TEMPORARY WORK VISAS - FREQUENTLY ASKED QUESTIONS

Question: Am I required to file an application or other request with the US Department of Labor for every foreign national employee?

For the H1B, H2A and H2B nonimmigrant classifications, it is necessary to first request certain types of certification from the US Department of Labor (DOL). For H1B nonimmigrants, a Labor Condition Application, and for H2A and H2B nonimmigrants, an Application for Alien Employment Certification must be filed in accordance with the DOL requirements.

It is not necessary to file an application or attestation with the DOL for the other nonimmigrant, employment-based or investor-based visa classifications previously listed.

Question: What happens after I have filed a Petition for a Nonimmigrant Worker?

After you file, the USCIS will send you a receipt so you know that they have received your petition. If your petition is incomplete, the USCIS may have to reject it and return your fee, or ask you for more evidence or information, which will delay processing. The USCIS will notify you when they make a decision. If the prospective employee is in the US in a valid nonimmigrant status, he or she can begin working for the employer upon approval of the petition, provided that the application form contained a change of status or extension of stay request that was also approved.

If the prospective employee is residing outside the US or appears to be ineligible to change his or her status while in the US, the petition will be sent to the US consulate nearest the prospective employee’s foreign residence. The prospective employee can then apply at the US consulate for a nonimmigrant visa. If the visa is issued, he or she will then be able to travel to the US and apply for admission.

Question: Can an employer request expedited adjudication of a Petition for a Nonimmigrant Worker?

An employer may request Premium Processing Service when filing the Petition for Nonimigrant Worker. Premium processing is an expedited service that gurantees a response from the USCIS within 15 calender days. The regular processing time often takes several months. The USCIS charges an additional $1,000 filing fee for employers that request premium processing service.

Question: How long may a nonimmigrant employee stay in the US?

The initial period of stay granted to a temporary employee varies depending upon the specific visa category. Likewise, the maximum period of initial stay allowable varies depending upon the specific visa category and on the foreign citizen’s intended employment. This information may be found on the Form I-94 that the employee received upon entering the US or on the USCIS issued approval notice, in the case of a change of status or extension of stay. As noted below, in certain cases, a foreign national may seek to remain in a nonimmigrant classification longer than the period for which he or she was initially admitted or granted, up to the maximum period allowable by law.

Question: How can an employee extend his or her status if it is about to expire?

If it appears that an employee may be needed longer than the period for which he or she was admitted in his or her current nonimmigrant status, an employer may be able to file a new Petition for Nonimmigrant Worker on behalf of the employee. To avoid disruption of authorized employment, employers are encouraged to file a petition to extend the employee’s status well before it expires. Note, however, that if the employee has already stayed for the maximum period of time allowable, an extension may not be granted.

Question: If I filed for an extension of status for my employee, but have not received a decision by the time his or her status expires, can I continue to employ him or her?

If:
• USCIS receives a Petition for Nonimmigrant Worker to extend an employee’s status before his or her status expires and;

• The employee has not violated the terms of his/her status; and

• The employee meets the basic eligibility requirements;

then the employee may continue to be lawfully employed for a period of up to 240 days, or until USCIS makes a decision on the extension application, or until the reason for your requested extension has been accomplished – whichever comes first. If the request for extension is denied and the employee’s status has already expired while the employee is in the US, he or she will be considered to have been “out of status” as of the date his/her status expired. If this should happen, the employee will be required to cease employment immediately and depart from the US upon denial of the petition. There is no appeal to a denial of a request for an extension of status. The period of time that the foreign national has been “out of status” may affect his/her ability to return to the US following his/her required departure.

Question: What is H1B Portability?

Section 105 of the American Competitiveness in the Twenty-First Century Act (AC21) provides that a nonimmigrant who was previously issued an H1B visa, or provided H1B nonimmigrant status, may begin working for a new H1B employer as soon as that new employer files a “nonfrivolous” H1B petition on the nonimmigrant’s behalf, if:

• The nonimmigrant was lawfully admitted to the US; and

• The nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and

• The nonimmigrant has not been employed without authorization since his lawful admission to the US, and before the filing of the nonfrivolous petition.

