An H-1B applicant can avoid the quota if she/he falls into a category of exempt employment. If the individual has an offer of employment at “an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization” he/she will not be counted within the cap. 

            A June 6, 2006, U.S. Citizenship and Immigration Services (USCIS) memo clarified the scope of this provision and expanded the categories of H-1B workers who are eligible for cap exemptions by being employed at institutions of higher education.  The memo also restricted the same exemption by narrowing the definition of “qualifying related nonprofit and research organizations” eligible to claim the exemption.

            The H-1B count exempts from the cap a beneficiary who is employed at an institution of higher education or an affiliated nonprofit entity.  The USCIS accepts the definition of “institution of higher education” as set forth in section 101(a) of the Higher Education Act of 1965 in determining whether an institution qualifies for the exemption.  As for the definition of “affiliated non-profit entity,” the USCIS has incorporated the definitions codified in the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA).  It defines the scope of the exemption as follows:

            An affiliated or related nonprofit entity:  A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

       Petitioners should therefore be prepared to submit documentary evidence that such a relationship exists between their organization and the institution of higher education according to this criteria.  This can include memoranda of understanding, corporate documents, or other evidence of the qualifying affiliation.  As I’ve written previously, some public school districts may be exempt from the numerical limitations when hiring employees under the H-1B program, if they are “affiliated” with an institute of higher education – as in through an alternative certification program which has an official agreement with them by which they recruit new teachers. 

“Employed (or has received an offer of employment) at“

            In certain In certain situations petitioners that are not themselves a qualifying (exempt) institution may nevertheless claim this exemption if the beneficiary will perform all or a portion of the job duties “at” a qualifying institution.  Petitioners filing under these circumstances are known as “third-party petitioners.”  In determining whether the employer meets the exemption criteria, the USCIS looks at the nature of the job duties, the place of employment, and the relation of the third-party petitioner to the qualifying institution to decide if the petitioner merits the exemption. Basically the USCIS weighs whether the employment of the beneficiary directly and predominantly furthers the essential purposes of the qualifying institution, such that the exemption is warranted.Id.  To establish that the duties “directly and predominantly” further the essential purpose of the qualifying institution, the third-party petitioner must show that there is a logical nexus between the work performed by the beneficiary and the normal, primary, or essential work performed by the qualifying institution.  The third-party petitioner has the burden of proof to establish that the majority of the beneficiary’s job duties fulfill this requirement.  The petitioner should be prepared to submit as supporting evidence, a list of the beneficiary’s job duties, the percentages of time allocated to each duty and a description as to how these duties correspond to the mission of the qualifying organization. The third-party petitioner should also submit a contract with the qualifying institution that outlines the terms and conditions of their relationship, and how the beneficiary’s employment with the qualifying institution relates to its purpose and mission.

            For more information on the H-1B Visa category, exempt organizations, employer attestations, worker extensions and/or adjustments of status, contact the immigration attorneys of Smith & Garg, P.C. in Houston-Westchase or The Woodlands, Texas.  

·         Each visa requires different supporting documentation that must be presented to the consular officer.  For example, applicants for an F-1 Student Visa must not only have proof of their admission to a qualifying institution and a corresponding I-20; they must also have proof of sufficient “ties” to their home country, such as property, financial commitments or family, to show that they have no intention of “abandoning” their home country in favor of a permanent stay in the U.S. 

·         Applicants for employment-based petitions – H-1B, L-1A, L-1B, etc. – must show documentation supporting the existence of a bona fide job opportunity, proof of the employing company’s viability, and in the case of H-1B occupations, proof that the job is one that requires at least a Bachelor’s degree or its foreign equivalent in the specific field of employment, and that the alien has such a degree.

·         While documentation is important, the consular officer is most concerned with the how the alien presents his or her case at the interview.  If an attorney has assisted in the preparation of your case, make sure you are aware of everything that has been submitted, the reasons for their submission, and be prepared to explain exactly why you are seeking entry to the U.S. 

·         Since the events of 9/11, the visa process has become subject to an increased level of delay; what the State Department calls “administrative review.”  Reasons for this type of delay can include:  an applicant has a criminal history (even minor crimes); the applicant has a name and date of birth that closely resemble someone who is a known criminal or on the government’s terror watch list; the applicant is from a country designated as a “state sponsor of terror;” or the consular believes that the applicant will be exposed to sensitive, and potentially dangerous technology during his/her visit to the U.S.  Applicants subject to such delay should remain calm and patient, and be prepared to submit additional evidence to the officer to establish eligibility and/or admissibility.

