What is the H-1B classification?

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:

• Specialty Occupations — This includes beneficiaries who are coming to the U.S. to perform services in a “specialty occupation.” A specialty occupation is a position that normally requires a bachelor’s degree (or higher degree) in a specific field. This is the most common type of beneficiary in the H-1B classification.
• Department of Defense Cooperative Research and Development Projects — This includes beneficiaries who will work in cooperative research and development projects administered by the U.S. Department of Defense.
• Fashion Models — This includes beneficiaries who are fashion models of distinguished merit and ability.

What are the general requirements for the H-1B classification?

The main requirements to be eligible for the H-1B classification are:

Employer-Employee Relationship

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.

Specialty Occupation

The foreign national must be coming to the U.S. to perform services in a “specialty occupation.” This means an occupation that requires:

• Theoretical and practical application of a body of highly specialized knowledge; and
• Attainment of a bachelor’s degree (or higher degree) in a specific field as a minimum for entry into the occupation.

Paid Actual Wage or Prevailing Wage

The employer must pay the foreign national at least the “actual wage” or “prevailing wage” for the occupation, whichever is higher. These are:

• Actual Wage — The wage rate paid by the employer to employees with similar experience and qualifications for that position.
• Prevailing Wage — The wage rate required by a union contract or the average wage rate paid to similarly employed workers in the specific geographic area.

Foreign National’s Qualifications

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.

What limits are there on the H-1B classification?

Annual Cap of H-1B Visas

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!

Time Limitations

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:

• Change to a different nonimmigrant classification in order to continue working in the U.S., if the foreign national is eligible for another classification;
• Obtain lawful permanent residence (a “green card”) to continue working in the U.S.; or
• Depart and remain outside of the U.S. for one continuous year before obtaining a new H-1B visa from the available 85,000 each fiscal year.

Extensions Beyond Six Years

There are exceptions that allow extension of a foreign national’s H-1B classification beyond the six-year maximum, but the foreign national must:

• Have a Form I-140 (Immigrant Petition for Alien Worker) approved on the foreign national’s behalf but be unable to receive lawful permanent residence (a “green card”) due to a backlog of immigrant visa availability for the foreign national’s country of birth; or
• Have a Labor Certification and/or I-140 (Immigrant Petition for Alien Worker) filed on the foreign national’s behalf at least 365 days before the end of the foreign national’s six years in H-1B classification.

What is the process to obtain H-1B classification?

Obtaining H-1B classification requires a number of steps:

• File online registration for cap-subject H-1B — If the foreign national is subject to the annual cap of 85,000 new H-1B visas, the employer must file an online registration form during the H-1B cap registration period in March. After the registration period closes, USCIS conducts a lottery to select registrations. If USCIS selects a registration filed by the employer, the employer may file an H-1B cap petition on Form I-129 (Petition for Nonimmigrant Worker) for the foreign national named in the registration. If the foreign national is not subject to annual cap, the H-1B process starts with obtaining a certified Labor Condition Application (LCA) described below.
• Obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor — The employer must prepare a Labor Condition Application (LCA) to file with the U.S. Department of Labor. This process requires the employer to attest to the working conditions and wages for the intended foreign national. The employer must also post copies of the LCA or notice of filing at relevant work locations to provide notice to other employees that it will be filing the LCA with the U.S. Department of Labor. The employer must submit the LCA to the U.S. Department of Labor for certification.
• File Form I-129 (Petition for Nonimmigrant Worker) with USCIS — The employer must submit a Form I-129 (Petition for Nonimmigrant Worker) to USCIS with information and supporting documentation to demonstrate that the position and foreign national qualify for the H-1B classification. Premium processing is available for Form I-129 petitions filed with USCIS for the H-1B classification.

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.

 

What is the difference between H-1B “change of status” petitions and H-1B “consular” petitions?

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.

When will H-1B status take effect?

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.

Do all foreign nationals have to travel to activate H-1B status?

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.

What do foreign nationals need in order to obtain an H-1B visa stamp at a U.S. embassy or consulate abroad?

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.

Are family members of H-1B workers eligible for nonimmigrant classification?

Spouses and unmarried children under the age of 21 may obtain H-4 classification based on their family relationship to the H-1B workers.

BAL can help!

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.

What is the B-1 classification?

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):

• Consulting with business associates;
• Attending conventions or conferences;
• Attending short-term training (as long as the visitor is not receiving any salary from a U.S. source or engaging in any productive employment);
• Negotiating contracts;
• Participating in business meetings;
• Taking orders for foreign goods, or other commercial transactions that do not involve gainful U.S. employment;
• Litigation; or
• Independent research or professional artistic activities (e.g., recording music or creating artwork) that do not involve income from a U.S. source.

