Frequently Asked Questions on H-1B Visa
Question 1: Can you please tell me what it takes to qualify for an H-1B Visa?
Answer 1: H-1B Visas are available for individuals coming to the United States to perform temporary work in “specialty occupations.” To be eligible for a temporary H-1B work visa, an individual must have a Bachelor’s degree or its equivalent as well as seek to work in a related specialty occupation. A specialty occupation is an occupation that requires:
(1) attainment of at least a bachelor’s degree or equivalent in the specialty; and
(2) theoretical and practical application of a body of highly specialized knowledge.
Positions of a professional nature are considered to be specialty occupations. A professional position is one in which professional knowledge and background is essential to its performance. Lawyers, architects, physicians, engineers, teachers in elementary, middle, and high schools and colleges, as well as other professionals work in specialty occupations.
Question 2: I understand that the number of foreign nationals who obtain an H-1B has been reduced. Can you please explain?
Answer 2: Effective October 1, 2003 (the beginning of the new fiscal year for the Department of Homeland Security), the cap on the number of H-1B petitions for the fiscal year have decreased from the current 195,000 to 65,000.
U.S. Citizenship and Immigration Services (USCIS) announced on Feb. 17, 2004 that it has received enough H-1B petitions to meet this year’s congressionally mandated cap of 65,000 new workers. After Feb. 17, USCIS will not accept any new H-1B petitions for first-time employment subject to the FY 2004 annual cap.
The earliest date a petitioner could file a petition requesting FY 2005 H-1B employment with an employment start date of October 1, 2004, would be April 1, 2004
However, petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to: · Extend the amount of time a current H-1B worker may remain in the United States · Change the terms of employment for current H-1B workers · Allow current H-1B workers to change employers · Allow current H-1B workers to work concurrently in a second H-1B position
USCIS also notes that petitions for new H-1B employment are not subject to the annual cap if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.
Question 3: My employer wants to hire me to working for his company as soon as possible. I am in F-1 status and my OPT is about to expire. How soon can I begin working for my new employer?
Answer 3: You will need to file using premium processing. If you provide all the necessary documentation, your H-1B will be approved within 14 days. However, you cannot begin working for your new employer until you receive your H-1B approval OR October 1, 2004, whichever is later.
Nevertheless, you should file immediately. US Citizenship and Immigration Services (USCIS) announced on September 2, 2004 that it has received 45,900 H-1B petitions that will count against the Congressionally-mandated cap for fiscal year 2005 (October 1, 2004 through September 30, 2005). The limit in fiscal year 2005 is 65,000. Some of those numbers are reserved for nationals of Chile and Singapore, however, due to certain Free Trade Agreements (FTAs) signed by each of these countries with the United States. Thus, there actually are only 58,200 H1B cap numbers available for each fiscal year. Therefore it is likely that the cap will be reached fairly soon, perhaps before the new fiscal year begins on October 1, 2004. Since the cap number is based upon the date of the case filing, not case approval, those who have H1B cap-subject cases will need to file their H1B petitions as soon as possible to have a chance at the remaining H1B numbers.
Out of Status/Job Termination
Question 4: I was laid off 10 days ago. What happens now that I have found another employer willing to sponsor me for the H-1B?
Answer 4: According to recent USCIS memos, the H-1B status ends upon termination of the H-1B, and therefore you are “out of status.” The USCIS recently stated that there is no grace period for the employee to remain in the US, not even for 10 days. The USCIS prohibits any change, extension, or amendment of status for individuals out of status. The exception to this is a regulation that allows the USCIS to exercise discretion and overlook minor gaps in status when making decisions. If the gap is too long, the employer can submit a petition to the USCIS to sponsor the employee for a new H-1B, and the USCIS will probably approve both the new H-1B petition and the H-1B extension of stay, but will not attach an I-94 card to the approval notice. The H-1B employee will probably have to depart the US and make an application for an H-1B visa stamp at the US Consulate abroad (generally, if the visa stamp in the passport had expired), and obtain a new I-94 card granting H1B status upon re-entry.
As long as you have not overstayed the expiration date on your I-94 card by more than 180 days, you should be able to reenter the US, and begin working for your new employer.
