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H-1B FAQS

What Is The H-1B Visa Category?

We are a full-service Immigration Law firm. The H-1B visa category is, however, representative of the class of immigration law services offered by our law firm, and the visa category for which we have prepared a FAQ. Information on additional areas of Immigration Law can be found in the Services and Fees section of our website. Please do not hesitate to contact our law firm for any immigration matter.

For viewers conflicted about using more than the minimum amount of time in pursuing knowledge of the H-1B nonimmigrant visa category, you may qualify if you have a job offer and possess the equivalent of a U.S. bachelor's degree. An H-1B petition is approved initially for a maximum of three years, and status can be extended multiple times (even through multiple employers) for a maximum total of six years. The status may be extended beyond six years in certain circumstances, i.e., if an application for labor certification (PERM) has been filed with the Department of Labor at least one year prior to completing six years in H-1B status, or if there is an approved I-140 immigrant petition in the EB-1 to EB-3 categories prior to completion of six years in H-1B status. The six year clock in H-1B status can be suspended by travel abroad while in H-1B status, and thus time spent abroad will not be counted as part of the six year total. Citizens of Chile and Singapore have the option of filing an H-1B1 petition (as opposed to an H-1B petition).

Document Checklist To File H-1B Petition Through Our Law Firm?

In order to properly prepare and file the Petition for a Nonimmigrant Worker (H-1B /H-1B1) with the United States Citizenship & Immigration Services "USCIS" we require the following information and documents. The information required about the employer and the beneficiary is listed separately.

Information about the employer

  1. Name of the Company
  2. Address
  3. Phone number
  4. FEIN (federal employer identification number) along with document verifying FEIN
  5. Year of establishment
  6. Current number of employees
  7. Gross annual revenue/sales, or budget (for non-profits), for the most recent year
  8. Name and title and email address of the person who will sign the petition on behalf of the company
  9. Job Title offered along with description of job duties or responsibilities and actual work site address if different than main address of company
  10. Salary offered
  11. Brochure or website or brief description about the company

 

The above employer information can be easily conveyed in this Data Sheet.

If the employer is a non-profit organization related to or affiliated to an institution of higher education, or a non-profit research organization, please enclose document verifying the same.

The checklist for candidates who are presently in the U.S. in nonimmigrant H-1B or F-1 or L-1 or other nonimmigrant visa status is as follows: (No Originals are required – Only Clear & Legible Copies are required)

  1. Passport (biographic information pages and U.S. visa page)
  2. Most recent I-94 (issued on arrival at the airport)
  3. H-1B / L-1 or other nonimmigrant visa status Approval Notice(s)
  4. Pay stubs for the last two months and latest Form W-2 if currently in visa status allowing employment
  5. Degree Certificates, Transcripts, Diplomas & Credential Evaluations, if applicable
  6. Address in the U.S. as well as permanent address abroad
  7. Telephone Number
  8. Email Address
  9. Social Security Number, if available
  10. Resume
  11. I-20's if in F-1 status along with OPT or CPT card if applicable
  12. If in dependent status such as H-4 or L-2, document showing relationship to principal spouse such as marriage certificate along with evidence that the principal spouse is maintaining his or her respective status

Bottom Line: Costs Involved In Filing For An H-1B Visa?

The American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA") raised U.S. Citizenship & Immigration Service (USCIS) filing fees several fold.

The regular USCIS filing fee is now $460, plus $500 for “antifraud” measures. The $500 applies only for the initial H-1B petition, and not for extensions of status by the same employer. In addition, most employers are also subject to an additional $750 (if fewer than 26 employees) or $1500 (if 26 or more employees). Employers exempt from the $750 or $1500 are nonprofit research organizations or governmental research organizations, or institutions of higher education or non-profit organizations affiliated with or related to institutions of higher education, or primary or secondary education institutions. The $750 or $1500 does not apply for the second H-1B extension through the same employer. Amended petitions do not require the additional fee unless the petition has the effect of extending nonimmigrant status. All filing fees are payable to the Department of Homeland Security and an unavoidable expense.

Is The Employer Required To Pay For Filing The H-1B Petition?

