Spring 2006-07 Renewal of H-1B visa denied

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Number 63
Spring 2006

Renewal of H-1B visa denied

H-1B visas are available to immigrants who engage in "specialty occupations." Food service managers do not qualify, even if the same visa had been previously granted, according to the U.S. District Court, in the case of Royal Siam Corporation v. Ridge, 2006 U.S. Dist. LEXIS 13040.

Surasak Srisang, a citizen of Thailand, had been granted an H-1B specialty occupation employment visa in 1999, to work as restaurant manager. Nevertheless, his petition for renewal was denied in 2002 on the grounds that the position did not qualify under the standards applicable to "specialty occupations." Srisang countered that the decision constituted an abuse of discretion, as there was no explanation of why the same visa had been originally granted for the same position. The United States Citizenship and Immigration Services claimed that granting the 1999 visa had been an error.

Besides, the Attorney General had made a determination that Srisang had married for the purpose of evading immigration laws. 8 U.S.C. § 11549c)(2) provides that "no petition shall be approved if . . . the Attorney General has determined that the alien has attempted or conspired to enter into marriage for the purpose of evading the immigration laws."

Criteria

A "specialty occupation" is defined in the law as one that requires "theoretical and practical application of a body of highly specialized knowledge . . . and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation." 8 U.S.C. § 1184(i)(1). The implementing regulation presents the following criteria:

the applicant holds a baccalaureate or higher degree,

the degree requirement is common to the industry in parallel positions, or the position is so complex or unique that it can be performed only by someone with a degree;

the employer normally requires the degree or its equivalent for the position;

the position's duties are so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree.

The District Court found that the decision not to renew Srisang's visa was supported by substantial evidence in the record, and that the same relied upon a proper understanding of the law. As such, the decision was not arbitrary. The court also ruled that the 1999 granting of the original visa was not binding precedent.

What is an H-1B?

The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

What is a specialty occupation?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Is there an annual limit on the number of H-1B aliens?

Yes. The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status in FY2004. (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003.)

How does one apply?

H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129 petition plus accompanying fee of $130. (Prior to FY2004, employers were required to submit an additional $1,000 fee to sponsor the H-1B worker, unless specifically exempt.) Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant status.

For additional information on employer's filing needs, please visit the Department of Labor's Foreign Labor Certification page.

How long can an alien be in H-1B status?

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:

1. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or

2. 365 days or more have passed since the filing of an EB immigrant petition.

~ Source: http://uscis.gov/graphics/howdoi/h1b.htm


© 2006 Goldman Antonetti