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Information common to all H Category applicants
(1) The employer in the U.s. must file a petition with the Service (USCIS) which has jurisdiction in the area where the proposed employee will perform services, or receive training, even in emergent situation on Form I-129 for review of the services or training and for determination of the candidate's eligibility for classification as a temporary employee or trainee, before the candidate may apply for a visa or seek admission to the United States
(2) An employer which requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with the Service office which has jurisdiction over I-129F petitions in the area where the employer is located.
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(3) If the employee will perform nonagricultural services for, or receive training from, more than one employer, each employer must file a separate petition with the Service Center that has jurisdiction over the area where the employee will perform services or receive training, unless an established agent files the petition.
(4) If the employee is in the United States and seeks to change employers, the prospective new employer must file a petition on Form I-129 requesting classification and extension of the employee's stay in the United States.
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If the new petition is approved, the extension of stay will be granted for the validity of the approved petition. The validity of the petition and the employee's extension of stay shall conform to the limits on the employee's temporary stay.
The employee is not authorized to begin the employment with the new petitioner until the petition is approved.
(5) An H-1C nonimmigrant nurse may not be allowed to change employers.
(6) In case there is any change in the terms and conditions in the employment or any change in the candidates eligibility which was mentioned in the petition filed initially, the employer in US must file an amended or new petition along with fee, to the USCIS service center
. A latest or new Department of Labor Determination must be enclosed along with petition for H -1 C, H-1B, H-2A, or H-2B categories. For an H-1B petition, the request must enclose a New Labor Condition Application.
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Filing Petition through Agents
The Petition can be filed through an agent in case of
The worker who is traditionally self-employed
The worker who wishes to use an agent to arrange short-term employment on his/her behalf with numerous employers.
The foreign employer wishes to authorize an agent to act on its behalf.
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An Agent can be:
The actual employer of the candidate representing the employer as well as the candidate.
A person who is authorized by the employer to act on his behalf.
A petition filed by a United States agent is subject to the following conditions
(a) The agent must assure the terms and conditions and wages of the job in terms of an agreement contract with the employee(s) and in case more than one employer is appointing the employee(s), an itinerary must also be enclosed detailing the other employment for the same duration.
(b) An employer in US may act as an agent of the other employer who is appointing the same Indian employee(s) in case the employer includes an itinerary detailing the dates of each employment, name & address of the other employers. For certain cases a contract between the other employer and the Indian candidate may also be required.
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The employer who is filing the petition and acting as an agent is responsible to explain the terms & conditions, wages of the other job and to provide the necessary documents. The other employer appointing the Indian employee must comply with all of the employer sanction provisions:
Licensure for H classification
If the employment requires a state or local license, the proposed employee in India must obtain that license prior to approval of the petition so as to qualify to enter the US and immediately undertake the job.
Incase the proposed employee obtains a temporary license (if available); the director of the consulate will review the nature of duty, the level, the degree of supervision and limitation on the proposed employee. If this review confirms that the proposed employee can be allowed to perform the job under supervision, then only the visa will be granted to the proposed employee.
For certain employments which normally require a licensure, a state may allow the candidate to practice the job under supervision of a licensed senior person. In such case examining the nature of the duty and the level, subject to confirmation of these facts the visa may be granted to the candidate by the consulate.
If the employment requires a licensure and the candidate has a temporary licensure, the visa may be issued for one year or for the period that temporary license is valid (which ever is longer). In such case, the candidate cannot seek extension of stay until he/ she obtains a permanent license.
Approval and validity of petition
Once the petition is approved the consulate director shall notify the employer about the approval of the petition on Form I-797 (Notice of Action). The approval shall be as follows:
The approval notice will include the Indian employees name and visa category and the validity of the visa. A petition for more than one Indian employee and/ or for multiple employers may be approved completely or partially. The approval notice will cover only those employees who are approved for visa issuance.
The petition cannot be filed or approved earlier than six months before the date of commencement of the job.
Denial of Petition
A petition for multiple candidates may be denied completely or partially.
Notice of intent to deny
The consulate authorities will notify the employer of their intention to deny the petition and the reason, based on critical information which the employer is unaware. The employer may inspect and refuse such evidence. For this process the employer will be given a period of 30 days from the receipt date of the notice. All relevant refusal material will be considered to make a final decision. The employer cannot appeal the decision of denial on extension of stay.
Cancellation of Approved Petition
General
If the employer terminates the service of the employee, the same must be notified my means of a letter explaining the change(s) to the concerned authority who approved the petition.
The USCIS director is authorized to cancel a petition at any stage.
If the petitioner goes out of business or files a written withdrawal of the petition, the petition will get automatically withdrawn
Reasons for Cancellation of a Petition
The authorities shall notify the petitioner on their intent to cancel the petition in relevant part if the authority finds that:
The Indian candidate is no longer employed by the petitioner in the capacity specified in the petition, or
The informations contained in the petition was incorrect or false; or
The employer violated terms & conditions of the approved petition; or
The petitioner violated requirements of any section; or
The approval of the petition violated any conditions or involved gross error.
Admission
General
(1) An employee shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. An employee may not work except during the validity period of the petition.
(2) When an Indian candidate in an H classification has spent the maximum allowable period of stay in the United States, a new petition may not be approved unless that Indian candidate has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. The employer shall provide information about the employee's employment, place of residence, and the dates and purposes of any trips to the United States during the period that the employee was required to spend time abroad.
Petition Validity Extension
The employer shall file a request for a petition extension on Form I-129 to extend the validity of the original petition. Supporting evidence is not required unless requested by the authority. A request for a petition extension may only be filed before expiry of the original petition.
Extension of Stay
The employer shall apply for extension of the stay of the Indian candidate by filing a petition extension on Form I-129 accompanied by the documents described for the particular visa category.
The employer must also request a petition extension simultaneously. The dates of extension should be the same for the petition and the Indian candidate's extension of stay. The candidate must be physically present in the US when filing of the extension of stay. Even though the requests to extend the petition and the candidate stay are combined on the petition, the authority shall make a separate determination on each.
If the candidate needs to leave the US for business or personal reasons while the extension requests is in process, the employer may request the authority to inform the notification of approval of the petition extension to the consular office in India where the candidate will apply for a visa. When the total allowed period of stay for this category has been reached, no further extensions may be granted.
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