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.

What are the general requirements for the B-1 classification?

Generally, the legal requirements that must be met to obtain a B-1 visa include:

• The foreign national’s entry to the U.S. is for a limited and defined duration;
• The foreign national intends to depart the U.S. at the expiration of his/her stay;
• The foreign national has adequate financial resources for travel to and from the U.S. and for the stay in the U.S., without being employed in the U.S.; and
• The foreign national will engage solely in legitimate activities relating to business, and has specific and realistic plans for his/her U.S. activities.

What is the process to obtain B-1 classification?

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.

What limits are there on the B-1 classification?

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.

What is the Visa Waiver Program (VWP)?

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.

What are the general requirements for the Visa Waiver Program?

To qualify for the VWP, a foreign national must meet the following requirements:

• The purpose of travel must be permitted under the B-1 Temporary Business Visitor classification or the B-2 Tourism classification;
• The foreign national must be a citizen or national of a VWP Designated Country (a list of currently designated countries is available on the U.S. Department of State’s website);
• The foreign national must typically have a valid, machine-readable electronic passport with a digital chip and a digital photograph printed on the passport data page. The passport must remain valid for at least six months beyond the intended departure date from the U.S.; and
• The foreign national must have a valid Electronic System for Travel Authorization (ESTA) prior to boarding transportation to the U.S.

What is the Electronic System for Travel Authorization (ESTA)?

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.

BAL can help!

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.

What is the Form I-9?

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.

Are there deadlines to complete the form?

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.

When does an employer need to complete a Form I-9?

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.

What Employers Should Expect of the I-9 Audit?

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.

Why Do You Need an Internal I-9 Audit?

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!

I-9 Compliance Guidance for Certain Employees That Fall Into Special Categories:

• Employees in the Commonwealth of the Northern Mariana Islands: Individuals hired for employment in the Commonwealth of the Northern Mariana Islands.
• Employees from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau: Individuals hired for employment who are from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.
• Domestic workers: Individuals who perform child care, household tasks, and/or upkeep of a home or surrounding yard on a regular basis in return for wages or other benefits, and who are not independent contractors or providing services on a sporadic basis or for independent contractors or separate businesses.
• Minors: Individuals under the age of 18.
• Employees with disabilities: Individuals with physical or mental impairments that significantly limits one or more major life activities and are placed in a job by a nonprofit organization or association, or as part of a rehabilitation program.
• Temporary Protected Status (TPS) beneficiaries: Certain individuals from specific foreign countries beset by extraordinary and temporary conditions such as natural disasters and civil wars.
• Asylees and refugees: Non-U.S. citizens who typically have left their own country and are unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
• Foreign students: Individuals traveling temporarily to the U.S. to pursue a full course of study in an approved program in either an academic or vocational institution, or a recognized nonacademic institution. Academic institutions include colleges, universities, seminary, conservatories, academic high schools, elementary schools, other institutions, and language training programs.
• Exchange visitors: Individuals traveling temporarily to the U.S as participants in exchange programs administered by the U.S. Department of State.
• E-Visa holders: Treaty traders and investors who are citizens or nationals of a country that has a treaty of commerce and navigation with the U.S. and who travel to the U.S. under such treaty. This category also includes Australian specialty occupation workers.
• NAFTA (TN) workers: Professionals and other workers from Canada and Mexico traveling temporarily under the North American Free Trade Agreement (NAFTA), which created special economic and trade relationships for the U.S., Canada, and Mexico.
• Temporary nonimmigrant workers: Individuals traveling to the U.S. lawfully as nonimmigrants to work temporarily in the U.S.
• Mergers and acquisitions: Employers’ Form I-9 responsibilities may be affected when they are acquired by or merge with another company.
• Employees resuming their job after a temporary break in employment: Individuals may be considered to be continuing in employment (with no new Form I-9 required) if, for example, they return to work after taking approved paid or unpaid leave or being laid off.

Exceptions for Completing and Retaining Form I-9

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:

1. Individuals not physically working in the U.S.
2. Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times (some limitations to this exception apply); and individuals hired for employment in the CNMI on or before Nov. 27, 2009.
3. Individuals employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis.
4. Independent contractors or individuals providing labor if they are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).

Employers can find more information about the Form I-9 requirements in the USCIS Handbook for Employers on the USCIS website.

BAL can help!

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!