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H-1B is a nonimmigrant classification for temporary employment in the United States. There are three types of foreign nationals (also known as “beneficiaries”) who may have petitions filed on their behalf under the H-1B classification:
The main requirements to be eligible for the H-1B classification are:
The foreign national must have an “employer-employee” relationship with the petitioning U.S. employer (also known as the “petitioner”). This means the petitioner must generally have the right to hire, pay, fire, supervise, or otherwise control the work of the beneficiary.
The foreign national must be coming to the U.S. to perform services in a “specialty occupation.” This means an occupation that requires:
The employer must pay the foreign national at least the “actual wage” or “prevailing wage” for the occupation, whichever is higher. These are:
The foreign national must meet the minimum educational and/or experience requirements for the specialty occupation position. This means the employer must demonstrate that the foreign national holds the required bachelor’s degree (or higher degree), or has sufficient relevant experience equivalent to the minimum educational requirements for the specialty occupation position, and is otherwise qualified for the specialty occupation position.
The H-1B classification is limited to an annual cap of 85,000 new visas in each fiscal year. This includes 20,000 H-1B visas set aside for foreign nationals who obtained a master’s degree from a U.S. university. New H-1B visas become available each year on October 1, which is the start of the government’s fiscal year. Because the demand for new H-1B visas is often higher than the available 85,000, U.S. Citizenship and Immigration Services (USCIS) conducts a lottery in March of each year to select which U.S. employers may petition for one of the new H-1B visas that will be available the following October.
Check out BAL’s analysis of the FY 2024 H-1B cap registration and selection numbers for fiscal years 2021-2024.
Check out BAL’s latest H-1B Cap Post-Lottery podcast episode!
H-1B classification may be granted in increments of up to three years at a time and extended in increments of up to three years at a time. Extensions can be initiated up to six months prior to the expiration of H-1B status.
In general, a foreign national may hold the H-1B classification for a maximum of six years. Time spent in H-1B, L-1A, and L-1B classifications are counted together toward the applicable maximum.
After reaching six years in H-1B classification, the foreign national may:
There are exceptions that allow extension of a foreign national’s H-1B classification beyond the six-year maximum, but the foreign national must:
Obtaining H-1B classification requires a number of steps:
Premium processing is an optional service offered by U.S. Citizenship and Immigration Services (USCIS) that provides expedited processing for certain Forms I-129 (Petition for a Nonimmigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker). In most cases, premium processing for Form I-129 petitions for the H-1B classification guarantees processing by USCIS within 15 calendar days for an additional fee. If USCIS does not take action on the Form I-129 within the 15 calendar days after it receives the request for premium processing, USCIS will refund the additional fee and will continue with expedited processing.
If a registration is selected in the lottery, there are two options for filing the H-1B petition during the 90-day filing window, depending on where the foreign national is when the petition is filed and how the foreign national plans to activate the H-1B status after the petition is approved.
Change of Status: If currently in the U.S. and in another valid status (e.g., F-1, L-1) at least until October 1, we can file the H-1B cap petition as a “change of status” petition, meaning that the H-1B status will automatically take effect on October 1, or on the date the petition is approved, whichever date is later. If the foreign national is currently in the U.S. in F-1 status — including an Optional Practical Training (OPT) or STEM extension — but their status will expire before October 1, they may be eligible for a cap gap extension of their F-1 status to that date.
Consular Notification: However, if the foreign national is not in the U.S. at the time the H-1B petition is filed, does not have another status valid until October 1, or if other situations (explained below) apply, the H-1B petition is filed as a “consular notification” petition. In this situation, in order to activate H-1B status after the H-1B petition is approved, the foreign national will need to enter the U.S. with the H-1B approval notice from USCIS and a valid H-1B visa stamp in their passport. The foreign national will need to obtain an H-1B visa at a U.S. embassy or consulate while outside the U.S. H-1B status will take effect after the foreign national obtains the H-1B visa and uses it and the H-1B approval notice to enter the U.S. If in the U.S. when the H-1B petition is approved, the foreign national will need to leave the U.S. and re-enter with their H-1B approval notice after receiving their H-1B visa from the U.S. embassy or consulate. Note that Canadian citizens are exempt from the visa requirement and can activate their H-1B status by entering the U.S. with the H-1B approval notice. The earliest the foreign national can enter the U.S. to activate H-1B status is ten days before the starting validity date on the H-1B approval notice.
