Maintaining Your H-1b Visa Status

The majority of people in the United States who have entered as H-1b visa holders believe that because they have obtained the H-1b visa stamp on their passport, they are able to enter, live, and work in the US with no further conditions to abide by. This common mistake could not be further from the truth.

Pursuant to US Immigration Law, there are several requirements for an H-1b visa holder to abide by. Failure to follow the requirements set out by Immigration laws in this country has severe consequences. The consequences can range from allegations of fraud by the United States Citizenship and Immigration Services (USCIS) to being given a Notice to Appear, commonly referred to as an NTA to appear in Immigration Court before a Judge to determine your Removal (Deportation) case. In any scenario, once an individual violates any of the requirements set out by Immigration law for the H-1b visa, the person immediately falls out of legal status in this country and is not able to adjust status to that of a lawful permanent resident. In other words, as soon as the H-1b visa holder fails to satisfy the requirements set forth by the law, he or she falls out of status and is permanently forbidden from obtaining a Green Card after an approved Labor Certification is received. This common misperception is an expensive one to have.

Pursuant to the US Immigration Laws, to keep H-1b visa status, the individual must:

Enter the United States with a valid H-1b visa stamp on his/her passport; Have a bachelors degree from an US University or the equivalent from a foreign school (if have foreign education degree, must have analysis of credentials from evaluator); Professional job offer from US company which is closely related to the training and background of the applicant; Filing of Labor Certification Attestation with the Department of Labor; Prevailing wage survey conducted by the local state employment agency to protect the employer; and Work as an employee for the US company that petitioned him/her for the H-1b visa.

* The applicant need not show non-immigrant intent. Hence, the visa cannot be denied based on the applicant saying he or she intends to stay living in the United States.

Education: In regards to education and experience, the US government generally requires a Bachelors degree or the equivalent from a foreign school for granting of this type of visa. However, if the person does not have a Bachelors degree or the equivalent but has several years of experience in the same field, he or she may still qualify to obtain theH-1b visa.

Change of Employer: An H-1b visa holder is authorized to change employers once he is in the United States. However, it is extremely important to understand that a completely separate process is necessary for the individual to change employers. A change of employer requires a new H-1b visa provided by the USCIS. This process is not subject to the annual cap on H-1b visas and does not have to be done at any specific time during the year. The process must be done prior to the change of employer. The H-1b visa holder cannot begin new employment until the new H-1b visa is approved.

Application for Lawful Permanent Residence (Green Card): After the Department of Labor approves a Labor Certification for an individual, many people run to submit their I-485 petitions mistakenly believing that they are now eligible to adjust their status and obtain their lawful permanent residence card (Green Card). Unfortunately, these people end up wasting thousands of dollars, time, and years of waiting to ultimately find out they have been denied. Not only do they receive a notice of denial in the mail and do not get a refund for their filing fees, many of them also receive an order of removal as well.

Labor Certification Process: The essential element to understand when filing a Labor Certification is that the applicant must be in legal immigration status. If the applicant is not in legal immigration status in the United States, the applicant cannot benefit from the approved Labor Certification. The approved Labor Certification would then belong to the US employer to do with whatever it wants. Many employers utilize the pre-approved Labor Certification as part of their benefit package when recruiting employees from abroad. The potential foreign employee is then more likely to accept the job since he or she would be able to obtain lawful permanent residence much faster since he or she would benefit from the priority date of the previously filed Labor Certification.

All the above elements are essential to maintaining legal H-1b visa status. As one can see there are many benefits to protecting your legal status. If you have any questions or concerns regarding your current employment visa, Labor Certification, or your eligibility to adjust status based on Labor Certification, make sure to contact an Immigration attorney who can clarify your concerns and can advise you on the alternatives available to you.

About the Author:

Attorney Sonia M. Muñoz is the President of Immigration Legal Council, LLC. (ILC), a South Florida-based law firm, handling cases in all 50 states. The firm is very active in protecting the rights of Immigrants and in assisting foreign professionals to legally enter and work in the United States. You can find more information about ILC and different methods of entry into the US on their website at www.ilclawfirm.com, or by calling us at 1-866-482-8472 (VISA). Initial Consultation is FREE.

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