            The Bottom Line: even applications which seem routine can become complicated if certain information is left out, or if the applicant does not understand the law, the procedures, and the specific eligibility requirements.  Those interested in seeking entry into the U.S. are advised to seek the assistance and advice of an experienced immigration attorney knowledgeable in both USCIS and Consular processes.  The experienced immigration attorneys of Smith & Garg, in The Woodlands, Spring, Conroe and Houston, Texas, can assist you in determining your rights and responsibilities, whether you are an employer or employee.  Contact us today for a consultation. 

H-2B Visa Program – Background and Employer Responsibilities

            Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (INA) defines an H-2B worker as a “nonimmigrant admitted to the U.S. on a temporary basis to perform temporary nonagricultural labor or services.”  The DOL’s role in the H-2B visa program stems from its obligation, outlined in DHS regulations, to certify, upon application by a U.S. employer requesting admission of H-2B workers, that there are not enough able and qualified U.S. workers available for the position sought to be filled and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers.  DHS regulations provide that an employer may not file a petition with DHS for an H-2B temporary worker unless it has received a labor certification from the DOL, or received a notice that a certification cannot be issued. 

            Under current procedures, the employer must demonstrate that its need for the services or labor is temporary as defined by one of four regulatory standards: (1) A one-time occurrence; (2) a seasonal need; (3) a peak-load need; or (4) an intermittent need.  The employer must currently submit to the state workforce agency a detailed statement of temporary need and supporting documentation with the application for H-2B labor certification. Such documentation must provide a description of the employer’s business activities and schedule of operations throughout the year, explain why the job opportunity and the number of workers requested reflects its temporary need, and demonstrate how the employer’s need meets one of these four regulatory standards. The employer must also establish that the temporary position is full-time and that the period of need is generally one year or less, consistent with the standard under DHS regulations.  Additionally, the employer must recruit from the U.S. labor market to determine if a qualified U.S. worker is available for the position.

            Employers and employees alike, who may be uncertain as to what these rules mean to and require of them, should consult an immigration attorney knowledgeable about employment-based immigration.  The experienced immigration attorneys of Smith & Garg, in The Woodlands, Spring, Conroe and Houston, Texas, can assist you in determining your rights and responsibilities, whether you are an employer or employee.  Contact us today for a consultation.   

Background

The Immigration and Nationality Act (INA) allows certain aliens in removal proceedings the option of accepting “voluntary departure” as an alternative to formal deportation and entry of a formal removal order.  This provision of the INA offers aliens the benefit of being exempt from the ordinary bars to relief in return for their quick departure from the U.S. at no cost to the government.  When choosing to seek voluntary departure, the alien agrees to take the benefits and burdens of the INA together.  In order to obtain voluntary departure at the conclusion of removal proceedings, an alien must establish to the immigration judge by “clear and convincing evidence” that he or she is both willing and able to depart voluntarily.  

The INA specifies that an individual who has been granted voluntary departure has a period of no more than 60 days after the issuance of the order in which to depart the U.S.  Certain penalties apply to aliens who fail to depart within the statutory period allowed.  In addition, the INA provides that an individual has up to 90 days to file a motion to reopen or 30 days to file a motion to reconsider after the entry of a final order issued in removal proceedings.  In the past, the regulations have dictated that an alien’s departure from the U.S. – including voluntary departure – effectively withdraws a motion to reopen or reconsider.  On the other hand, aliens who had accepted voluntary departure and filed a motion to reopen or reconsider ran the risk of overstaying their departure period and facing penalties, if they remained in the U.S. for the pendency and disposition of their motion. 

The nature of this conflict led to a split among circuit courts regarding the relationship between voluntary departure and motions to reopen or reconsider.  While four courts of appeals held that the alien’s filing of a motion to reopen within the time allowed for voluntary departure automatically “tolled” the voluntary departure period (allowing the alien to remain in the U.S. until after the motion had been adjudicated; three other courts of appeals held that the filing of a motion to reopen did not toll the period allowed for voluntary departure. 

