H-1B Visa

H-1B Site Visits: They’re Coming to Visit You

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In nearly every H-1B petition, the petitioner is required to pay a $500 anti-fraud fee.  The Department of Homeland Security (DHS) is using the proceeds of these anti-fraud fees to investigate H-1B petitioners.  DHS is contracting with private investigators to make surprise visits, though they may provide advance notice if they so desire, to H-1B work sites.  These investigators are charged with verifying that the petitioning company is a real business entity operating as stated in the H-1B application and that the H-1B visa holder is a legitimate employee.

Therefore, it is imperative that each H-1B sponsor make sure that their filings are accurate.  If any amendments need to be made to reflect material changes in an already approved H-1B petition, such as change in work location or changes in job duties, the employer must timely file an H-1B amendment to reflect such changes.  Failure to take these duties responsibly can result in monetary penalties as well as criminal prosecution.

Obama’s Stimulus Plan and Its Effect on H-1B Visa Applications

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On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 containing the Sanders H-1B amendment.  The Sander H-1B amendment prohibits the sponsoring of H-1B visas by organizations that received funding of through the Emergency Economic Stimulus Act of 2008 (TARP money) unless the organization complies with the requirements of H-1B dependent employers for the next two years.

H-1B dependent employers are defined as employers with:

1.  25 or fewer full time equivalent employees in the US and employ more than seven H-1B visa holders; or

2.  26-50 full time equivalent employees in the US and employ more than 12 H-1B visa holders; or

3.  have more than 50 full time equivalent employees in the US and employ at least 15% of their workforce with H-1B visa holders.

H-1B dependent employers must make certain attestations with regard to US worker displacement, recruitment and hiring. The American Immigration Lawyers Assication (AILA) recently posted a press release stating that these attestation requirements “saddles TARP fund recipients with strict regulations for hiring foreign workers under the H-1B program that are so cumbersome as to amount to an out-and-out prohibition.”

Notwithstanding AILA’s position, this is actually good news for many prospecitve H-1B visa applicants who intend to file this April 2009 for FY2010.  Last April, USCIS was overwhelmed with H-1B applications and the 65,000 H-1B Visa Cap was met in the very first week and tens of thousands of applications were rejected through a lottery system.  If the Sanders amendment precents the large financial firms from applying as AILA as predicted, there will be many more available H-1B visas for applicants from smaller US companies.

H-1B Visa Transfers

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Many H-1B visa holders are under the impression that there is a “grace period” following the conclusion of their stay in H-1B visa status. Most believe that if they are laid off, fired or otherwise terminated that they have 30, 60 or even 90 days to find a new H-1B sponsor or just to gather their things and leave the country. This is not the case.

If the H-1B visa status terminates because the I-94 expires and there is no application for extension or transfer, then the H-1B visa holder has a grace period of 10 days, if and only if an extra 10 days is granted by US Customs and Border Protection (CBP) when the H-1B visa holder enters the United States.

If the H-1B visa holder is fired or terminated then he or she is out of status immediately. In fact, the petitioning employer is required to notify USCIS of the date of termination. If the H-1B holder is not employed by the petitioning employer and has not filed an application to transfer the H-1B visa to another company then he or she is out of status and may be accruing unlawful presence. Matter of Lee, 11 I. & N. Dec. 601 (Reg. Comm. 1966). However, USCIS has some discretion pursuant to 8 CFR 214.1(c)(4) and may allow an application for H-1B visa transfer if filed within 30 days of termination.

H-1B visa transfers are governed by INA § 214(n) and allows an H-1B visa holder to “port” to a new employer if these four requirements are met:

    1. The foreign national was lawfully admitted

    2. the new petition is “nonfrivolous”

    3. the new petition was filed before the date of expiration of period of authorized stay

    4. subsequent to lawful admission, the foreign national has not been employed without authorization

“Port” or H-1B portability means that a H-1B holder may work for a new H-1B petitioner upon the filing of an application to transfer to the new employer so long as the four requirements are met. The H-1B holder may attempt to port, even 30 days after their previous H-1B employment was terminated relying on 8 CFR 214.1(c)(4), and work for the new H-1B visa employer upon filing the application. In this case the H-1B visa holder would be legally authorized to work for the new petitioning employer at least until the application is adjudicated. Should the transfer application be denied, the alien would be required to depart the US. If the application is successful, he or she may continue to work for the new employer for the duration of the new authorized stay as shown on the new I-94.