H1B Visa Frequently Asked Questions
I would like to work in the USA, can I apply for the H1B visa by myself, without getting a job offer from a US employer?You must have a sponsorship job offer from a US company or organization. No. How long can a foreign national be in H1B status? Under current law, you can be in H1B status for a maximum period of six (6) years at a time. After that time you must remain outside the USA for one year before another H1B petition can be approved. Certain people working on Defense Department projects may remain in H1B status for up to ten (10) years. In addition, certain aliens may obtain an extension of H1B 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. Who can an H1B holder (foreign national) work for? H1B aliens can only work for the petitioning US employer (sponsor company) and only in the H1B activities (job duties) described in the visa petition. The sponsoring US employer may place the H1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H1B aliens may work for more than one US employer, but must have a Form I-129 petition approved by each employer. What if the foreign nationals circumstances change? As long as the foreign national continues to provide HB services for a US employer, most changes will not mean that an foreign national is out of status. A foreign national may change H1B employers without affecting status, but the new H1B employer must file a new Form I-129 petition for the foreign national before he or she begins working for the new employer. The merger or sale of an H1B employer's business will not affect the foreign nationals status in many instances. However, if the change means that the foreign national is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation. Must an H1B employee be working at all times? As long as the employer/employee relationship exists, an H1B employee is still in status. An H1B employee may work in full or part-time employment and remain in status. An H1B employee may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status. Can an H1B visa holder travel outside the USA ? Yes. An H1B visa allows the holder to reenter the USA during the validity period of the visa and approved petition. Can an H1B visa holder intend to immigrate permanently to the USA ? Yes. An H1B visa holder can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (Green Card) status without affecting their H1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the USA. What is the H1B cap and how does it work? © MurthyDotCom The H1B cap is an annual limitation on the number of new visas available for H1B workers. The cap is currently set (by Congress) at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for programs for nationals of Chile and Singapore. This does not include the 20,000 additional visa numbers available to persons who have earned masters' or higher degrees from U.S. institutions of higher education. When should H1B cases for cap-subject cases be filed and how does the timing work? MurthyDotCom The cap numbers become available at the beginning of each fiscal year. The government's fiscal year currently starts on October 1st. However, cases can be filed six months in advance of the requested start date. Therefore, cases can be filed on the preceding April 1st. © MurthyDotCom Because there are so few cap numbers relative to increasing demand, one would be well advised contact an experienced attorney to start the process as early as December or January for the following fiscal year, so that the case can be filed to reach the USCIS on April 1st. I understand that certain employment may be cap exempt. What kinds of employment arrangements qualify? © MurthyDotCom Some employment is exempt from the need for a cap number and is referred to as cap exempt. Included is employment "by" or "at" universities and their nonprofit affiliates, as well as nonprofit and governmental research organizations. © MurthyDotCom One should discuss the possibility of being cap exempt with a qualified and experienced immigration attorney, as such a determination may be fact-specific. How do I know if I qualify for H1B employment? © MurthyDotCom Generally, one may qualify for H1B employment if the offered position requires a bachelor's degree or its equivalent. The education must be in a field of specialized knowledge. One must have the required education or its equivalent at the time the case is filed. Can I begin working for my new employer once I have filed the H1B petition? © MurthyDotCom It depends. If one is currently in H1B status with another company, then s/he may be legally allowed to start working for the new employer upon filing the H1B petition. Otherwise, one generally must await an approval of the H1B petition and a change of status. It is important to verify one's eligibility to commence employment with the new employer to avoid unauthorized unemployment, which may lead to problems later, when attempting to adjust status to lawful permanent resident (LPR). © MurthyDotCom If the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), one may continue to work for the employer until the expiration date on the I-94 card / H1B approval notice. If the H1B petition is approved without an I-94 card, one may have to immediately stop working, depart the United States, apply for an H1B visa at a U.S. consulate in the home country, and finally be readmitted in H1B status before being authorized to continue working for the employer. © MurthyDotCom Prior to the law signed on October 17, 2000, referred to as the American Competitiveness in the Twenty-First Century Act (AC21), Legacy INS consistently took the position that a person could not start working for the new employer until approval of the H1B petition. Status issues can be complicated and, if there is any question as to whether or not one is authorized to engage in H1B employment, s/he should consult with an experienced immigration attorney. Why does an H1B transfer take so long? Isn't there an easier process? © MurthyDotCom The process for filing an H1B "transfer" petition is the same as the process for filing a new H1B petition, since each H1B petition is employer specific. Therefore, it generally takes the same amount of time to process the H1B petition. © MurthyDotCom The main difference between an H1B "transfer" and a new H1B petition is that one who already holds an H1B status is generally not subject to the H1B cap and does not need to wait until October 1st to start working, if the H1B quota has been used up for that fiscal year. My friend filed his H1B petition at the same time as I, but his petition was approved already. Why wasn't mine approved yet? © MurthyDotCom Each USCIS service center and each USCIS officer has a