The New Rule

The new rule addresses this split among the courts by amending the voluntary departure regulations to state that an alien’s grant of voluntary departure automatically terminates upon the filing of a motion to reopen or reconsider.  The rule stems from the idea that voluntary departure is an agreed upon exchange of benefits between the alien and the Government.  Accordingly, when an alien decides to challenge a final order of removal through a motion to reopen or petition for review, he or she forfeits the benefits derived by being allowed to leave the country voluntarily without retaining the usual penalties associated with a final order of deportation.  The final rule does not adopt the “automatic tolling” approach some circuit courts had taken, explaining that such a provision would be inconsistent with the statutory concept of voluntary departure.  The new rule also allows immigration judges to set a specific dollar amount (not to exceed $3000) as a civil monetary penalty, should the alien fail to depart during the specified time period.

The rule offers some clarity in an area of immigration law in which there has obviously been confusion and inconsistency. Individuals in detention and/or facing removal from this country should consult with an experienced immigration attorney about the details of their situation, to find out the most beneficial form of relief available to them.  Contact the Immigration Attorneys of Smith & Garg in Houston, Westchase, Spring or The Woodlands, Texas for more information.

U.S. employers may file an H-2A petition with USCIS if they have a shortage of available U.S. workers to fill temporary or seasonal agricultural jobs. Once the petition is approved, the employers can hire foreign workers to fill those jobs for a limited period of time. The final rule includes mechanisms to enhance the integrity of the program, increase protection of U.S. workers, and protect H-2A workers from employer and recruiter abuse.

The “Final Rule” includes the following new strategies:

•      Relaxing the current limitations on H-2A employers to petition for multiple, unnamed agricultural workers;

•      Extending from 10 days to 30 days the time a temporary or seasonal agricultural worker may remain in the country following the expiration of his or her temporary H-2A stay;

•      Reducing from six months to three months the time an H-2A worker who has spent three years in the United States must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2A status;

•      Allowing H-2A workers, who are changing from one H-2A employer to another H-2A employer, to begin work with the new petitioning employer upon the filing of a new H-2A petition, (as opposed to having to wait for an approval), provided the new employer is participating in USCIS’ E-Verify Program.

•      Prohibiting H-2A employers and recruiters from imposing fees on prospective H-2A workers as a condition of employment;

•      Requiring an approved temporary labor certification in connection with all H-2A petitions;

•      Requiring employers to notify USCIS when H-2A workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite; and

•      Permitting the approval of H-2A petitions only for nationals of certain countries designated as important to the operation of the program and appearing on a list to be published annually in the Federal Register. The initial list of participating countries to be published simultaneously with this Final Rule includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis a worker from a country not on the list to be eligible for the H-2A program if such participation is in the U.S. interest.

·         This rule will also establish a land-border exit system pilot program requiring H-2A workers admitted through a port of entry participating in the pilot program to also depart through a participating port and to present designated biographic and/or biometric information upon departure.

These reforms could serve as an important step in improving what many on both sides of the immigration debate consider is a broken and out-dated system.  Of course, it’s one thing to have new-and-improved regulations; but quite another to enforce them.  Furthermore, real and comprehensive reform will require not just new rules and regulations, but also vigilance in their compliance and enforcement, on the part of workers, employers, our elected officials, and the general public.  Employers and employees alike, who may be uncertain as to what these rules mean to and require of them, should consult an immigration attorney knowledgeable about employment-based immigration.  The experienced immigration attorneys of Smith & Garg, in The Woodlands, Spring, Conroe and Houston, Texas, can assist you in determining your rights and responsibilities, whether you are an employer or employee.  Contact us today for a consultation. 

T nonimmigrant status is available to aliens who are victims of trafficking in persons and who are assisting law enforcement officials in the investigation or prosecution of the perpetrators.  Similarly, U nonimmigrant status is available to aliens who are victims of certain crimes and are being helpful to the investigation or prosecution of those crimes. The new rules also allow family members of a principal T or U nonimmigrant the ability to apply for adjustment of status to lawful permanent residents. This rule also provides for adjustment of status or approval of an immigrant petition for certain family members of U applicants who were never admitted to the United States in U nonimmigrant status.