If a foreign national’s case is filed as a change of status, H-1B status will automatically take effect on October 1, 2023, or on the date the petition is approved, whichever date is later. If the case is filed as a consular notification, H- 1B status will take effect after the foreign national activates H-1B status by entering the U.S. with their H-1B visa and H-1B approval notice. As a reminder, Canadians are visa exempt and do not have to apply for a visa at a U.S. embassy or consulate. To activate their H-1B status, they can show their H-1B approval notice to a Customs and Border Protection officer when entering the U.S.
If a foreign national’s H-1B petition is a change of status, he or she does not have to travel to activate H-1B status. If the H-1B petition is a consular notification, the foreign national must obtain an H-1B visa at a U.S. embassy or consulate (unless Canadian) and then travel to the U.S. to be admitted to the U.S. in H-1B status.
Foreign nationals will need to bring the original H-1B approval notice and a copy of the H-1B petition. In addition, foreign nationals will need to review the U.S. embassy or consulate’s website to learn what specific documentation is required, as every U.S. embassy or consulate has different application procedures and requirements.
Spouses and unmarried children under the age of 21 may obtain H-4 classification based on their family relationship to the H-1B workers.
Do you need BAL to file H-1Bs for your employees/organization? Click here to to contact us so we can help.
There are several types of Business Visitor classifications in the U.S. This article focuses on the B-1 visa, as well as visa waiver programs. There are also visas for entrepreneurs and investors.
The B-1 is a nonimmigrant classification for temporary business visitors to the U.S. As opposed to workers in the U.S., B-1 visitors may enter the U.S. for the purpose of engaging in business but not for the purpose of being employed. Commercial or professional activities that are not employment are permitted under B-1 visitor status.
Examples of permissible commercial or professional activities include (but are not limited to):
The range of acceptable business activities that fall under the B-1 classification is fact-specific and often depends on whether the activities constitute employment while in the U.S. Factors that influence whether activities constitute employment include whether the foreign national will be paid by a U.S. company or perform labor for hire in the U.S.
Generally, the legal requirements that must be met to obtain a B-1 visa include:
Foreign nationals outside the U.S. can obtain B-1 classification by applying for a B-1 Temporary Business Visitor visa through the U.S. Department of State (DOS) at a U.S. Consulate or Embassy. For more information regarding the consular application process, check out BAL’s explainer video, which describes the process for applying for a nonimmigrant visa at a U.S. Consulate or Embassy.
After DOS issues the B-1 visa, the foreign national may seek admission to the U.S. in B-1 status. Chinese nationals who receive a 10-year B-1 visa must enroll in the Electronic Visa Update System (EVUS).
Foreign nationals inside the U.S. can apply for B-1 status by filing a Form I-539 (Application to Extend/Change Nonimmigrant Status) with U.S. Citizenship and Immigration Services (USCIS).
Foreign nationals who already hold B-1 status in the U.S. can apply to extend their status by filing a Form I-539 (Application to Extend/Change Nonimmigrant Status) with USCIS.
Foreign nationals may be admitted to the U.S. in B-1 status for a period of up to six months, and they may apply to extend their B-1 status in the U.S. in periods of up to six months. Due to the temporary nature of the classification, extensions are not generally permitted beyond one year.
B-1 classification is not for employment in the U.S. This means that foreign nationals in B-1 status generally cannot receive a salary or income from a U.S.-based company while in the U.S. Foreign nationals who will be in the U.S. to engage in commercial transactions, such as meeting with buyers and accepting orders, must produce the resulting goods or services outside the U.S.
Foreign nationals in B-1 status are not permitted to enroll in a course of study in the U.S.
The Visa Waiver Program (VWP) allows citizens and nationals of countries participating in the program to travel to the U.S. for periods of up to 90 days without being required to obtain a visa. If entering the U.S. using the VWP, a foreign national will automatically be granted a stay of 90 days. In most cases, foreign nationals using the VWP are not eligible to apply for extensions of stay and must depart the U.S. within the 90-day period.