Question 5: Will one be barred for reentry [3 or 10 years] if a laid-off H1-B worker is out of status for over 180 days?
Answer 5: Being out of status for 180 days is not the issue; rather whether one has stayed for more than 180 days beyond the expiration date of the I-94 card will govern the 3-year or 10-year bar taking effect in most cases.
Question 6: My H-1B Visa expired last week, and my I-94 expires next year. What should I do?
Answer 6: Since your visa stamp in your passport has expired but not your H1B status itself, then there is no need for concern.
Your visa stamp is a travel document only. If the visa stamp in your passport expires, then you may apply for the visa stamp at a consulate abroad the next time you travel out of the country. (Effective August 15, 2004, the Department of State is no longer renewing or revalidating visas.) Your legal status here in the U.S. depends generally upon the expiration date written on the I-94 card by the USCIS officer at the port of entry. As long as your I-94 card is currently valid, and you are continuing to work for the sponsoring employer under the terms of the petition, then you are legally permitted to live in the U.S., whether your visa stamp in the passport has expired or not.
Question 7: I was laid off and found a new employer to sponsor me for an extension of my H1B status. I am concerned that USCIS will not approve the extension of stay request and I will have to travel abroad to apply for my new H1B visa. I have heard that if “extraordinary circumstances” exist, USCIS has discretion to grant an extension of stay to a person who is out of status. What constitutes “extraordinary circumstances?”
Answer 7: The USCIS has stated that being laid off is not considered an “extraordinary circumstance” and therefore it will not issue a blanket forgiveness of status violations for laid-off temporary workers. Instead, USCIS will continue to consider each case on its individual merits. This means that there is always a risk that the USCIS could deny the extension of the H1B status and require the H1B employee to depart the U.S. on short notice.
Question 8: My friend submitted his H-1B application in February. His practical training (“OPT”) ended in April. In August, his H-1B application was rejected. An appeal was submitted. Since it is legal for him to stay in the US to wait for the appeal result, is it OK for him to apply for an H-4 visa or another H-1B visa with a new company at this point? Does he need to leave the US in order to do that?
Answer 8: If the appeal is approved, then your friend will be fine. On the other hand, if the appeal is not approved and this person waits in the US until he or she receives the news, there might be a big problem. Since an USCIS officer and immigration judge deemed your friend to unlawfully present, this person will start accruing “unlawful presence” as of the date of denial in August, if the case is ultimately denied. 90% of cases appealed are denied. Your friend should consider departing the US before 180 days of unlawful presence have accrued. He or she could then apply for either a new H-1 or H-4 overseas.
Question 9: I am an H-1B Visa Holder and just completed a contract for company X. Now I am waiting for my next contract. How long can I stay in the US before I get my next job offer?
Answer 9: As long as the H-1B employer pays you a salary, irrespective of whether there is work available, the H-1B is considered to “maintain status.”
Question 10: Will it help my status if my employer keeps me on the payroll, although I am terminated and no longer being paid?
Answer 10: It is not likely that USCIS will consider a person as being “in status” when s/he is not being paid. When a person applies for either an extension of the H1B status with the H1B employer or for a change of status, that person will be expected to be able to produce recent pay stubs to the USCIS to show maintenance of lawful non-immigrant status. Without these, the USCIS is not likely to regard the H1B beneficiary as having maintained valid legal status.
Question 11: Can I apply for a status other than H1B if I am being laid off?
Answer 11: In certain circumstances, an H1B employee may be able to apply for another status. There are a number of different options. Depending on a person’s individual circumstances, one may qualify for one of these categories.
Viable options may include:
* F-1 (student status),
* H-4 or F-2 (dependent of an H1B or F-1 spouse, respectively) and
* B-2 (tourist) or B-1 (business status)
While such a change could help one stay in status, it is important to ensure that the eligibility criteria are met for whichever status one chooses. USCIS has confirmed that a laid-off H1B worker may apply for a visitor’s visa in order to look for employment. However, a person who is on a status other than an H1B may no longer be able to enjoy the benefits of H1B portability and will be subject to the H-1 cap. This may be the only available option if the applicant’s I-94 is expiring, but should not be done without a full understanding of the legal and other consequences.