Under the Immigration and Nationality Act, individuals who are victims of a severe form of trafficking in persons and who have complied with any reasonable requests for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking, or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime, may be admitted to the United States under a “T” nonimmigrant classification or “T visa.”  Aliens who are victims of specified criminal activity, including trafficking, who assist government officials in investigating or prosecuting those crimes may be admitted to the United States under a “U” nonimmigrant classification or “U visa.”

The new rule spells out the eligibility requirements which must be met in order for an individual to adjust their status to a permanent resident.  The requirements for T Visa Adjustment of Status (AOS) include:

Ø  Admission as a T Nonimmigrant – applicants must have been lawfully admitted to the United States as a T nonimmigrant and must continue to hold such status at the time of application

Ø  Physical Presence – applicants must have been physically present in the U.S. for either: (1) A continuous period of at least 3 years since the date of admission as a T-1 nonimmigrant; or (2) a continuous period during the investigation or prosecution of the acts of trafficking, provided that the Attorney General has determined the investigation or prosecution is complete, whichever period is less.

Ø  Admissible at time of Adjustment – applicants must be admissible to the United States under the INA, or have been granted a waiver by USCIS of any applicable ground of inadmissibility, at the time of application for AOS.

o   Grounds of inadmissibility can be found in INA §212(a) and include health-related grounds, criminal activity, public charge, security and foreign policy reasons, and prior immigration violations.

Ø  Good Moral Character – applicants must demonstrate that they have been persons of good moral character since first being lawfully admitted as a T-1 nonimmigrant and until USCIS completes the adjudication of their applications for adjustment of status.

o   Here, the provisions of INA 101(f) apply, in that persons falling into one of these enumerated categories and having committed certain acts will be statutorily unable to demonstrate good moral character.

o   The period for which good moral character must be established under the INA is a continuous period of at least 3 years since the date of admission or during the period of investigation or prosecution of the acts of trafficking, whichever period of time is less.

Ø  Assistance in the Investigation or Prosecution – applicants must establish either (i) that during the requisite period of continuous physical presence they have complied with any reasonable request for assistance in the ongoing Federal, State, or local investigation or prosecution of the acts of trafficking, by submitting a document certifying that he or she has complied with any reasonable requests for assistance or (ii) that they would suffer extreme hardship involving unusual and severe harm upon removal from the United States.

The eligibility requirements for U Visa Adjustment of Status include:

Ø  Admitted as a U Nonimmigrant – applicants must have been lawfully admitted to the United States in U nonimmigrant status and must continue to hold such status at the time of the application.

Ø  Physical Presence for Requisite Period – applicants must have maintained continuous physical presence in the United States for at least 3 years since the date of admission as a U nonimmigrant;

Ø  Assisting in the Investigation or Prosecution – applicants must demonstrate that they’ve complied with any reasonable request for assistance in the ongoing Federal, State, or local investigation or prosecution of the acts giving rise to the U Visa Application.  The INA explicitly prohibits USCIS from adjusting the status of an otherwise eligible U nonimmigrant if the Attorney General determines that the U nonimmigrant unreasonably refused to provide assistance to a Federal, State, or local criminal investigation or prosecution.

o   the determination of whether an alien’s refusal to provide assistance was unreasonable will take into account the “totality of the circumstances,” including general law enforcement, prosecutorial, and judicial practices; the nature of the request to the alien for assistance; the nature of the victimization; the applicable guidelines for victim and witness assistance; and the specific circumstances of the applicant, including fear, severe trauma (either mental or physical), and the age and maturity of the applicant;

o   Unlike the provisions for T Visa Adjustment of Status, the new regulations do not allow for the alternative showing by the applicant that he or she would suffer extreme hardship involving unusual and severe harm upon removal from the United States, in lieu of the requirement that the individual assist in the apprehension or prosecution of the perpetrator.

Individuals admitted in either T or U Nonimmigrant Status or people wanting more information regarding the nonimmigrant visas available to certain victims of trafficking in persons or other criminal activity are advised to seek the advice of experienced counsel.  Please contact the Experienced Immigration Attorneys of Smith & Garg in The Woodlands, Conroe, Spring and Houston, Texas for more information.