Yes.

Employers cannot require the H-1B nonimmigrant to reimburse or otherwise creatively compensate the employer for any part of the H-1B petition filing fee except for the $460 base filing fee, which can be paid by any party, including the beneficiary. Since the filing fee is solely the employer's burden, the USCIS will reject remittances (except the $460 base filing fee) from an H-1B beneficiary or the beneficiary's agent that accompanies the H-1B petition. A remittance from an attorney is normally accepted by the USCIS.

Do Visa Caps Apply To Me?

The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) was enacted to increase the cap on H-1B visas to 115,000 for fiscal years (October 1 to September 30) 1999 and 2000, and 107,500 for FY 2001. The quota returned to 65,000 in FY 2002 and thereafter, the same number that existed prior to passage of the ACWIA. As of 2016, the cap is still 65,000 visas.

Caps are not applicable for current H-1B nonimmigrants filing for extensions of stay, amendment of terms of current employment, change of employers (i.e., sequential employment in H-1B visa status), and concurrent employment. The same exemption from the visa cap applies to individuals being sponsored by a non-profit research organization or governmental research organization, or an institution of higher education or non-profit organizations affiliated with or related to institutions of higher education.

For persons who have completed a U.S. master’s degree, there is an additional cap of 20,000 visas available on top of the regular 65,000 visa cap. The master’s degree does not have to relate to the job offered in the H-1B petition. It is acceptable as well if the job does not require a master's degree as the minimum qualification for the job as long as it is still a specialty occupation requiring the possession of at least a relevant bachelor's degree or U.S. equivalent to adequately perform the job.

An individual whose H-1B petition was filed initially by a cap-exempt employer will be subject to the visa cap if changing employers and the new employer is not a cap-exempt organization, except in cases of concurrent employment. Citizens of Chile and Singapore are given preference within the visa cap.

Can I Sponsor Myself For The H-1B Visa Category?

You must be sponsored by a "U.S. employer." What if you are the employer in the form of a company that you establish? USCIS regulations define employer as "a person or entity...who engages the services or labor of an employee to be performed in the United States for wages or other remuneration."

Since the H-1B petition must be approved prior to commencing employment, and it is difficult, although not impossible, for a "paper" company with zero employees and no income to be considered an employer capable of sponsoring an H-1B beneficiary, the dilemma to overcome is establishing a company with enough viability to be approved by the USCIS without technically being employed in the interim. One way to remain within the law is to establish a company with the help of other investors.

The most conservative position is to be only a "passive investor" as opposed to exercising substantial decision-making power in the company. An individual cannot be accused of being employed without authorization if he or she is only a passive investor in the company that will sponsor him or her for the H-1B visa. To summarize, an individual cannot be "employed" in H-1B status until his or her employer successfully petitions for H-1B status.

What is the difference between H-1B status and H-1B visa?

A change of status is obtained if the beneficiary is in the U.S., while a visa has to be obtained from outside the U.S. For example, an individual in F-1 (student) status can change status to H-1B upon approval of the H-1B petition filed by his or her employer. The individual may commence employment immediately (as per the terms of the approval notice) without having to leave the U.S. and being issued an H-1B visa at a U.S. Consulate abroad. If the H-1B beneficiary travels abroad at some point, it is necessary to obtain an H-1B stamp (visa) in the passport from a U.S. Consulate abroad in order the re-enter the U.S. in H-1B status.

Conversely, an individual outside the U.S. can have an H-1B petition filed with the USCIS on his or her behalf by the employer and take the approval notice to the nearest U.S. Consulate having jurisdiction over his or her place of residence to be issued an H-1B visa stamp in order to enter the U.S. Upon entry, this individual will be in H-1B status.

What does "employer-specific" mean?

An H-1B approval notice is valid only for one specific employer. If an individual wishes to work elsewhere, the new employer must file an H-1B petition with the USCIS as well. Under the portability rules of H-1B visa status, an individual currently in H-1B visa status can commence employment with the new H-1B employer upon the filing of an H-1B petition by the new employer requesting extension of H-1B status. There is no requirement to wait until approval of the petition prior to commencing employment with the new employer. If the USCIS has still not approved the H-1B petition filed by the new employer in 240 days, the beneficiary must suspend his employment with the new employer (although he or she can still remain legally in the U.S. based on pending H-1B petition) and then resume his or her employment with the new employer upon approval of H-1B petition granting extension of H-1B status.