Nationals of VWP countries who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011, must obtain a B-1/B-2 visa prior to traveling to the U.S. Additionally, individuals who have traveled to Cuba on or after January 12, 2021, or are nationals of Cuba are not eligible for VWP and must obtain a B-1/B-2 visa to enter the U.S. Dual nationals of Iran, Iraq, Sudan, or Syria must also obtain a B-1/B-2 visa.
To qualify for the VWP, a foreign national must meet the following requirements:
The Electronic System for Travel Authorization (ESTA) is a web-based system that determines the eligibility of visitors to travel to the U.S. under the Visa Waiver Program (VWP), and whether such travel poses any law enforcement or security risk.
All travelers under the VWP must submit a pre-clearance application online or through the ESTA mobile app. Each approved ESTA application is generally valid for a period of two years, such that a Visa Waiver Program visitor may travel to the U.S. repeatedly within the two-year period without being required to apply for another ESTA. Individuals must obtain a new ESTA approval if they receive a new passport or if their information changes.
ESTA is not a visa but rather a requirement for entry to the U.S. under the VWP. However, like a visa, an ESTA approval is not a guarantee of admission to the U.S. An ESTA approval authorizes an individual to board a carrier for travel to the U.S. under the VWP.
Looking for expert immigration assistance for your personal or your employee’s upcoming business visits to the U.S.? Contact us now for help with the application process, including support on how to prepare an invitation letter for business purposes.
A Labor Certification is a document issued by the U.S. Department of Labor (DOL) that is required for many immigrant visa preference categories. The filing of a Labor Certification application with DOL by the sponsoring employer is an early step in the multi-step process for a foreign national to obtain permanent residence (a “Green Card”). The system that DOL uses to process employers’ applications for Labor Certifications is called Program Electronic Review Management, also known as “PERM.”
As part of the Labor Certification process, the employer is required to test the labor market and demonstrate that there are no U.S. workers in the geographic area of employment who are able, willing, qualified, and available to perform the job in question, and that the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.
An employer sponsoring a foreign national for the following immigrant visa preference categories must obtain an approved Labor Certification from DOL before a Form I-140 (Immigrant Petition for Alien Workers) can be filed with U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign national:
To qualify for a Labor Certification, the employer must demonstrate:
Obtaining a Labor Certification is a multi-month process that requires a number of different steps, including:
Prepare a Job Description or Job Summary — The employer must identify the specific duties and the minimum education, skills, and experience required for the job opportunity.
Obtain a Prevailing Wage Determination — The employer must request and obtain a prevailing wage determination from DOL. This requires the employer to file a Form ETA 9141 (Application for Prevailing Wage Determination) that describes the job opportunity. DOL assesses this information and issues a determination of the prevailing wage for the occupation in the intended area of employment.
The employer must agree to pay the foreign national at least the prevailing wage when the foreign national receives lawful permanent residence (a “Green Card”) based on the Labor Certification.
Recruitment — The employer must conduct and document recruitment efforts for the job opportunity in order to demonstrate that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment. This involves a number of different forms of recruitment:
The employer must document that it received job applications through these recruitment methods, that it reviewed the applications and contacted applicants that appeared qualified for the job opportunity, and that it determined each applicant was not able, willing, qualified, or available for the job opportunity. The employer must retain this documentation for five years from the date of filing the Labor Certification application with DOL.
Application for Labor Certification (PERM) — The Labor Certification application is submitted to DOL on the online Form ETA 9098. The form requires the employer to attest to the duties and minimum qualifications for the job opportunity, the recruitment steps it undertook, and that it did not identify any able, willing, qualified, and available U.S. workers for the position during recruitment.
Potential Audit — While supporting documentation is not submitted to DOL at the time of filing the Labor Certification application, DOL has the authority to conduct an audit on a pending application. If DOL initiates an audit, the employer must submit documentation demonstrating it complied with all applicable regulations and policies.
Labor Certification Decision — DOL will notify the employer when it approves or denies the Labor Certification. An approved Labor Certification allows the employer to file a Form I-140 (Immigrant Petition for Alien Worker) with USCIS on behalf of the foreign national, which will classify the foreign national for an immigrant visa preference category. The Form I-140 petition must be filed with USCIS within 180 days of the Labor Certification approval.
