A foreign professional, trainee or a seasonal worker may obtain an H visa for work in the United States. The Immigration and Nationality Act of 1952 (INA) provides the statutory authority for H visa categories, which are (a) H-1B for professionals; (b) H-1C for nurses; (c) H-2A for temporary or seasonal agricultural workers and (d) H-2B for temporary, nonagricultural workers and trainees. In addition, dependents of those applying or who have H visas can apply for H-4 visas, which do not permit employment. The INA imposes annual limits on the number of H visas issued.
USCIS‘ processing of an H-visa petition begins when an American employer files a petition for a nonimmigrant worker on Form I-129 and an H Classification Supplement. Prior to filing the petition, the employer must first submit an application with the U.S. Department of Labor (DOL). For example, for H-1B cases, the employer must file a labor condition application (LCA), Form ETA-9035, with DOL, which will then certify this form. For H-2 cases, the employer must file a temporary application for alien employment certification, Form ETA-750 Part A, with DOL. Once it approves the temporary labor certification, the employer must file it with the H-2 petition.
It should be noted that only American employers may petition for foreign workers. A given employer files a petition with USCIS service center having jurisdiction over his place of employment. The employer may request a change of the beneficiary’s nonimmigrant status to H if he is lawfully in the United States on another nonimmigrant status. He can also request that USCIS notify an American consulate of the approval of the visa petition if the alien is or will be outside the United States. In either case, if approved, USCIS service center will issue a Form I-797, Notice of Action, approving the H-1B petition. If the beneficiary is in the United States, and a change or extension of status is granted, USCIS will issue Form I-797-A with a tear-off I-94 card, Arrival/Departure Record, designating the new status. If the beneficiary is outside the United States, USCIS will issue Form I-797-B with a tear-off consular notification card.
An employer may also expedite the processing through the premium processing option available for H visa categories. If he expedites the processing, USCIS must issue the decision within fifteen calendar days or automatically refund the premium processing fee. The employer may request premium processing when filing the H petition or while the application is pending. If, however, USCIS issues a request for evidence, then the fifteen-day period begins from the date the employer responds to the request.
If the beneficiary is outside the United States at the time of the approval, he will use the H approval notice (Form I-797-B) to apply for the visa at an American consulate. Most American consulates will issue a visa upon presentation of an original Form I-797 approval notice along with any other required documents showing eligibility for the appropriate visa classification. At the consulate, the beneficiary must submit a Form DS-156, Nonimmigrant Visa Application, to obtain the visa. In addition, all male visa applicants between the ages of sixteen and forty-five, regardless of nationality, must file Form DS-157, Supplemental Nonimmigrant Visa Application. The consulate will issue a visa for the duration of the petition unless a reciprocity agreement exists, reducing the time period. The beneficiary must enter the United States during the period the visa is valid. Spouses and children of H-visa applicants, who are outside of the United States, must apply for H-4 visa stamps with their Forms DS-156 and the principal’s original Form I-797 or I-94, showing lawful admission to the United States as an H-visa holder. If USCIS denies an H-visa application, the petitioner may appeal the denial to the Justice Department’s Administrative Appeals Office (AAO).
Admission to the United States and Extension of Stay
Once in the United States, the H-visa holder will receive at the port of entry an I-94, with the period of admission stated thereon. If the H beneficiary is already in the United States, USCIS will issue an I-94 as part of I-797-A approval notice, showing that the beneficiary is allowed to work in the United States. If the beneficiary departs the United States, he will need to apply for an H-visa stamp while abroad in order to return to the United States.
To extend the validity of the H visa, the employer files a Form I-129 and an H Supplement, accompanied by the petitioner’s statement showing that the basis for the classification continues to exist. The employer must also prepare an LCA. Derivative beneficiaries must file requests for extension on Form I-539. If the petitioner requested the extension before the beneficiary’s status expiration, the alien worker may continue employment with the same employer for up to 240 days while awaiting a decision from USCIS. Portability rules established by the American Competitiveness in the 21st Century Act (AC21) allow certain beneficiaries (who have previously had an H-1B visa or H-1B status) to “port”, that is, begin working for a new employer as soon as the new employer files the H-1B petition with USCIS, as described in AC21 §105(amending INA §214(m)(1), re-designated as Subsection (n)(1). The beneficiary is not subject to the 240-day limitation when changing employers under AC21’s portability provisions. Pursuant to 8 CFR 214.2(h)(10)(iii), the petitioner may not appeal a denial of his request for an extension of stay.