Question 12: If my employer agrees in the severance package to pay me for several months after I am laid off, am I nonetheless considered terminated and therefore “out of status” during that period?
Answer 12: According to USCIS, a person in H1B status is considered out of status from the day his/her employment is terminated by the employer. Whether one may still be receiving a paycheck from the employer is irrelevant.
Question 13: I worked in the US for five years in H-1B and went back to my home country. I came again to the US after spending one year outside the US. How long can I stay in US on a new H-1B visa? Does the H-1B clock reset once the visa holder has traveled abroad for one year?
Answer 13: Since there was a break of 1 year on your H-1B you would be able to start a fresh six-year period. However you will be required to show evidence that you were residing abroad for the year.
Question 14: I entered on an L-1 Visa in April 1996, switched over to an H-4 Dependent in October 1998, and changed status to H-1B in March 1999. Now I want to apply for an H-1B extension. How much more time do I have left on my H-1B Visa?
Answer 14: Since you entered on an L Visa, then your visa expires in April 2002. The maximum duration of stay in H status is six years. If a person has held more than one type of H status, or has held L status, then stays in all of these statuses are added together to determine how much time remains available. For example, if a person came to the U.S. on an L1 visa, later changed to H1B, and then to H4, it is necessary to add up the period of time spent on all three of those categories towards the 6 year stay allowed. Therefore, you cannot extend your H-1B Visa, as you have stayed for the maximum duration, unless the AC21 Portability applies.
Question 15: What are my options when my H status expires?
Answer 15: The only way a person can work after the six years is if s/he:
(1) Changes to a nonimmigrant status which enables the person to work, such as the O-1 or J-1
(2) Obtains permanent residency based on an approved immigrant petition (where the priority date is current) by attending the immigrant visa interview at the U.S. consulate in the home country or filing papers towards adjusting status to permanent residence in the U.S. and working on the employment authorization document (“EAD”) issued within approximately 3 months after filing the adjustment of status application
(3) Departs from the U.S., lives abroad for one year, and then re-enters the U.S. on another H1B visa for three years, at a time, for a maximum total of six years again
(4) Works abroad, for one year, with a parent, subsidiary or related corporation of an U.S. corporation and reenters the U.S. on an L1 status
(5) Obtains an H1B extension to recapture significant time spent abroad during the six years as H1B
(6) Leaves the country several months prior to the six year limit and returns on an H1B for the remaining time.
Switching Employers: Extension of Status
Question 16: I have an H1B visa for full-time work and a concurrent part-time H1B for another job. I have been laid off from the full-time job and want to revert to the part-time job. I haven’t been working for the part-time employer since I have been in the U.S., which has been 1 year now. Can I go back to the part-time job now?
Answer 16: According to the U.S. Department of Labor, one cannot simply return to a “dormant” H-1 approval with a prior or different employer. Employers are required to pay H1B employees the prevailing wage salary as stated on the H1B petition unless the H1B employee is terminated. Therefore, the part-time employer was required to either start the H1B employee and pay the wage stated on the H1B petition for part time employment or terminate the H1B employee and notify the USCIS of the termination of employment. If the prior H1B employer decides to re-hire an H1B employee based on having an H1B petition approval for that employee, the U.S. Department of Labor takes the position that the employer is responsible for wages from the beginning of the H1B petition approval for part-time employment, even if the employee never worked for the prior H1B employer. This raises difficult issues and potential problems for both the employer and employee. Usually, what is done in this instance is that the second employer may simply choose to file a new H1B petition.
Question 17: I have an H1B and I would like to file another H1B with another employer, but I want to wait before I start work. Can I do this?
Answer 17: Yes. There is no obligation to begin work immediately after the second H1B Petition is approved. But you must maintain your status by working for one of the two companies that have approvals for you. There is nothing to prevent you from waiting to begin work, especially if you have a project to finish. As long as the prior employer has not revoked the H1B petition with the USCIS, it is still legal to be working for the prior company.
Question 18: If I have a valid H-1 visa and I change my employer, can I use the same H-1 visa to re-enter U.S. from Egypt?
