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(#71-01/01/98)

What to watch for regarding H-1B visa petition


US Immigration Question:

As an employer, I am thinking about sponsoring for an H-1B for one of my employees who has a valid practical training card. Please tell me about the basic tips of H-1Bs. I heard that it is taking quite long time these days to get an H-1B.


Answer:

During each fiscal year (i.e. October 1, 1997 to September 30, 1998) the US Immigration laws limit new H-1B nonimmigrant visas to 65,000. Last year that limit was reached in late August, thus many aliens had to wait until October 1 for the INS to approve petitions, even though the company had filed the H-1B petition prior to the limit being reached. This year it is anticipated that the H-1B limit will be reached possibly by May or June 1998. In fact, during October 1997, the first month of the current fiscal year, 8,668 H-1B petitions for this fiscal year were approved. With this in
mind, many employers should consider filing H-1B petitions early this year. The INS permits an H-1B petition to be filed up to 4 months before the date for commencement of the alien's employment.

Aliens are limited to a maximum of 6 years in H-1B status; initial admission may be for a maximum of 3 years. The time is determined by the employer. Therefore, if an employer wants to only guarantee 1 year of employment, then the alien will receive only a 1 year visa. After the time limit is reached the alien is required to remain out of the US for at least 1 year before he or she can be readmitted in either H or L visa status.

Employers who file petitions for aliens who are currently working on practical training should indicate a start date for H-1B visas for the day after the practical training expires. One significant reason is that the IRS does not require aliens working in the US on practical training to pay both social security (6.2% of the wages) and medicare (1.45% of the wages). Since the alien is not required to pay it, the employer does not need to withhold this amount from the alien's paycheck or match the amount withheld for the company's tax return. [Federal income tax, state income tax, and state disability coverage must be withheld from the alien's paycheck.]

OTHER H-1B TRIVIA

(1) The job can be either full-time or part-time

(2) H-1B visas generally require a BA degree related to the job. However, the alien can substitute 3 years of work experience for each year of a BA education that is missing as long as the work experience is in the same field.

(3) The alien does not need a US BA degree. Foreign degrees are acceptable.

(4) H-1B visas allow "dual intent." Since October 1, 1991, H-1B nonimmigrants no longer need to maintain a foreign residence which they have no intention of abandoning. Therefore, seeking or having sought a green card may not be considered evidence that the H-1B alien is not a bona fide nonimmigrant.

(5) The alien may be admitted to the US up to 10 days before commencement date specified on the INS approval notice, and may remain up to 10 days after the termination date in order to prepare for departure. He or she may not work during these 10-day grace periods. Moreover, the grace period after termination allows aliens to request a change of status to B-2 if he or she is unexpectedly fired by the H-1B sponsor and wants to look for another job or return to school.

 

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