In response to the latest of several legal challenges, the Supreme Court of the United States turned down an emergency appeal made by New Jersey resident, Leo Donofrio, who maintains that President-elect Barack Obama is ineligible to be president because he was a British subject at birth, (based on the fact that Obama’s mother was a U.S. Citizen, but his father was a Kenyan Citizen and British subject when Barack Obama was born.)  Donofrio also charged that Obama could also be an Indonesian citizen because he lived there as a child and his Hawaiian birth certificate is allegedly a fake.  Now, lest you think Donofrio’s just another disgruntled Republican, he’s also charged that neither Republican John McCain nor Socialist Workers candidate Roger Calero, are eligible to run for president because they too are not “natural born citizens.” 

So what exactly is a “natural born citizen?”  Unfortunately, while the phrase appears in the Constitution in Article 2, Section 1, the Supreme Court has never specifically defined the parameters of its meaning.  The Constitution states:   

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;

Generally, this has been understood to mean that anyone born on American soil to U.S. Citizen Parents (plural) is considered to be a “natural born” citizen; and those whose citizenship is acquired after birth as a result of a naturalization “process or procedure” are not “natural born” and therefore are ineligible to run for president.  But the issue is further complicated by other Constitutional provisions and Congressional statutes which have broadened our definition of what it means to be a “citizen” of the United States.

For example, Article 1, Section 8 of Constitution confers on Congress the power “to establish a uniform Rule of Naturalization…” which has been construed to allow Congress to determine the characteristics of a “natural born citizen”, as well as the conditions of “naturalization.”  Could Congress therefore, make the determination as to whether someone is “natural born” based on its own definition?  Not according to another source.  The U.S. Department of State Foreign Affairs Manual states that, “the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.”  In addition, under the 14^th Amendment, persons born in the United States, except those not “subject to the jurisdiction of the U.S. government” (such as children of foreign diplomats) are citizens.  Congress has stepped in and re-classified some individuals as citizens at birth, by federal statute, such as children born outside the U.S. to one or more U.S.-citizen parents.  But are they considered “natural born?” The natural-ness of McCain’s citizenship has been questioned in the past, based on the fact that he was born in Panama, and was only declared a citizen retroactively by U.S. statute; but in April 2008, the Senate passed a non-binding resolution “recognizing” his status as that of a “natural born citizen.” But whether those garnering their citizenship in this manner are in fact natural born has never been answered by the U.S. Supreme Court.

            Obviously the exact parameters of the definition remain ambiguous, despite Congressional and regulatory attempts to define the term.  But given the Supreme Court’s reluctance to take up the issue, and the country’s desire to see someone else take this country’s High Office in January, the debate will likely remain confined to the blogosphere and among law professors (and geeks like me) who like to contemplate these things.

            But as always, if you have questions about citizenship, naturalization, or other immigration and consular issues, please contact the immigration attorneys at Smith & Garg.

So what does a copyright grant to its owner and how does one go about proving infringement?  According to the U.S. Copyright Act (Title 17 of the U.S. Code), a copyright is a form of protection provided to the creators of “original works” of authorship including literary works, movies, musical works, recordings, paintings, photographs, software, live performances, and television or sound broadcasts. Copyright protection is available to both published and unpublished works. The Copyright Act gives the owner of copyright the exclusive right to: reproduce the work; prepare other works based upon the work (”derivative works”); distribute copies of the work by sale or other transfer of ownership, or by lease; perform the work publicly; and display the copyrighted work publicly.  (Owners of copyrights can also authorize others to do the same.)

To qualify for copyright protection, a work must be “fixed in a tangible medium of expression,” meaning it must exist in some physical form for a fixed period of time, no matter how minute.  In addition, the work must be original – created independently by its author – though it doesn’t need to be completely unlike anything else.  Nor does it need to be particularly brilliant or aesthetically pleasing.  (So the fact that several bars of Coldplay’s song bear certain similarities to Satriani’s may not be enough to qualify as infringement).

In order to bring a claim for copyright infringement, Satriani will have to prove his ownership of a valid copyright on the song, and that Coldplay “copied” protected elements of his work. Ownership can be readily established with a copyright registration certificate.  Obviously courts spend more time actually analyzing the elements of the alleged infringement. And without proof that Coldplay actually copied directly from Satriani’s score, proving infringement will require a more in-depth factual analysis.  Satriani will have to prove that Coldplay had “access” to – meaning it actually heard the Satriani song – and appropriated certain bars of the song into “Viva la Vida” such that it is “substantially similar” enough to support the infringement charge.   