different caseload and each one takes a different amount of time to process cases. Unfortunately, there is nothing a law firm can do to ensure that a case will be processed in the same amount of time as other cases. I am here in H1B status and my H1B visa has expired. What should I do? © MurthyDotCom If it is, in fact, just the visa in one's passport that has expired and not the H1B status, itself, then there is no need for concern. © MurthyDotCom The visa is a travel document only. If the visa in one's passport expires, one would need to apply for another visa at a U.S. consulate abroad the next time s/he travels outside the United States. © MurthyDotCom Generally, one's legal status in the U.S. depends upon the expiration date on the I-94 card, written by the immigration officer at the port of entry. As long as the latest I-94 card (either a small white card typically stapled in the passport or an updated one located at the bottom of the latest approval notice) is currently valid, and one is continuing to work for the sponsoring employer under the terms of the petition, then s/he is legally permitted to be in the U.S., whether or not the visa in the passport has expired. If it is, in fact, the status (as indicated on the I-94) that has expired, one should contact an attorney immediately to discuss available options. If I have an H1B approval, can I work for my employer in any state in the U.S.? © MurthyDotCom The USCIS has taken the position that a person is only authorized to work in those cities / metropolitan areas listed on the Labor Condition Application (LCA) certified with the U.S. Department of Labor (DOL), and filed with the H1B petition. Generally, there must be a certified LCA for each location at which one will work, attesting that the employer will comply with the prevailing wage requirement for that local area. © MurthyDotCom There is a discrepancy between the DOL regulations and USCIS regulations with regard to an H1B employee's change in work sites. One requires an amendment to the H1B that includes certification of the new location and the other provides that certifying the LCA prior to the move is sufficient (i.e. an amended petition is not necessary). As this discrepancy creates a gray area of law, it is best to consult with an experienced immigration attorney prior to working at a location not previously certified. I was in H1B status and changed to F-1 status. I am now ready to work in H1B status again. Do I get six more years in H1B status? © MurthyDotCom No. The six-year clock in H1B status is not reset unless one leaves the United States for at least one year. As a result, the time previously spent in H1B status will be counted against the six-year H1B limit. © MurthyDotCom Individuals who previously held H1B status in the last six years, and subsequently left the U.S. for at least a year, generally have the option of either using the time remaining in H1B status without being subject to the cap or applying for another six years of H1B employment subject to the cap. I'm in F-1 status and have a practical training work permit. If my work permit expires, do I have to stop working until the H1B approval comes through? © MurthyDotCom Yes. One must stop working upon the expiration of the EAD or the OPT. If an H1B petition requesting a change of status is filed prior to the expiration of the F-1 status (date of completing school or of finishing practical training, plus a 60-day grace period), one may legally remain in the U.S. However, one cannot work for the H1B sponsoring employer during the period between the expiration of the practical training authorization and the start date on the H1B approval notice. © MurthyDotCom F-1 students should be aware of what is often referred to as the "cap gap." The cap gap is the time between the expiration of OPT (and the 60-day grace period) filing of a petition (i.e. April 1st) and the actual start date (i.e. October 1st, at the earliest). If one is unable to maintain status during this time, by enrolling in another program or changing to another nonimmigrant category, such as H4) then the petition should be prepared for consular processing and one should depart the U.S. prior to the expiration of one's status. Upon approval, the U.S. consulate abroad will be notified where one may apply for an H1B visa for entry into the U.S. in H1B status. If both one's petition and change-of-status request are approved (from F-1 to H1B), then the approval notice should have an I-94 card attached at the bottom. My spouse is in H-4 status and was offered a job. Can s/he begin working? © MurthyDotCom No. H4 is a non-working status. In order to be legally authorized to work in the U.S., one who is in H4 status must have an employer file an H1B petition or petition for another working status (other working category). The petition must request a change of status specifically. Of course, one's spouse must meet all of the H1B requirements. Once the petition is approved, with the change of status, the spouse's work authorization begins on the date on the approved petition. © MurthyDotCom Please note, under AC21, there may be circumstances in which a person in H-4 status, who was previously on H1B, may be allowed to work upon filing the H1B petition. I held H1B status and my spouse was in H-4 status, but no one told us we had to apply separately to extend her H-4 status. She has been out of status for over eight months. What can I do? © MurthyDotCom In this situation, one should contact an experienced U.S. immigration attorney immediately. This is a very difficult situation and the assistance of a knowledgeable professional will be required to develop a plan of action and help one to understand the risks and issues involved with each option. © MurthyDotCom There is a strong likelihood that the 3-year or 10-year bar could apply against the spouse in this case for failure to maintain lawful status beyond 180 days. According to the USCIS, ignorance of the law is never a valid excuse. © MurthyDotCom At the time of filing the H1B extension, many people assume that all dependents are automatically included. This is not the case. My husband and I each hold H1B status. I would like to change my status to H-4. Can I do this? otCom Yes. To do this one needs to file an application with the USCIS to change status from H1B to H4. In doing so, one must establish that both the primary H1B and the spouse are maintaining current legal status in order for the USCIS to approve the change of status. It is safest for one to continue working until the application is approved, although upon filing the H4 application for change of status, one generally is allowed to stop working. Another path to H4 status is to obtain an