Answer 18: A person may use the earlier and unexpired H1B visa stamp in the passport with the new H1B petition approval (for the new employer) to enter the U.S.
Question 19: Is it required to have latest pay stub at the time of H-1 transfer from a new employer?
Answer 19: The USCIS requires proof that the person is maintaining status with the existing employer before the USCIS will approve the extension of status for the H1B employee. So submitting 2 or 3 recent pay stubs to the USCIS helps to show that one is still working for the H1B employer.
Question 20: My H-1B with my present employer, Company A, expired this January, 2004. Company A has already applied for my extension, last November, but it has not been approved yet. I have another offer, with Company B, which is willing to transfer my H-1B. Do I have to wait until my present extension application is approved? Or can I go ahead and begin another H-1B transfer with the new company?
Answer 20: You can have Company B file for an H-1B for you at any time. If you are in status now, the USCIS will be able to extend your status. If you can show that you are in status because of the following:
(1) H-1B for company A was valid until January.
(2) H-1B extension for company A was filed in November, prior to the expiration of your lawful status.
(3) You still work for company A. Show pay stubs for Company A. The law allows you (the alien) to continue employment in the same status while an extension application is pending for up to 240 days. Therefore, you are in status.
Thanks to AC21, you will be permitted to work for Company B immediately upon filing new H-1B petition.
American Competitiveness in the Twenty-First Century Act (“AC21”)
Question 21: I understand that a Bill passed in October 2000 that affects H-1B Visa Holders.
Answer 21: AC21’s Portability Provision for H1B Employees. The American Competitiveness in the 21st Century Act (AC21) of October 2000 allows an employee to begin working for a new H-1B employer as soon as that new employer files a non-frivolous H1B petition with the USCIS as long as:
(1) The employee was lawfully admitted to the U.S.
(2) The employee was not employed without authorization since lawful admission to the U.S., and
(3) The H1B petition was filed before the end of the employee’s lawful admission to the U.S., i.e. prior to the expiration date on the I-94 card.
Question 22: Can I begin working for the new employer once I have filed the H1B petition?
Answer 22: If you were previously on H1B status, then you are legally allowed to start working for the employer upon filing the H1B Petition.
If you are in the U.S. and the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), then you may start working for the new employer upon filing the H1B Petition. If the H1B Petition is approved without an I-94, which means that the USCIS did not approve either the change of status or the extension of status but only approved the H1B petition, then you must first exit the U.S. Depending on if the H1B visa stamp in the passport is valid, the person may be able to fly abroad and reenter on a new I-94 card to get back into status, assuming the earlier I-94 card is either unexpired or had expired less than 180 days prior to departing the U.S. (If earlier visa stamp expired, have to also get new visa at the home country consulate.), and finally be readmitted on H1B status before starting the job.
Question 23: I will be in H status for 6 years as of August 10, 2004. My employer wants to sponsor me for a green card, but I’m sure that the green card will not be approved before my I-94 expires next year. Will I have to leave the country and wait for the green card to be approved, which I know can take up to 3 years?
Answer 23: Not exactly. Yes, your H status will expire in 6 years, but AC21 allows for additional extensions in one-year increments if:
A Labor Certification OR an employment-based Immigrant Visa Petition has been filed at least 365 days prior
Therefore you can extend the H status, and remain working for your sponsoring employer.
Question 24: I’m currently in H-4 (dependent) status. What will be my status after I apply for divorce? For how long can I stay in US legally after taking divorce? Should I apply for change of visa status before applying for divorce?
Answer 24: Your status on H-4 is dependent on your marriage to the H-1B spouse. Once the marriage is terminated, you are out of status. Therefore you should find ways to change status before the final decree of divorce.
Question 25: I was on H1B and my spouse was on H-4, but no one told us we had to apply separately to get her H4 status extended. She has been out of status for over 8 months. What can I do?
Answer 25: There is a strong likelihood that the 3-year bar could apply against the spouse for failure to maintain lawful status beyond 180 days. According to the USCIS, ignorance of the law is never a valid excuse.