Coldplay is not the first group of its stature and popularity to be sued for copyright infringement – artists as diverse as Madonna, Bon Jovi, Shawn Mullins and M.C. Hammer have all been targets of the claim.  Given the vast arena of popular music and the limits of musical tonality, similarities between songs are bound to crop up.  My bet is that Coldplay will persevere and remain as popular as ever, whatever the legal result.  At any rate, I’m still going to buy their albums. Viva la Vida, guys!

Employers who are in the process of recruiting candidates for available positions should keep the following in mind:

·         The position offered must be one that requires a bachelor’s degree in a field that is closely related to the position;

·         Candidates with a 3-year bachelor’s degree and no other formal education may require an evaluation based on experience. These candidates must have at least 3 years of experience in the specific field and will need to submit experience letters to supplement their 3-year degree;

·         If the candidate is in the US in another status (F-1, L-1, E, etc), they need to be aware that they cannot travel outside the US while their H-1B application is pending;

·         Candidates graduating with a U.S. Master’s degree must graduate before April 1, 2009 in order to qualify under the Master’s quota. If they will not officially graduate by that date, they will need a letter from the registrar of the school stating that they have completed all of the degree requirements for the Master’s degree as of April 1, 2009 in order to qualify.  Candidates who won’t finish their requirements until May or June of 2009 will be counted in the bachelor’s quota.

Background on the H-1B Visa Category

H-1B classification applies to persons working in what is referred to as a “specialty occupation,” or that which requires the theoretical and practical application of a body of highly-specialized knowledge and the completion of a specific course of higher education (typically a bachelor’s degree or its foreign equivalent).  Current laws limit the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000.  An additional 20,000 H-1B Visas are available to individuals possessing a master’s degree from an accredited university in the United States.  The Houston Immigration Lawyers of Smith & Garg have filed numerous successful applications for individuals wishing to obtain H-1B status in the U.S., including applications for extensions and job transfers. We understand the nuances and complexity involved in filing an H-1B application and can guide both employers and employees through this process.

In order to qualify for an H-1B visa, applicants must meet the following requirements:

·         The occupation in which the H-1B applicant will be employed must qualify as a specialty occupation. Examples of specialty occupations include: architecture, engineering, mathematics, information technology, social sciences, physical therapy, education, business specialties, accounting, law, theology, and the arts. The Attorneys at Smith & Garg are well versed in assisting clients in assessing their educational equivalents and in defining their specialty.

·         The H-1B beneficiary must have a bachelor’s degree or a foreign equivalent to a bachelor’s degree.  Applicants with foreign bachelor’s degrees will need to acquire an official translation and equivalency evaluation from a professional translation service.

·         Employers seeking to hire an H-1B worker must file a Labor Condition Application (LCA) with the Department of Labor, whereby they make certain attestations regarding their compliance with U.S. labor laws and H-1B regulations.  For example, employers must agree to pay the H-1B worker the prevailing wage specific to the H-1B employee’s occupation and work location, as determined by the Department of Labor.  The experienced immigration attorneys at Smith & Garg can explain further to prospective employers the required attestations.

While in the country under an H-1B Visa, a person may change employers if he or she desires but must have a separate and approved petition for each employer, and may only work in the position described under their H-1B for the sponsoring employer.  The H-1B certification is valid for the period of employment indicated on the LCA, for up to three years.  A foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with pending labor certification applications or immigrant visa petitions may stay in H-1B status beyond the normal six-year limitation, in one-year increments.

Don’t get caught trying to prepare these applications for April filing at the last minute! Our attorneys can help!  For more information on the H-1B Visa category, employer attestations, worker extensions and/or adjustments of status, contact the immigration attorneys of Smith & Garg, P.C. in Houston-Westchase or The Woodlands, Texas. 

Whether you are wishing to come to the U.S. as a student, investor, tourist, temporary worker or exchange visitor, the Immigration Attorneys of Smith & Garg in Houston, Westchase, and The Woodlands can assist you in filing the necessary application and supporting documents so you can seek out the opportunities you desire.  Contact us for more information or to set up a consultation!