A. Characteristics
1. Permits employment in U.S.
2. Longer duration than B.
3. Facilitates residency (L, E).
4. Duration of stay.

B. H Visas. INA §101(a)(15)(H), 8 U.S.C. §1101(a)(15)(H).
1. Seven Categories of H Visas:
a. H-1B: Specialty occupation.
b. H-1B1: Fast Track H-1Bs
c. H-1C: Professional Nurses Working in Health Professional Shortage Areas (HPSAs).
d. H-2A: Temporary agricultural workers.
e. H-2B: Skilled/unskilled workers provided USCs/LPRs unavailable.
f. H-3: Trainees.
g. H-4: Accompanying family members (spouse/children)
2. General Criteria
a. CIS must first approve petition of employer. INA §214(c), 8 U.S.C. §1184(c); 8 C.F.R. §214.2(h)(1).

C. H-1B Visas. INA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b).

1. Criteria-INA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b); 8 C.F.R. §214.2(h); 22 C.F.R. §41.53:

a. Person in a specialty occupation, fashion model of distinguished merit and ability, or person providing service related to Department of Defense (DOD) cooperative research and development project or co-production project.

b. Coming temporarily to U.S.

c. Approval of labor certification or the filing of visa petition does not preclude granting an H-1B petition or extension. INA §214(h), 8 U.S.C. §1184(h). Alien may legitimately have "dual intent."; 8 C.F.R. §214.2(h)(16)(i).

d. Does not require maintenance of a foreign residence.

e. Self-Petitioning/Owner as Petitioner. AAO decisions support the right of a corporation to petition for its owner for an H-1B if the owner is H-1B qualified.

f. Labor Condition Application (LCA) requirement. INA §212(n)(1), 8 U.S.C. §1182(n)(1). Applies to all H-1Bs including fashion models, 8 C.F.R. §214.2(h)(1)(ii)(B)(3), and physicians. The petitioner is required to obtain a certification from DOL that it has filed an LCA in the occupational specialty. 8 C.F.R. §214.2(h)(4)(i)(B)(1).

g. Payment by Employer. If employer dismisses employee must pay reasonable costs of transportation home. INA §214(c)(5)(A), 8 U.S.C. §1184(c)(5)(A); 8 C.F.R. §214.2(h)(4)(iii)(E).

h. Cap of 65,000 H-1B visas per year less the Free Trade Visas for Chile and Singapore Resulting in 58,200 H-1B Visas. INA §214(g)(1)(A), 8 U.S.C. §1184(g)(1)(A); Pub. L. 108-77 and 108-78. Only "new employment" is covered under the cap.

i. Must be permanent position (unlike H-2) which must be temporarily filled.

j. Petitioner must be U.S. employer. 8 C.F.R. §214.2(h)(4)(ii).

k. Portability. New employment upon filing petition. A person in H-1B status may accept new employment upon the filing of a new petition by the prospective employer if: (1) s/he was lawfully admitted; (2) the new petition is "nonfrivolous"; (3) the new petition was filed before the date of expiration of the period of stay authorized by the AG; and (4) subsequent to such lawful admission the H- 1B beneficiary has not been employed without authorization before the filing of such petition.

l. Termination. An H-1B who is terminated from his position or is unemployed is not considered to be maintaining lawful status.

m. Penalty vs. Liquidated Damages. An employer may not impose a penalty on an H-1B employee for leaving his employment. INA §212(n)(2)(C)(vi)(I); 20 C.F.R. §655.731(c)(10)(i)(C). However, an employer may require an employee to sign a liquidated damages clause as long as such clause is valid under state law.

Specialty occupation encompasses the definition of professional. "Professional" has been previously defined to include:

(1) Accountant.

(2) Acupuncturist.

(3) Chef.

(4) Chiropractor.

(5) Computer Programmer.

(6) Dietician.

(7) Electronics specialist.

(8) Fashion designer.

(9) General Manager (but only where business is complex).

(10) Graphic Designer.

(11) Hotel management.

(12) Industrial designer (with B.A.).

(13) Interior designers (commercial).

(14) Investment Analyst.

(15) Journalist.

(16) Librarian.

(17) Marketing Research Analyst/Senior Market Analyst.

(18) Medical records librarian.

(19) Medical Technologist.

(20) Minister.

(21) Orthopedist.

(22) Pharmacist.

(23) Showroom Manager.

(24) Social Worker.

(25) Software Design Engineer

(26) Technical Publications Writer.