Can I work for more than one employer?

Yes, but all employers must have filed an H-1B petition for you. Generally a person has one full-time H-1B employer and one part-time H-1B employer if he or she is working for two employers concurrently, but nothing prevents an individual from working full-time for two or more employers. See our article on Concurrent Employment.

What is the duration of H-1B visa status?

H-1B petitions are initially approved for three years and can be extended for another three years, for a maximum of 6 years. The clock starts ticking from the date of entry in the U.S. through H-1B visa, and not from the date of visa issuance. Moreover, it is based on time actually spent in the U.S. in H-1B status; it is not based on the validity of the visa.

Therefore, if you spent time outside the U.S. during your six year stay, it is possible to "recapture" that time by extending the six year maximum. Please be prepared to provide evidence of periods of time spent outside the U.S. in H-1B status if you want to apply for an extension to get the benefit of time spent outside the U.S. Evidence of time spent abroad can include, but is not limited to, the following: copy of passport with entry/exit stamps; itinerary provided by airlines or travel agents; utility bills; financial transactions requiring physical presence; employment records or tax filings abroad; permits, licenses, or identification (such as driver's license) which are issued based on physical presence; letters or affidavits confirming your presence.

After the 6-year limit on an H-1B visa status is reached, an individual can leave the U.S. for one continuous year and re-enter on H-1B visa status. The one year abroad does not have to be in your home country or country of last residence, and very short visits to the U.S. do not break the continuity requirement. Alternatively, the status may be extended beyond six years in certain circumstances, i.e., if an application for labor certification (PERM) has been filed with the Department of Labor at least one year prior to completing six years in H-1B status, or if there is an approved I-140 immigrant petition in the EB-1 to EB-3 categories prior to completion of six years in H-1B status.

Can I work in H-1B status prior to approval?

Yes, if you are “porting” H-1B status. For example, an individual currently in H-1B status by Employer A can commence employment with Employer B upon Employer B’s filing of an H-1B petition with the USCIS requesting extension of H-1B status. You can continue working for up to 240 days even if your I-94 expires prior to H-1B petition approval through Employer B.

Incidentally, when H-1B status is about to expire, an H-1B petition requesting extension of status can be filed up to 180 days prior to the expiration date noted on the I-94 attached to the H-1B approval notice (Form I-797), or the date noted on the I-94 that is issued when entering the U.S. The “last action rule” applies in determining proper validity dates when there is conflict. For example, if an individual has an H-1B approval notice valid until April 30, 2014, but his or her I-94 issued at the port-of-entry shows expiration of H-1B status on April 30, 2013, the individual is able to remain legally in the U.S. only until April 30, 2013 if the entry to the U.S. was the last action by the USCIS.

What is the difference between a LCA and LC?

The LCA (labor condition application) is electronically filed with the Department of Labor (DOL). It must be certified by the DOL before the H-1B petition is filed with the USCIS. It is an abbreviated procedure that results in certification within 10 business days, and is normally taken care of by the attorney handling the preparation and filing of the H-1B petition. Labor Certification (Application for Alien Employment Certification, also known as PERM) is associated with employment-based permanent residency and is not related to the nonimmigrant H-1B visa category, although frequently a Labor Certification is filed with the DOL by the employer while a person is in H-1B status if the employer is offering permanent, full-time employment to the employee.

What steps must be completed prior to filing the H-1B petition?

The process begins with determining whether an individual has an employer willing to sign the H-1B petition, and whether the individual will be performing work in a specialty occupation which requires a relevant U.S. bachelor’s degree or foreign equivalent, and whether the individual possesses the above qualifications. An evaluation of a foreign degree must be completed by a qualified credentials evaluator (our law firm can serve as a liaison between you and the evaluator) equating the foreign degree, if applicable, to the U.S. equivalent. Employment experience may be taken into account, and most evaluators use the formula of 3 years of professional-level employment experience equating to one year of college.

