H-1B Visa

J1 Waiver

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I am currently on a J1 visa and am working at University of Chicago. I need a J1 waiver so I can switch to H1B visa because I am on my final J1 extension. Can I do no objection waiver? I am from Argentina.

A no objection based waiver is likely a good choice for you provided that you did not receive any government funding for your J1 program. However, if you have received government funding such as Fulbright, the chances of a no objection based waiver are very small without significant political support.

H1B Visa Extensions Beyond the Six Year Limitation

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The maximum duration for status as an H1B visa holder is six years.  Any time spent in L status or other H status such as H2B or H4 visa status is included.  Normally, a foreign national who wishes to hold H1B visa status beyond the six year maximum is prohibited unless he or she spends at least one year outside of the US before re-entering in H1B visa status.  This six year limited does not apply in the following cases:

  • The H1B visa holder is working on a certain US Department of Defense project; or
  • Where the work is seasonal or intermittent or is in the US for less than six months out of the year.

There are three strategies which can be used to overcome the six year limitation.

  • AC21 Extensions in One Year or Three Year Increments AC 21 104(a)

An H1B visa holder can extend their H1B visa status in one year or three year increments if a labor certification (PERM) or Form I-140 was filed at least 365 days prior to the submission of the extension request or at least one year prior to the completion of the 6th year.  Additional extensions may be granted until a decision has been made on the I-485.

  • AC21 Extension in Three Year Increments AC 21 106(c)

An H1B visa holder who has an approved Form I-140 but in unable to file a Form I-485 due to per country limitations (priority date is not current according to the Visa Bulletin), H1B visa extensions may be granted in three year increments.

  • Recapturing Time Spent Outside the US

While this really won’t get you around the six year limit, it does allow an H1B holder to apply for an H1B extension and “recapture” days spent outside of the US.  If the H1B visa holder was outside the US for 61 days in the 6 years they held H1B status, they can recapture those days in an H1B extension application.

USCIS Providing Some Flexibility With LCA Issues in H1B Visa Applications

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On July 1, 2009 the Department of Labor (DOL) mandated that all LCA filings must be filed through the iCert portal and that individual officers would review filings prior to certification.  While estimated processing times were initially 7 days, human error and other systemic problems resulted in filing taking three weeks or longer.  Because USCIS rules require a certified LCA to be filed along with the H1B visa petition, many H1B visa applicants were not able to timely file their applications and were capped out or failed to file a timely extension or transfer.

Now it has been over 6 months and the DOL has still not fixed the issues, most notably the FEIN problem.  Fortunately, the USCIS has recognized these problems and has given applicants to ways to get around these problems, though neither are perfect fixes.

First, the USCIS will allow H1B visa filings without a certified LCA provided that the LCA was filed with the DOL and has been pending for at least 7 days.  However, the pending LCA must be approved at later filed with USCIS.  This really isn’t much of a solution because the main cause of delay in LCA cases are denials due to FEIN issues.

Second, the USCIS will forgive late filings where the delay was out of the control of the petitioner.  This will be extremely helpful though in cases where the petitioner did not request late filing forgiveness, they will have to pay the fees to reopen the application.

FY 2010 H1B Visa Cap Met

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USCIS has just announced that as of December 21, 2009, they have received sufficient H1B visa petitions to meet the 65,000 general cap.  Petitions received on December 21 will be subject to a random drawing and petitions received after December 21 will be rejected.

USCIS will continue to accept non-cap subject H1B petitions for FY 2010 start dates and will begin accepting FY 2011 petitions on April 1, 2010.

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.