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The INS Office of Business Liaison had recently issued an updated information bulletin on the H-1B specialty workers. We have selected and summarized some topics that may be most interesting to H-1B workers. This information is being provided for general educational purposes only and is not intended to be a substitute for actual legal advice. If you have specific questions or need legal advice, you can contact Law Office of Baoqin Wang directly.

H-1B Workers: Important H-1B Laws You Should Know

Source: INS Information Bulletin 7: H-1B Specialty Workers (5/01)

1. Duration of H-1b employment

Approved H-1b beneficiaries are initially admitted to the US for the requested period of employment or a maximum of 3 years. Status is extendible up to a total employment period of 6 years.

2. Readmission under H-1b classification following maximum period of employment

Following employment under H-1b classification for the maximum 6-year time period, alien beneficiary must remain outside the US for at least one year to re-qualify as beneficiary of a new H-1b petition. A US employer may not file a new petition on behalf of the beneficiary until this one year requirement has been completed.

3. Payment of H-1b workers

H-1b employers are required to pay wages indicated under Labor Condition Application (LCA wages) 30 days from H-1b admission into the US. If an alien changes status to H-1b within the US, the LCA wages must commence no later than 60 days following the effective date of change of status. Once this 30/60-day window closes, employer must begin paying wages. Note: employer’s wage obligation begins before 30/60-day window closes if the beneficiary is available for work. If an employee reports to work before the 30/60-day period ends, the employment relationship begins at that time.

4. H-1b dependents

Qualifying family members (including spouses and unmarried children under 21) may not be employed under H-4 classification. Their status terminates when and if the status of the H-1b principal terminates (even if their Forms I-94 have not yet expired).

5. Travel

An unexpired visa is required in order for non visa-exempt H-1b or H-4 aliens who travel abroad to be re-admitted to the US. Aliens approved for change of status do not need visas until they travel outside the US. Aliens who travel while change of status requests are pending are deemed to abandon the petitions. Aliens approved for extension of stay must renew visas, since visa duration typically matches H-1b approval period. Aliens who travel while extension of stay requests are pending cannot renew visas until INS approves extensions.

6. H-1b status terminates with H-1b employment

H-1b status is tied to the approved employment. As long as employment is maintained, an H-1b beneficiary remains "in status". This includes vacation or sick/family leave, strikes, or other inactive status provided that the employer-employee relationship persists in the same way for H-1b aliens as for US workers under the same conditions.

7. Distinction between lapse of status and unlawful presence

Lapse of Status

An alien who violates terms and conditions of his/her approved nonimmigrant classification loses that status. For example, since H-1b status derives from the approved employment, an H-1b alien loses status if and when the approved employment ends. If this happens before a new petition for extension of stay, change of approved employment, change of status, or adjustment of status has been filed, the alien will likely be ineligible for approval since he/she no longer has a current status or current employment from which to change. This is true without regard to the expiration date indicated on his/her Form I-94 Arrival-Departure Record.

To determine whether the named beneficiary is in status, INS Service Centers require current pay stubs and/or other documentation up until the date of filing of a new petition, reflecting that the approved employment (and lawful H-1b status) have been maintained. In cases where this cannot be provided, change or extension will likely be denied.

Unlawful Presence

Lapse of status may subject the alien to deportation, if discovered. In addition, a lapse of status will likely cause a petition for an immigration benefit such as change of status, adjustment of status, or change in H-1b employment to be denied. For example, if an H-1b terminates the approved employment voluntarily or involuntarily and is unable to supply proof that he/she has maintained status by submitting pay stubs from the approved employer up until the date of filing, the request for the benefit will be denied even if the employer’s petition is approved on its merits. In such case, not only will the petition be considered as a petition for new employment, require the alien to leave the US in order to obtain a new visa (if required) and a new Form I-94 upon readmission to the US, but the finding of lapsed status by the INS adjudicator will cause unlawful presence to accumulate as of the date of the denial. Alternatively, if an alien overstays past his I-94 expiration date, the alien’s visa is automatically canceled and the alien begins to accrue unlawful presence as of the expiration date. The only other time that unlawful presence begins to accrue is after an immigration judge makes a determination of breach of status.