(27) Vocational Counselor.

(28) Webographer.

Position will be considered professional position if listed in INA §101(a)(32); 8 U.S.C. §1101(a)(32). The CIS views position as professional where "it requires theoretical and practical application of a body of highly specialized knowledge ..." 8 C.F.R. §214.2(h)(4)(ii);

3. Attestation Requirements for H-1B-INA §212(n)(1), 8 U.S.C. §1182(n)(1). Before an H-1B application can be submitted an employer must obtain certification of a labor condition application. 20 C.F.R. §655.700(a)(3).

(1) To offer to H-1Bs the "required wage," which is the greater of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment at the place of employment or the prevailing wage for the occupation in the area of employment based on the best information available.

(2) To provide working conditions for H-1Bs that will not adversely affect other workers similarly employed. Working conditions commonly refer to matters "including hours, shifts, vacation periods, and fringe benefits." 20 C.F.R. §655.732(b).

(3) To attest that there is no strike or lockout in occupational classification at the place of employment.

(4) To provide notice to the bargaining representative if any, or to post notice that a labor condition application has been filed.

n. Mexican TN Applicants. Mexicans desiring TN status are no longer required to obtain approved petitions or LCAs. 8 C.F.R. §214.6(d). And there is no longer a numerical cap of Mexican TNs. 69 Fed. Reg. 11287-90 (Mar. 10, 2004).

5. Payment of Transportation by Employer:

a. If H-1B is dismissed before the end of the period for admission the employer must pay "the reasonable costs of return transportation of the alien abroad." INA §214(c)(5)(A), 8 U.S.C. §1184(c)(5)(A), 8 C.F.R. §214.2(h)(4)(iii)(E). The enforcement of this provision is regarded as a private contractual matter.

o. Documentation-8 C.F.R. §214.2(h)(4)(iv).

(1) Degrees; evidence of experience; written contracts. Sometimes need educational evaluation of person whose credentials were obtained abroad or evaluation of experience and education; affidavits of experts; translations. The Service should not challenge the credential evaluation if it is from a reputable company unless the evaluation contains obvious errors.

(2) License, temporary license, or without any license where person authorized to fully perform work under state law. 8 C.F.R. §214.2(h)(4)(v). Can only receive approval for the period of temporary licensure. 8 C.F.R. §214.2(h)(4)(v)(E). Where lack of license is solely due to inability to obtain social security card which H-1B may not obtain because s/he is not in U.S., an H-1B petition may be approved if s/he provides evidence from state licensing board that the lack of an SS card is the only obstacle to licensure.

(3) Photocopies may be submitted. 8 C.F.R. §214.2(h)(2)(i)(A).

(4) H-1B (unlike I-140) need not provide proof of ability to pay salary.

i. Changes in employment-INA §214(c)(10); 8 C.F.R. §214.2(h)(2)(i)(D).

(1) An amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner. INA §214(c)(10), 8 U.S.C. §1184(c)(10).

(a) Returning at Port of Entry. When there is a successor employer and H-1B returning at port of entry, s/he should present a letter stating that the new corporate entity has succeeded the previous employer and that the terms and conditions of employment remain the same.

(2) Termination of Employment. Leave under the Family and Medical Leave Act does not terminate the H-1B relationship with the employer. If the petitioner no longer employs the beneficiary, the petitioner "shall" send a letter explaining the change to the director who approved the petition. 8 CFR §214.2(h)(11)(i)(A).

(3) Portability. Employment upon filing petition. A person in H-1B status may commence new employment upon the filing of a new petition by the prospective employer if: (1) s/he was lawfully admitted; (2) the new petition is "nonfrivolous"; (3) the new petition was filed before the date of expiration of the period of stay authorized by the AG of the H-1B beneficiary; and (4) subsequent to such lawful admission the H-1B beneficiary has not been employed without authorization before the filing of such petition. INA §§214(n)(1), (2)(A)-(C). Filing is defined at 8 C.F.R. §103.2(a)(7)(i) as physically received by CIS.

(4) Where beneficiary switches employers and obtains a longer date on the petition and extension of stay filed by the second employer, his stay will be governed by the longer date. This is true even though the employee was admitted into the U.S. under the first petition while the extension of stay was still pending.

(5) If an amended petition is filed it must be accompanied by a new LCA. However, where an LCA exists at another worksite, transfer to that worksite does not require an amended petition. "As long as the LCA has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligations are met, no amended petition would be required regardless of when the LCA was filed and certified, as long as the certification took place before the employee was moved."