H4 visa at a U.S. consulate abroad and use it to reenter the U.S. If one is unsure as to which method to use, we suggest a case-specific consultation with an experienced, reputable U.S. immigration attorney. I currently hold H1B status. Can I start my own company? © MurthyDotCom Generally, the answer is yes. However, for immigration purposes the employer / employee relationship must be present and this often may be difficult to establish in a closely-held, corporate entity. Other legal issues, as well as many practical business matters, may create obstacles, as well. I currently hold H1B status and I am changing employers. I want to travel to my home country. Is it legal for me to leave? © MurthyDotCom Generally yes, this may be possible. The timing of such a trip can complicate the situation. Although there have been several changes in the Legacy INS's interpretations affecting those who travel abroad while a petition is pending, the safest option is to avoid international travel unless the timing is first discussed with an experienced U.S. immigration attorney. I hold H1B status and would like to file another H1B petition with another employer, but I want to wait before I start work. Can I do this? © MurthyDotCom Yes. There is no obligation to begin work immediately. One must maintain lawful status by working for one of the companies that has an approval for that individual. There is nothing to prevent one from waiting to begin work, especially if there is a project to finish. As long as the prior employer has not revoked the H1B petition with the USCIS, or the petition has not expired, it still is legal to be working for the prior company. I filed my H1B petition through another attorney over two months ago. Is there anything you can do to expedite the case? © MurthyDotCom Yes. The case may be upgraded to Premium Processing by filing the appropriate forms and including the required fee. The USCIS will process the petition within 15 days if one is willing to pay a premium processing fee of $1,000. If one is not willing to pay the premium processing fee, then expedites are difficult to obtain in most cases. The USCIS generally will expedite cases for the following reasons (and they do not view requests for expedites favorably): © MurthyDotCom (i) emergent reasons © MurthyDotCom (ii) severe financial loss to the company, which must be evidenced in specific terms, i.e., not a broad and general statement of possible loss of revenue or income © MurthyDotCom (iii) USCIS's own error © MurthyDotCom (iv) humanitarian reasons I currently hold H1B status. Am I subject to the H1B cap? © MurthyDotCom This depends. Typically, if one is in H1B status and has already been counted against the H1B cap, s/he is not subject to the H1B cap. Individuals who have only held H1B status with cap-exempt employers, like universities or nonprofits associated with institutions of higher education, are not deemed to have already been counted against the H1B quota. An individual who has not been counted against the cap should consult with an experienced immigration attorney regarding possible strategies. If I have a valid H1B visa in my passport and I leave the United States, can I come back and work for a different employer without having to go through the USCIS? © MurthyDotCom No. One must have the new company's H1B petition approved through the USCIS, since each H1B petition is employer specific. This applies to any company for which one might work, whether or not s/he already holds H1B status. However, if the visa has not expired in the passport, but now one has a new H1B petition approved to work for another employer, it is possible, in most cases, to use the old H1B visa and show the H1B approval notice with the new employer to obtain a new I-94 card at the port of entry. The new I-94 card should have an expiration date that matches the expiration date on the new H1B approval notice. If the USCIS officer makes a mistake and only issues an I-94 card valid until the expiration date of the visa, one should request at that time that the officer indicate the correct date. If the officer refuses to correct his/her mistake, then one should ask respectfully to speak with a supervisor. I am the president of a small IT consulting firm. I have heard that the USCIS is closely scrutinizing petitions filed by companies such as mine. What steps should we take to maximize our chances of receiving approved H1B petitions for IT consultants? © MurthyDotCom IT consulting firms should provide strong evidence to show that they have specific, H1B level work for their consultants at the time of filing. If a consultant will be working on a project at the firm, the USCIS expects to be provided with detailed information on the project, including its technical specifications, the end-product, and a business plan / market analysis (target market, expected revenue stream, anticipated length of the project, etc). If the project will not earn a revenue stream in a relatively short period of time, the firm should be prepared to provide evidence that the H1B employee's salary can be paid through other means. © MurthyDotCom If a consultant will be placed at various work sites of end clients, these locations should be stated in the H1B petition and in the certified labor condition applications (LCAs) that accompany the petition. One must have evidence of specific projects contemplated for the beneficiary at the time of filing (contracts, purchase orders, etc) with the end client. One cannot generally change locations and file new LCAs in response to a Request for Evidence (RFE). My employer would like me to pay all the USCIS fees for filing an H1B petition on my behalf. Is this allowed? © MurthyDotCom No. The employer must pay the training fee ($750 / $1500) for the petition, if applicable, and one should not enter into a reimbursement agreement with the employer. Either the employee or the employer may pay the other filing fees: $320 base filing fee, the fraud prevention fee $500, if applicable, and the $1000 optional premium processing fee. I am graduating from a master's program in the U.S. this coming May. Can I apply for the masters' cap when filing my H1B petition? © MurthyDotCom This depends. If one would have completed all the requirements for the degree at the time of filing (April 1st), then s/he may apply for the masters' cap. It is not necessary to have the physical diploma in one's possession; in such cases. A letter should be submitted from the university stating that the degree has effectively been awarded and the diploma will be sent or presented at a later date. One should not apply for the masters' cap if the degree requirements will not be completely fulfilled by April 1st.