For more information regarding the PERM process, check out BAL’s explainer video that describes the PERM application process, including required information/documentation, case preparation, filing with the government, and approval.
The timeline for obtaining an approved Labor Certification depends on a number of factors, including:
Click here to access BAL’s PERM Application Process Video for what to expect during your PERM process.
EB-1 or First Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-1 First Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).
There are three types of foreign nationals who may qualify for the EB-1 category:
The EB-2 or Second Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-2 Second Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).
Foreign nationals may qualify for the EB-2 Second Preference category on the basis of their:
This category typically requires a job offer from an employer and a PERM Labor Certification from the U.S. Department of Labor (DOL), but this requirement can be waived for foreign nationals who qualify for a National Interest Waiver (NIW).
The EB-2 NIW category includes foreign nationals who:
This category allows self-sponsorship. An employer may file Form I-140 on behalf of the foreign national, but a foreign national may also file Form I-140 on their own behalf as a “self-petitioner” without an offer of employment from a U.S. employer or a PERM Labor Certification from the DOL.
The EB-2 NIW is a highly specialized Green Card category for foreign nationals who can show that their work in their field is of “national interest” to the U.S.
In addition to demonstrating that the foreign national is a professional holding an advanced degree or of exceptional ability in the sciences, the arts, or business, to receive the EB-2 NIW approval, the foreign national must demonstrate that they meet the following three criteria:
EB-3 or Third Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-3 Third Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).
There are three types of circumstances that may qualify for the EB-3 Third Preference category:
Click here for more info on upgrading or downgrading between EB-2 and EB-3 categories.
EB-4 or Fourth Preference category is an employment-based immigrant classification for “special immigrants.” Foreign nationals who qualify for the EB-4 Fourth Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).
There are a range of “special immigrants” who may qualify for the EB-4 Fourth Preference category:
EB-5 or Fifth Preference category is an employment-based immigrant classification for investors. Foreign nationals who qualify for the EB-5 Fifth Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).
There are two types of requirements to qualify for the EB-5 Fifth Preference category:
After a foreign national is the beneficiary of an approved immigrant visa petition and an immigrant visa number is immediately available, there are two ways to apply for lawful permanent resident status (also known as a “Green Card”).
For example, an H-1B worker in the U.S. may pursue adjustment of status to a lawful permanent resident after being sponsored for an immigrant visa by his or her employer. The H-1B worker would file an application requesting that U.S. Citizenship and Immigration Services (USCIS) adjust his or her status to that of a lawful permanent resident.
Consular processing is the process of applying for an immigrant visa outside the U.S. in order to be admitted as a lawful permanent resident. Consular processing requires the applicant to depart the U.S. and attend an interview with the U.S. Department of State Embassy or Consulate outside the U.S. in order to obtain an immigrant visa authorizing admission to the U.S. as a lawful permanent resident.
For example, the same H-1B worker in the U.S. may pursue lawful permanent residence through consular processing. However, in order to return to the U.S. as a lawful permanent resident, the H-1B worker would file an immigrant visa application with the U.S. Department of State, attend a visa interview at a U.S. Consulate or Embassy outside the U.S., obtain an immigrant visa, and return to the U.S. to be admitted as a lawful permanent resident.
An application for adjustment of status is submitted to USCIS on a Form I-485 (Application to Register Permanent Residence or Adjust Status). In general, foreign nationals may not apply for adjustment of status until a visa number is available for the specific immigrant visa category. The U.S. Department of State’s monthly Visa Bulletin determines when foreign nationals are eligible to file a Form I-485 application with USCIS based on their priority date.
After filing the Form I-485 application, applicants must attend a biometrics appointment at a USCIS Application Support Center to provide fingerprints, a photograph, and signature. USCIS will review the Form I-485 application and notify the applicant if additional documentation and/or an interview is required. After the additional documentation has been submitted and/or the interview has occurred, USCIS will determine whether to grant or deny the application. If USCIS grants the application, it will mail an approval notice to the foreign national and adjust the status of the individual to a lawful permanent resident. USCIS will mail the Green Card at a later date.