Then the “prevailing wage” must be determined. An H-1B employer is required to pay the higher of the prevailing wage for the position in the local geographical region (what similarly situated employers pay U.S. workers for the same position), or the actual wage paid to employees at the (sponsoring) company who hold similar positions. A common source of determining the prevailing wage is the Foreign Labor Certification Data Center Online Wage Library where the H-1B beneficiary will work. The prevailing wage data as well as other information is entered onto an application called the labor condition application (LCA).

The LCA is filed with the Department of Labor, which certifies it and returns it to the attorney, or to the employer if there is no attorney-on-record. The next step is to submit Form I-129 with H supplement to the USCIS, along with the certified LCA as well as information on the company and the nature and duties of the position and evidence of the beneficiary's background and education as well as evidence of maintenance of current nonimmigrant status if in the U.S. at the time of filing the H-1B petition. This is more difficult than it appears. Entire careers, if not empires, have been built on study of H-1B laws, regulations, and procedures. Please contact our law firm to discuss how we will prepare the H-1B petition for the review and signature of the employer based on some simple information required about the employer. Your response to the document checklist portion of the FAQ is helpful.

When should I encourage my employer to file a cap-subject H-1B petition?

It is important to begin the process early, as the LCA filed with the DOL after the prevailing wage determination can take two weeks. The H-1B petition filed with the USCIS may take anywhere from six weeks to several months for approval.

In addition, USCIS caps (quotas) on H-1B visas argue even more strongly on the importance of starting the process early so that there is no interruption in legal status. Individuals subject to the H-1B quota for any fiscal year (October 1 to September 30) are encouraged to file as soon as legally able to do so (April 01 requesting employment start date of October 01).

For fiscal year (FY) 2009, which started on October 01, 2008, and which allowed for filing cap-subject petitions up to six months prior to the start of the fiscal year, the visa cap was reached on April 05, 2008. The USCIS gave equal consideration to cap-subject H-1B petitions received between April 01 and April 05, 2008 for fiscal year 2009, and refused to accept any further cap-subject H-1B petitions.

The USCIS also instituted a random selection system since many more petitions were filed by April 05 than the available visa slots. In FY 2010, the visa cap was reached on December 21, 2009. For FY 2011, the visa cap was reached on January 26, 2011. For FY 2012, the visa cap was reached on November 22, 2011. For FY 2013, the visa cap was reached on June 11, 2012. For FY 2014, the visa cap was reached on April 05, 2013. For FY's 2015 and 2016, the visa cap was reached on April 07, 2014 and April 07, 2015 respectively. The latest visa information is available at http://www.uscis.gov/h-1b_count.

My six years in H-1B status are about to expire. What next?

A prospective immigrant to the U.S. should actively explore various immigration procedures during the first few years of H-1B status if he or she does not want to leave the U.S. for one year in order to re-enter on H-1B status. A application for alien employment certification (Labor Certification, now commonly known as PERM) may take several months for certification after filing, and the PERM application must be pending with the USCIS for at least one year before six years are completed in H-1B visa status (or I-140 petition for immigrant worker approved by the USCIS after PERM certification) in order to extend H-1B status beyond six years. Almost all foreign applicants seeking permanent residency in the U.S. on the basis of an offer of employment require a certified PERM application from the DOL as the first step in the employment-based green card process.

If the PERM application is not filed in time prior to completion of six years, and an applicant’s spouse is in H-1B status as well, the applicant may be able to change status to H-4, although H-4 (dependent of H-1B status holder) status does not authorize employment. Prior to 2007, the six-year limit applied to H visa status in general (whether H-1B or H-4 dependent visa status).

The Secretary of Labor makes two findings before granting labor certification (PERM): a) qualified U.S. workers cannot be found, at the time of filing the application and in the area of intended employment who are able, willing, and available to fill the position offered to the applicant; and b) employment of the foreign applicant will not adversely affect the wages and working conditions of similarly employed U.S. workers. An immigrant petition (Form I-140) must be filed with the USCIS within 180 days of labor certification (PERM).