An automatically canceled visa restricts issuance of a subsequent visa to the US consulate in the alien’s home country. Third country processing (such as in Canada for non-Canadians or Mexico for non-Mexicans) is not permitted in such cases.

IMPORTANT! However unlawful presence occurs, an alien who accrues more than 180 days of unlawful presence will be barred from re-admission to the US for three years if he/she leaves the US. Accrual of 360 or more days of unlawful presence bars the alien from readmission to the US for ten years.

8. Obligations of all H-1b employers under the law

(1) To offer benefits to H-1b workers on the same basis as offered to their US workers. Benefits include the opportunity to participate in health, life, disability and other insurance plans, the opportunity to participate in retirement and savings plans, and cash bonuses and noncash compensation such as stock options;

(2) To pay full wages to any H-1b worker placed in nonproductive status (“bench time”) by the employer unless it results from the H-1b worker’s voluntary request or conditions unrelated to employment and the period does not require compensation under the employer’s benefit plan or under other statutes;

(3) Not to permit an H-1b worker to pay H-1b filing fees, attorney fees and/or other costs of H-1b processing unless, when deducted from the employee’s wage, the residual wage would meet LCA requirements;

(4) Not to impose a penalty via payroll deduction for an H-1b employee’s voluntary termination of employment before an agreed upon date (although collection of liquidated damages pursuant to an agreement between H-1b employee and employer may be upheld);

(5) Return transportation obligation: Employers who terminate H-1b beneficiaries prior to the end of the approved period of employment are required to pay transportation costs of returning H-1b workers to their last place of foreign residence. However, employers do not have this obligation if the H-1b worker voluntarily terminates employment prior to the end of the approved employment period;

9. Exceptions to maximum H-1b stay of six years

Though an H-1B holder’s total stay in the US is limited to six years, there are some exceptions to this rule:

(1) Per country limitation: Where per country limitations cause a delay in an alien’s adjustment of status application, an H-1b alien may extend H-1b status past six years until an immigrant visa is available and application for adjustment is filed and approved.

(2) Lengthy adjudication process: H-1b beneficiaries of filed employment based I-140 (Immigrant Petition for Alien Worker) petitions may extend H-1b stay through application for and approval of adjustment, for one year at a time, in cases where the supporting labor certification has been pending for over 365 days.

10. H-1b Visa Portability

An alien previously granted H-1b status may accept new H-1b employment provided that the new employer has filed a non-frivolous petition (not without basis in law or fact) naming that alien as beneficiary and that the alien beneficiary has not accumulated unlawful presence in the US. In cases where H-1b petitions are denied following commencement of employment under these provisions, employment authorization of the H-1b alien ceases upon denial.

Although this law went into effect on October 16, 2000, INS has not yet formally interpreted the provisions or published implementing regulations. As a result, H-1b employers and aliens should proceed cautiously. As of today, it is clear that aliens with I-94 Arrival-Departure Records indicating unexpired H-1b classification may use this documentation as evidence of employment authorization for a new H-1b employer that has filed an H-1b petition and received a receipt from INS. Aliens who travel during the portability period should carry with them copies of the filed petition, the receipt issued to the employer, and the unexpired Form I-94 relinquished upon departure from the US, as well as the unexpired foreign passport and H-1b visa. Such aliens whose H-1b visas have expired are advised not to travel prior to approval of the new H-1b petition, since they will not have the documentation required to support renewal of their H-1b visas.

11. H-1b status during adjustment of status

H-1b alien beneficiaries of approved petitions for permanent residence may choose to work and travel as adjustees, using an employment authorization document (EAD) and advance parole for which they may apply, or to continue to work and travel under unexpired H-1b classification.

Work and travel authorization should correspond. An alien who works under an adjustment-based EAD should travel under advance parole. An alien who works under a Form I-94 reflecting unexpired H-1b classification should travel using an H-1b visa and obtain a Form I-94 that reflects H-1b status upon readmission to the US.

12. Adjustment portability

Adjustment of status applicants whose I-485 applications have been pending for over 180 days may change positions within the same company or change employers, within the same or similar occupational classification, without invalidating the underlying labor certification or I-140 petition.