdraw the LCA at any provided the employee benefiting from the LCA is not currently working, and Wage and Hour Department (“WHD”) has not commenced an investigation.
- Termination that is properly conducted (bonafide) will also end the LCA validity.
What constitutes proper termination of an H-1B employee?
Termination and layoff of H-1B employees often put forth questions as to whether the termination was bonafide. H-1B regulations can impose strict penalties on employers for not properly terminating employees, resulting in unnecessary legal battles and costs, and possible future disqualification from the H-1B program for the employers.
This post will layout the regulations, and give an insight into proper procedure to be followed in an H-1B employee’s termination. H-1B employers can be found liable for back wages, and an employee may not be considered properly terminated for purposes of cutting off backpay and frontpay unless the employer abides by the following steps:
- Termination Letter
Employer should properly and clearly notify the H-1B employee of the termination. This should ideally be in form of a termination letter. The letter should clearly state employee’s last day of work.
Letter notifying USCIS
Employer should notify United States Customs & Immigration Service (“USCIS”) that the employment relationship has been terminated as of the last date of H-1B employee’s work. This notice should be sent via a letter.
Offer Transportation Cost
Employer should offer the H-1B employee with payment for transportation home, in the termination letter. This could be in form of a payment for air ticket reimbursement, if the employee needs to leave for his/her home country. If, however, the H-1B employee voluntarily resigns, transfers his or her employment to another H-1B employer, or changes his or her status to another lawful visa classification, the travel-reimbursement requirement is nullified.
All the 3 steps listed above must be followed by an H-1B employer for proper employee termination. None of these steps are optional, and not complying with even a single step could result into employer being liable for back pay and/or pay until the end of Labor Condition Application (“LCA”) period.
Department of Labor (“DOL”) Compliance for proper Termination
USCIS and DOL are two separate government agencies who are responsible for H-1B program enforcement. Since DOL primarily deals with labor violations, it is primarily involved in frontpay/backpay issues and also termination/layoffs of H-1B employees. Any complaints regarding H-1B terminations are usually dealt by DOL investigators.
In order to comply with DOL, employers should withdraw the LCA, as soon as the H-1B employee is terminated. This will notify DOL of the termination.
So why is proper bonafide termination of an H-1B employee so important?
As discussed in the section above, not terminating an H-1B employee could create unnecessary legal hassles for the employer. However, more importantly improper termination can also put the H-1B employee’s status in jeopardy. In many instances, the H-1B employee might not be aware of his termination, and be under an impression that he/she is still employed by the employer. Since the employee has stopped performing specialty occupation duties, as such he/she would be considered out-of-status. Further, by the time the employee finds out of the termination, it might be a little too late, and can make it difficult for him/her to transfer H-1B visa with another employer.
Recent Cases where Employer paid heavy penalty for not following proper steps in an H-1B Employee’s Termination
In a recent DOL case, the Wage and Hour Department (“WHD”) Administrative Law judge (“ALJ”) awarded more than $150,000 in back wages, interest, and legal fees to a single H-1B employee who was wrongfully terminated by his California-based employer after only four months of H-1B employment. The basis for such a significant award was, in part, punitive, as the judge found that the employer had unlawfully retaliated against the H-1B worker upon learning that he filed a grievance with the DOL’s Wage and Hour Division. The H-1B worker alleged in his grievance that he had been unlawfully “benched” and unpaid for much of his first four months of employment. Because the employer was unable to evidence proper notification to the USCIS of the H-1B worker’s termination and, further, was unable to demonstrate it had offered to reimburse the terminated H-1B worker the cost of his travel back to his last residence abroad, the ALJ found the employer failed to effectuate a bonafide termination. The ALJ ordered the employer to pay the H-1B worker the $60,000 yearly salary listed in the LCA for the remaining two years and eight months of the H-1B worker’s “authorized period of stay” in the LCA.