The H1B worker is authorized to work for the new employer until the petition is adjudicated.

Question: What are employers liable for once a nonimmigrant is in their employ?

Under immigration law, an employer is liable for the reasonable costs of return transportation abroad for a foreign citizen employee in the H1B or H2B visa categories, if the employer dismisses the employee from employment before the end of the period of authorized admission.

If employment is terminated for an employee in the O or P visa categories, for reasons other than voluntary resignation, the employer and the petitioner are jointly and severally liable for the reasonable costs of return transportation for the foreign national employee.

Employers must keep USCIS informed of any firings, termination of employment, or changes in the employee’s eligibility by submitting a letter to the USCIS office that has jurisdiction over the particular application or petition. Please note that the employee may only perform the duties described in the petition. As an employer, you also have many other labor-related responsibilities separate and apart from those required under the immigration laws. For information regarding these other responsibilities, please contact the appropriate US Government or State agency. All US employers are required by law to verify the employment eligibility of all workers employed in the US regardless of their immigration status through the Form I-9, Employment Eligibility Verification, process.

Question: Can I file a Petition for Nonimmigrant Worker even though I may wish to help this employee get permanent resident status?

When applying for the nonimmigrant visa at a US embassy or consulate abroad, nearly all applicants must prove that their intention is to remain in the US temporarily and to depart after they have fulfilled the purpose of their intended stay for which they are seeking a nonimmigrant visa, whichever is shorter.

There are certain exceptions. For example, H1B, L1A and L1B nonimmigrant workers may be able to maintain lawful nonimmigrant status and, at the same time, be beneficiaries of an immigrant visa petition, even if the workers themselves may have taken certain steps toward obtaining lawful permanent resident status without affecting their nonimmigrant status.

In the case of other classifications, the mere filing of an immigrant visa petition on behalf of a nonimmigrant worker, without any action taken on the part of the worker himself or herself, may not necessarily have an adverse effect on the worker’s nonimmigrant status.

Question: If I want to hire more than one employee, can I include all of them on one petition?

This depends on the particular nonimmigrant visa classification that you are seeking for the prospective employees.

• The H1B, H3, O, and R visa categories do not allow for multiple employees on one petition.

• For L1 visa categories, although a prospective employer may file a single “blanket petition” to establish the requisite intracompany relationship, once the blanket petition has been approved, each individual employee seeking to work for the blanket petitioner must still file his or her own Nonimmigrant Petition Based on Blanket L Petition.

• For the H2A, H2B, P, and Q nonimmigrant visa categories, a single petition may cover multiple workers if the workers meet certain specified conditions.

Question: Can my employee change employers or work for more than one employer at the same time?

Yes, but each employer must file a separate Petition for Nonimmigrant Worker and, where applicable, the appropriate Labor Certification, Labor Condition Application, or Labor Attestation with the DOL, and receive approval from USCIS before the employee may begin to work for a new or an additional employer. Please note that a foreign citizen who is eligible for H1B portability may begin working for the new or additional employer once that employer has appropriately filed the Petition for Nonimmigrant Worker with USCIS.

THE INFORMATION ON THIS WEBSITE IS NOT TO BE CONSIDERED LEGAL ADVICE. SUCH INFORMATION IS INTENDED TO EDUCATE MEMBERS OF THE PUBLIC GENERALLY AND IS NOT INTENDED TO PROVIDE SOLUTIONS TO INDIVIDUAL PROBLEMS. READERS ARE CAUTIONED NOT TO ATTEMPT TO SOLVE INDIVIDUAL PROBLEMS ON THE BASIS OF INFORMATION CONTAINED HEREIN AND ARE STRONGLY ADVISED TO SEEK ADVICE FROM AN EXPERIENCED IMMIGRATION LAWYER REGARDING SPECIFIC CASE SITUATIONS.

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