Check out BAL’s explainer video that describes the process of completing the USCIS interview stage of the Adjustment of Status application, including required information/documentation, questions that may be asked, and the events following the interview appointment.
Consular processing requires the foreign national to wait for notification from the U.S. Department of State’s National Visa Center (NVC) that he or she is eligible to submit an immigrant visa application. When NVC determines that an immigrant visa number is about to become available, it will notify the beneficiary to submit the required fees and supporting documentation for the immigrant visa application. When the foreign national’s priority date is current according to the most recent Visa Bulletin, the U.S. Consulate or Embassy will contact the foreign national to schedule an immigrant visa interview.
After the foreign national attends the immigrant visa interview, the U.S. Department of State will determine whether to grant or deny the application. If the U.S. Department of State grants the application, it will provide the foreign national with a sealed visa packet that they must provide to U.S. Customs and Border Protection (CBP) at a U.S. port of entry. CBP will review the documentation contained in the visa packet and determine whether to admit the foreign national to the U.S. as a lawful permanent resident. If the individual is admitted to the U.S. as a lawful permanent resident, he or she will receive a Green Card in the mail within a few weeks of entering the country.
Looking for expert immigration assistance to create and manage a customized and strategic immigration program for your company? Contact us now.
The Form I-9, Employment Eligibility Verification, is the form employers are required by law to use to verify that new hires are authorized to work in the United States. Employers must also “re-verify” the employment authorization of employees who have temporary forms of work authorization (i.e., with an expiration date). The Form I-9 is available free of charge on the U.S. Citizenship and Immigration Services (USCIS) website: www.uscis.gov/I-9.
Check out this video made by USCIS regarding the Form I-9.
Yes, the law imposes strict timeframes. The employee must complete Section 1 of the form no later than the first day of employment, which is the date that employment for wages or other remuneration begins. The earliest time an employee may complete Section 1 is after accepting a job offer from the employer.
Within three business days of the first day of employment, the employee must present documentation deemed acceptable by the government to demonstrate both identity and authorization to work in the U.S. The employer must physically review the employee’s original document or combination of documents, and complete Section 2 of the Form I-9 within three business days of the employee’s first day of employment. If the employee will work for the company for fewer than three days, both Section 1 and Section 2 of the Form I-9 must be completed no later than the first day of employment.
A previously established 30-day grace period (that was imposed due to COVID restrictions) is ending on July 31. Listen to the full update implications on BAL’s Immigration Report, episode 23, available here.
All employers must complete and retain Form I-9 Employment Eligibility Verification for every person they hire for employment after Nov. 6, 1986, in the U.S., as long as the person works for pay or other type of payment.
In the Commonwealth of the Northern Mariana Islands (CNMI), employers have had to complete Form I-9 CNMI for every employee hired for employment in the CNMI from Nov. 28, 2009, to Nov. 27, 2011. The standard Form I-9 must be used for employees hired on or after Nov. 28, 2011.
In the event of an I-9 audit, either Immigration Customs Enforcement (ICE) or Homeland Security Investigations (HIS) will issue the employer a Notice of Inspection at least three days ahead of the intended audit. The Notice of Inspection will indicate whether the officials will ask for documentation to be sent in or whether the officials will visit the employer’s workplace.
Employers should proactively conduct internal I-9 audits to ensure they are compliant with all I-9 requirements and prepared in the event of an official audit. Failing an audit could result in fines and penalties on the employer including, but not limited to, criminal penalties (where there are repeat offenses), possible debarment from government contracts, as well as negative impacts on business reputation. The Department of Homeland Security recently increased fines for I-9 paperwork violations. As of 2022, fines range from $252 to $2,507 per I-9 form. Therefore, it is crucial that you prepare in advance to ensure appropriate I-9 maintenance.
BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as assist with complicated I-9 audit preparation. Contact us for more information!
In some cases, employers are not required to complete or keep a Form I-9. Employers are required to complete and retain a Form I-9 for every employee they hire for employment in the United States, except for:
Employers can find more information about the Form I-9 requirements in the USCIS Handbook for Employers on the USCIS website.
BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs. Contact us for more information!