(6) Short Term Placement. 20 C.F.R. §655.735(c). An H-1B in the U.S. under an LCA may be sent to a new worksite which is not covered by an LCA in the occupation but only up to a maximum of 30 days each year and up to 60 days each year if the H-1B spends substantial time at a permanent worksite, if s/he continues to maintain an office or work station at the permanent worksite and if her U.S. residence or place of abode is located in the area of the permanent worksite.

(7) Multiple Employers. H-1B can work part-time for more than one employer, but each must file a petition. When H-1B switches to a second company for several months and returns to initial company, the second company needs to file an H-1B but the first company need not file a petition upon the H-1B's return as the first petition remains valid. There is no set number of hours that beneficiary must work for each employer.

(8) Extension of stay to work for same employer, if timely filed, continues employment for 240 days beyond expiration of the I-94 while decision pending.

(9) Reduction in Force (RIF) as termination. If company has RIF policy but gives H-1B employee several months severance after RIF, the H-1B ceases status from the day he stops employment not the day his severance ends.

(10) Employer Where Person Referred

(a) Who is the employer when an agency hires the employee and refers her to the ultimate employer? At least one court has found that the employer for purposes of determining H-1B status is the ultimate employer not the agency.

(b) Professional Employer Organizations (PEO). Where employer hires a PEO to handle its administrative matters in regard to its employees such as payroll and health insurance but the employer still retains control over the day-to-day activities of the H-1B, the employer can petition (and would be responsible) for the H-1B because it would still be considered the U.S. employer as defined under 8 C.F.R. §214.2(h)(4)(ii). A PEO could file for an H-1B if it met the definition of a U.S. employer under the regulations and was not simply a record keeper or accountant.

(11) Revocation-8 C.F.R. §214.2(h)(11)-Automatic if petitioner dies, goes out of business or withdraws petition.

j. By notice-May revoke if: (a) beneficiary is no longer employed in same capacity; (b) petitioner violated the terms of the approved petition, and (c) where statements in original petition incorrect. Petitioner may rebut evidence presented by Director.

k. Appeal:

(1) No appeal from automatic revocation.

(2) Appeal from Notice of Denial to Associate Commissioner.

6. Admission and Extension for H-1B-8 C.F.R. §§214.2(h)(9), (13), (15).

a. Petition approval for 3 years on I-797. However, in a specialty occupation it may not exceed the period of validity of the LCA, 8 C.F.R. §214.2(h)(9)(iii)(A)(1), and in a DOD project it may be up to 5 years. CIS officers should not be arbitrarily limiting approvals to time period left on professional license when such license, e.g., teaching, is renewable.

b. Admission is for maximum (including extensions) of 6 years. 8 C.F.R. §214.2(h)(13)(iii). The 6-year limit applies to spouses and dependents in H-4 status. 8 C.F.R. §214.2(h)(9)(iv). The 6-year limitation does not apply to an alien who resides less than 6 mos./yr in U.S., or who is a seasonal or intermittent employee. 8 C.F.R. §214.2(h)(13)(v). Periods where alien unemployed in U.S. or failed to maintain status would be counted toward the 6-year limitation. Departures from U.S. that are meaningfully interruptive of the H-1B employment may toll 6-year limitation. Cannot exceed 6 years by changing from H to L or L to H and cannot extend 6-year rule by changing employers at end of the 5th year. Time spent in L status counted toward the 6-year period for H.

Admission will be for the validity period of the petition, plus a period of up to 10 days before the period runs and 10 days after expiration. 8 C.F.R. §214.2(h)(13)(i)(A). The 10-day period however does not apply to an H-1B who is terminated. There is no "grace period" for a terminated employee.

An H-1B may extend his or her status beyond the 6-year limitation if a labor certification, an I-140 or employment-based adjustment application has been filed where 365 days or more have elapsed, since the filing of a labor certification (where one was required) or the filing of the I-140 petition. H-1B status shall be extended in one-year increments. See AC21, Pub. L. 106-313 §106(a); Adjudicator's Field Manual at 31.1(b), 31.2(d) and 31.3.

c. Extensions of visa petition and extension of stay all filed on an I-129. 8 C.F.R. §§214.2(h)(14), (15). A request for a petition extension cannot be filed if stay expired. The request for an extension must be accompanied by the new LCA. A person may even travel abroad while an extension is pending. Approval via cable will be sent to the appropriate consular post upon petitioner's request.

