Hablamos En Español
Toll-Free: (949) 540-6704 Phone: (800) 242-2151
Phone: (949) 540-6704 Toll-Free: (800) 242-2151

Legal Representation That You Can Trust

Orange County Temporary Worker Visa Lawyers

Immigration Protest

H-1B temporary professional worker visas are nonimmigrant visas for employers to bring “specialty occupation workers” or professional workers from abroad to the U.S. The Immigration and Nationality Act of 1990 and the American Competitiveness & Workforce Improvement Act of 1998 made significant changes in the employer’s obligations with respect to obtaining and maintaining the H-1B visa. Furthermore, there are positive and negative aspects in filing an H-1B visa with respect to practicality and usefulness of such visa. Thus, employers should consult an experience immigration attorney prior to filing an H-1B.

Who May File an H-1B Temporary Visa?

In filing for an H-1B visa, the employer is the petitioner. The employer must have a U.S. taxpayer identification number (EIN). Foreign businesses not established in the U.S. cannot use this visa to bring employees to the U.S.

What are the Procedures in Applying for an H-1B Visa?

First, an employer must submit to the Department of Labor (DOL) a Labor Condition Application, Form ETA 9035 or ETA 9035E and a cover page (Form ETA 9035CP), containing the full attestation statements. After obtaining DOL certification of an LCA, the employer may submit the H-1B nonimmigrant visa petition (Form I-129, including Form I-129H supplement), together with the certified LCA, to the USCIS, requesting H-1B classification for the foreign worker. If USCIS approves the H-1B application, the foreign national may then apply for an H-1B visa abroad at a Consulate Office of the Department of State. If the foreign national is already in the United States in a status other than H-1B, he/she may apply to change status to an H-1B (Form I-539).

How Can Garg and Associates, PC Assist You?

Filing an H-1B application can be time consuming and confusing for employers and employees alike. The experienced immigration attorneys at Garg and Associates would be able to assist the employer in filing H-1B visas. As part of our services, each application will be accompanied by a detailed cover letter drafted by one of Garg and Associates’ experienced immigration attorneys. The letter will demonstrate that the employer met all qualifications and the employees are qualified beneficiaries. As part of the letter, the attorney will show that:

  1. There is a job offer from the qualifying employer and that the employee accepted such position.
  2. A copy of a valid LCA (obtained within 180 days from the date of filing the H-1B);
  3. The employer shall pay the H-1B employee the higher of (a) the actual salary or wage that it pays to all other individuals with similar experience and qualifications, or (b) the prevailing wage of the occupation in the “area of intended employment”, as defined by Metropolitan Statistical Area (MSA) and the Primary Metropolitan Statistical Area (PSMA). At least two sources must be used. As a safe-harbor, the employer can use the preliminary wage as provided by SESA.
  4. The H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment. Fore example, the employer can show the skilled professionals sought are those that the employer cannot find or that they are hard to find. Additionally, the employer must show that there is no current strike or lockout involving similar positions at the workplace;
  5. There had been conspicuously posted such notice of the vacant position at the work site on or within 30 days before the date the labor condition application is filed and/or that the employer had provided notice to the labor union (if necessary) regarding the position;
  6. The employer shall maintain for public examination:
    • A copy of the LCA filed,
    • Evidence of salary paid to the H-1B employee,
    • An explanation of how the actual wage was determined (as stated above), and
    • Documentation of the basis used for the prevailing wage;
  7. Finally, the employer must attest that he/she agrees to pay the foreign national the reasonable cost of transportation to return to the home country if the employment is terminated prior to the end of the authorized employment period.

Beware – Employers who violate the six requirements stated in No. 5 above or knowingly make false applications will face civil liabilities up to $35,000. Additionally, employees who knowingly violate the regulations will be barred from applying for USCIS benefits for at least one year or removed from the U.S.

Is There any Limitation on H-1B?

There are several limitations that H-1B may pose. First, the employee must meet all criteria mentioned above. Second, there is a limit of a total of six (6) years that the person can reside in the U.S. under H-1B. At the end of the 6 years, the person must return to the home country for at least one (1) year before he/she can reapply under H-1B. However, if an immigrant petition is filed on the employee’s behalf, such as an employment based third preference filed by an employer, then the H-1B can be renewed on a yearly basis until the applicant receives his/her green card. Third, spouses and children of the H-1B holder, the H-4, may not obtain a work permit and thus will not be able to work in the U.S, unless the spouse or children have their own qualifications. Lastly, there is currently a cap of 65,000 applications per year under H-1B. An additional 20,000 applications are available for those who receive post baccalaureate degrees in the U.S. (Master and Doctoral degrees).

In addition, to file for an H-1B, the employer must prepare all applications and documents, including the LCA prior to March 31. On March 31, the attorney will send the entire application package via overnight mail to USCIS. As stated, because there are a limited number of available visas under H-1B, usually the USCIS will receive more applications than the number of visas available the first day, which is April 1. Thus, if the employer wishes to file an H-1B application, please contact the experienced immigration attorney at Garg and Associates, PC as soon as practicable.

Can an H-1B Holder Obtain a Green Card and Become a Permanent Resident?

Usually, an H-1B holder may not directly apply for permanent residency and obtain a green card until he has an approved PERM, unless he/she is qualified under one of the three Employment Based 1st Preference categories. PERM is similar to the traditional Labor Certification and allows the H-1B holder and his/her employer to establish the need for the H-1B holder to remain in the United States indefinitely. Unlike the Labor Certification, however, which could take years, the PERM process could be done as quickly as one week, and usually takes up to 60 days. The entire process is done electronically, allowing USCIS officers to adjudicate the applications much faster. Once the H-1B holder obtains a PERM, the foreign national can apply for their permanent resident status by applying form I-485 and related forms to adjust status.

If you or someone you know is need of immigration law services, please do not hesitate to call Garg & Associates at 281-362-2865 for a consultation today or use our Contact Form.