An individual may consider changing to another nonimmigrant status, but most other nonimmigrant visa categories, such as F-1 (student) or B-1 or B-2 (business visitor or tourist) do not permit employment. Another option would be to change status to the O-1 visa category, but this nonimmigrant visa status requires an offer of employment and is suitable only for “extraordinary ability” individuals. Yet another option is to work abroad for a U.S. employer's offices overseas for one year and re-enter the U.S. on L-1 status under the multinational Manager/Executive category (L-1A) or the specialized knowledge worker category (L-1B). The L-1A category allows for filing of an immigrant petition directly, leading to a green card, without first obtaining a PERM certification from the DOL.

How to bring my spouse on H-4 visa status?

Please see our article on H-4 Family Members. An H-1B holder's spouse can change status to H-4 status if in the U.S. or the spouse may apply for an H-4 visa at a U.S. Consulate abroad. The H-1B spouse's presence is not required at the Consulate. Requirements are the Form I-797 (H-1B) approval notice of the H-1B spouse, copy of Form I-129H and LCA filed with the USCIS by the employer of the H-1B spouse, copy of all supporting documentation filed with Form I-129H, marriage certificate, birth certificate and passport (of spouse), current letter of employment from H-1B spouse's employer, notarized copy of H-1B spouse's passport, bank statement or tax returns showing enough income to support dependent spouse, recent pay stubs and W-2 (summary of annual income) of the H-1B spouse, wedding photographs and wedding invitation card, and visa fee. Do not submit original documents since they are unlikely to be returned, but originals should be available upon request by a Consular official.

In some cases the Consulate will require that the H-1B spouse have an unexpired H-1B visa stamp in his or her passport before issuing an H-4 visa stamp to the spouse. Some of the above documents are not required for change of status to H-4 within the U.S., but the above list is a comprehensive reference of documents that should be immediately available.

My employer merged with another employer; do I file an amended petition?

An amended petition is required when the following changes occur: The job duties of the H-1B beneficiary change significantly to the extent that the duties are no longer similar to the position identified on the I-129 petition filed with USCIS; when the H-1B beneficiary is assigned to a location outside the metropolitan area of employment listed on the original LCA; when the employer's tax identification number is changed based on a corporate restructuring such as merger, acquisition, or consolidation; when the H-1B employer merges with another company creating a third entity which will subsequently employ the beneficiary; when the H-1B beneficiary is transferred to a different legal entity within the employer's corporate structure.

Please note that an amended petition may not be required where the new corporate entity has assumed the rights and obligations of the original employer and where the terms and conditions of employment remain the same but for the identity of the employer. Acquisitions involving asset purchases must be evaluated to assure that the purchasing company has acquired all of the rights and obligations of the original employer. Please see our article on Amended H-1B Petitions for further information.

What is my status if I am in OPT (F-1 status) and the H-1B quota is reached?

Optional Practical Training (OPT) is a form of work authorization normally granted for one year to students after completion of their studies. The OPT enables a student to engage in work directly related to the major area of study commensurate with the educational level.

The USCIS stated that for fiscal year (FY) 1999 it will accommodate F and J visa status holders in valid status whose employers filed a timely (i.e., prior to the expiration date of their present status) H-1B petition. Petitions in this category would be adjudicated with a start date of October 1, 1999 and they (including spouse and child) would be permitted to remain in the U.S. while waiting for H-1B status to be available on October 1, 1999. However, these candidates were not permitted to work or engage in any other activity that would be in violation of their respective F and J status. The USCIS clarified that there is no requirement that the F or J visa holders should have filed for change of status prior to the cap having been reached. The above USCIS regulation applied to FY 2000 as well

OK, the above was an interesting history lesson that may have affected your older siblings or seniors or even parents in college. In 2008, the USCIS implemented “cap gap” provisions allowing an individual whose H-1B petition had been filed with the employment start date of October 01, 2008, the earliest that a cap-subject petition can be approved for a fiscal year, to extend their OPT and remain in the U.S. legally even if their OPT expired prior to October 01, 2008 as long as their petition had been accepted within the visa cap. When the H-1B petition was approved with an effective start date of October 01, 2008, the individual would automatically be in H-1B status and could continue to remain in the U.S.