d. Filing During Pendency of LPR applications. An H-1B may apply for an extension of status (including dependents), a new H-1B petition, or a change of status to another H or L category even if s/he has filed an application for or received an approval of a LC, an IV petition or filed an A/S application. 8 C.F.R. §214.2(h)(16)(i). However, if H-1B with pending A/S applies for an EAD based on A/S and works for another employer, her H-1B status is violated. Adjudicator's Field Manual §30.1, App. 23.4, 31-2a. AC21 changes that for those H-1Bs whose A/S applications are pending more than 180 days. INA §204(j).

e. Attending Classes. There is nothing in the INA or the regulations that prohibits an H-1B from attending classes as long as they are incidental to H-1B status.

7. Family Members. Immediate family (spouse and children) accompanying H-1B (or H-2A&B or H-3) will be granted an H-4 visa. The 6-year limit on admission and extensions for an H-1 applies to spouses and dependents in H-4 status. 8 C.F.R. §214.2(h)(9)(iv), but H-4s will get the benefit of any extension the H-1B can obtain beyond the six years where an LC, I-140 or I-360 was filed at least 365 days before the end of the 6th year. AC21 §106 permits extensions till AOS or IV applications are approved. If an H-1B reaches the maximum period and cannot extend beyond the six years, the H-1B may c/s to H-4 and remain in the U.S. based if his spouse or parent (the principal's) status has not expired. An H-4 is not necessary and a child or spouse can accompany or follow to join the beneficiary with a B-2 if it is inconvenient or impossible to apply for H-4. 9 FAM 41.53 N18.4. An H-4 in status need not file an extension when the principal H-1B changes employment. Servants accompanying family may enter on B-1s. 9 FAM 41.53 N16.

8. Travel and Employment Authorization While Adjustment Application is Pending-If an H-1 is not under exclusion, deportation, and removal proceedings and is in valid H-1 status, s/he may travel while her A/S application is pending without an advance parole if she: (1) is coming to resume employment with the same employer her H-1 is authorized for; (2) is in possession of a valid H visa; and (3) is in possession of the original I-797 receipt. Dependent family members in lawful H-4 status may also travel during the A/S if the same conditions for the H-1 principal exist. 8 C.F.R. §§245.2(a)(4)(ii)(C), 1245.2(a)(4)(ii)(C).

D. Fashion Models. 8 C.F.R. §214.2(h)(4)(ii).

1. Standard-Fashion models are retained under the H-1B category if they can demonstrate they are of distinguished merit and ability. The applicable standard requires the model to show that s/he is prominent in his/her field and that the position requires prominence. Prominence means a "high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered ... The person must be renowned, leading or well known." This category does not include support occupations such as hair stylists and make-up artists who may apply through O-1 or H-2B categories. 59 Fed. Reg. 41818 (Aug. 15, 1994).

2. Criteria-8 C.F.R. §214.2(h)(4)(vii):

a. Petitioner's Requirements:

(1) Copies of written contract or summary of the terms of the oral agreement;

(2) Services are to be performed for a distinguished event or production or for an organization that has a distinguished reputation or record of employing prominent persons.

b. Beneficiary's Requirements-Documentation of any two of the following:

(1) Achieved national or international recognition evidenced by critical reviews, articles, news stories;

(2) Performing for employers that have a distinguished reputation;

(3) Experts' or critics' recognition;

(4) Commands high salary in relation to others.

3. Fashion Models Under O-1 Category-Fashion models may also qualify under O-1 as extraordinary persons in business but not in the arts.

E. Defense Department Visas for Cooperative Research, Development and Co-production, I.A.90 §222. NIV coming to U.S. on basis of reciprocity to perform services of an exceptional nature requiring exceptional merit and ability in a research, development and/or co- production project provided under a government-to-government agreement administered by the Sec. of Defense.

a. Procedures: Visa is for maximum of 10 years. Extensions will be granted in two- year increments.

(1) Only 100 such visas/status permitted at any one time.

(2) Persons will be processed under the H-1B category. Petitions/Extensions should be accompanied by letter from Dept. of Defense Project Manager. Letter must describe the applicant's duties but details about the project are not required. Must also show person has a BA, higher degree or its equivalent. 8 C.F.R. §214.2(h)(4)(vi).

b. Must have foreign residence that applicant does not intend to abandon.

c. Spouse and children can accompany or follow to join.