The same principle holds for fiscal years 2009 to 2016. Moreover, it may be possible to extend OPT for 17 to 24 additional months if a student has completed a Science, Technology, Engineering, or Math degree (STEM).

What documents should I take with me to be issued an H-1B abroad?

Please see our links to Applying for a Visa in Canada or Applying at Other U.S. Consulates. For Canada the applicant will receive an appointment letter with a list of documents that they should carry with them. They include the following: appointment letter from the Consulate; approval notice of H-1B petition (Form I-797); copy of Form I-129H and LCA; copy of all supporting documentation filed with Form I-129H; copy of degree evaluation, if any, equating foreign degree to U.S. degree; diplomas and transcripts; letter from H-1B employer stating title, salary, duration and nature of employment; copy of employment experience letter(s) from previous employer(s), completed state department application forms as per consulate instructions; passport-size photo; visa fees; copy of pay stubs and W-2 if employed legally earlier in the U.S.; passport. It is a good idea to check the Consulate’s procedures prior to the appointment.

What if I violated my status?

The best method to remain violation free--even if you have never actually violated status--is to keep a record of all documents related to your immigration matter. These documents may be called upon to verify maintenance of status when filing an application or petition to change status, extend status, or adjust status (end stage of "green-card" processing).

When filing an adjustment of status application, it is mandatory to show that the applicant has continually maintained valid legal status throughout the entire stay in the U.S. There is a 180 day grace period accorded to employment-based cases in the first three preference categories (EB-1 to EB-3) and an exception for applications by immediate family members of U.S. citizens. There is no fine or penalty for violations of status of up to 180 days in employer sponsorship cases; the applicant should never remain in unauthorized status for more than 180 days. If he or she exceeds the 180 day limit, it may still be possible for the applicant to apply for adjustment of status in the U.S. (as opposed to consular processing) by paying a "penalty" fee of $1,225 to USCIS provided the application for labor certification (now commonly known as PERM), or EB-1 to EB-3 immigrant petition, or visa petition in the case of family members, was filed no later than April 30, 2001.

Several employers have filed H-1B petitions for me. Any problem?

No. It is perfectly legal to be sponsored by several employers and to select, in any combination, one or more of these employers. To see it another way, you are not compelled to join an employer who has obtained H-1B approval for you, as long as you continue to maintain H-1B status through employment with an existing H-1B employer. See our article on Concurrent Employment for further information. An H-1B petition for part-time employment is approvable as long as the position is a specialty occupation requiring a relevant U.S. bachelor’s degree or foreign equivalent.

How do I travel when my adjustment of status is pending?

Adjustment of status is the last step in the process towards permanent residency. Final approval of the adjustment of status application after filing may take several years. If departure from the U.S. was made prior to issuance of advance parole document, the adjustment of status application would be deemed abandoned and denied.

The current USCIS policy allows a nonimmigrant on H or L visa status in the U.S. to maintain such status while an application for permanent residency (adjustment of status application) is pending. The law already permits people on H and L visa status to maintain a “dual intent” (i.e., an intent to immigrate to the U.S. even if present in the U.S. in H or L nonimmigrant visa status) with respect to their stay in the U.S. Thus, the new law exempts H-1 and L-1 nonimmigrants with a pending adjustment of status application as well as their dependent family members in valid status from having to obtain advance parole prior to traveling outside the United States. Such individuals can be re-admitted on the H-1 and L-1 visas, or the dependent H-4 and L-2 visas.

H and L visa holders have the option of applying for "general" employment authorization along with adjustment of status. General employment authorization allows the adjustment applicant to work for another employer. Please note that if an individual chooses to work for employers not authorized by the H-1 or L-1 visa terms, however, and thereafter wishes to travel, advance parole will be required, as the applicant would no longer be considered to be maintaining H-1 or L-1 status.

What if I have other questions not addressed here?

We have attempted to address common questions that are typically posed by our clients for the H-1B visa category. Hopefully you have found this FAQ helpful. If you would like your immigration matter evaluated, please contact Ajay K. Arora.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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