This problem often occurs when the spouse would have applied for the visa stamp at the consulate for the first time, and entered the U.S. based on the visa stamp and the I-94 card issued by the USCIS officer at the port of entry to coincide with the principal H1B holder’s approval notice date. At the time of filing the H1B extension, many people assume that all dependents are automatically included. This is not the case.
In any case you should contact an attorney immediately. This is a very difficult situation, and you need assistance in developing a plan of action and understanding the risks and issues involved with each option.
Question 26: Do we have to file for H-4 every time an H1 transfer is done?
Answer 26: It is not necessary to file an H-4 each time, as the H-4 is not employer-dependent. Only benefit in re-filing is so both spouses have same expiration date, so no one forgets the expiration date.
Change of Status
Question 27: I have a F-1 student visa. My husband joined me recently on an F-2 visa. Is it possible for him to change to a H-1 visa, if an employer is willing to do the necessary paperwork? If so, how difficult is the process?
Answer 27: Since you are in the US and are switching from a non-H-1B to H-1B, you are applying for “change of status.” As long as a non-immigrant, in this case the F-2 alien, has not violated the terms of the visa status, (in this case by not overstaying or not working without permission), it is possible to request for a change of status from the USCIS. Yes, if your husband finds a sponsor that sponsor can request a change of status from F-2 to H-1B. This is done all of the time.
Question 28: My H-1B petition has already been filed and will be a part of quota for this October. I want to travel abroad, and plan on getting married in November this year. My question is, will I be able to travel in November in my (OPT/F-1 status), without any effect on my H-1B application processing?
Answer 28: If your case is not yet decided, then the change of status part will be nullified if you travel abroad. If your OPT will expire by then, you’ll need to wait abroad until the H-1 is approved, and then pick up the H-1B visa at the US consulate abroad.
Question 29: I am on H1B and I am changing employers. I want to travel to my home country. Is it legal for me to leave?
Answer 29: Yes, only if you continue to work for the employer for whom you are currently approved to work when you return. It may cause some problems if your approval for the new company comes through while you are abroad and you enter on your current approval notice with the prior employer. This is because the expiration dates of the two may differ, and you would be admitted for the prior period of time instead of up to the expiration date of the new petition. The timing of your trip can complicate the situation. Although there have been several changes in the USCIS interpretation that affect those who travel while a petition is pending, the safest option is to avoid travel unless the timing issues are discussed with an attorney.
Question 30: I am on F-1 status and my husband on H1B and he has recently filed for adjustment of status (“AOS”) (i.e., from non-immigrant visa to a green card) for both of us. Do I have to give up my F-1 status or can I continue with my valid F-1?
Answer 30: Once a person files the AOS, s/he is considered in the AOS pending status and no longer can maintain the non-immigrant status, except for the H1B/H-4 and the L-1/L-2 status. So the F-1 status is no longer available but the H-1B is still available for your husband. If you leave and the country and reenter on the F-1 status, the USCIS would consider your AOS application to be abandoned. However, if your husband reenters on the H-1 status, his AOS application will NOT be abandoned.
Question 31: If I apply for a change of status, and in the meanwhile find a new employer, can I revert to H1B again?
Answer 31: It is generally possible to apply for and obtain H1B approval when one has already applied for a change in status and this status is still pending. The last status approved is the one that governs. Therefore, it is important to take steps necessary to assure that the H-1 will be the last application approved. This may require withdrawal of any previously filed petitions / applications. However, this should be carefully reviewed with a qualified immigration attorney to assure that a withdrawal does not result in an “out of status” period.
Question 32: I am both Canadian and a US permanent resident. I am living permanently in Canada. I have a reentry permit which will expire in six months. I have both a BS and an MS in engineering and am a software contractor for US clients. All my work is telecommuting except for occasional on-site visits that last three or four days. After my re-entry permit expires, what status should I use for visits to client sites? I am a sole proprietor (i.e., independent contractor).
Answer 32: As an independent contractor, you might want to look at setting up a company in the US and entering on an E-2 treaty investor status or on an H-1B visa for the company you are servicing. Additionally, your company could petition for for an H-1B you must have an employer sponsor you but we recommend you consult with a qualified immigration attorney before pursuing this option.
Question 33: Will a misdemeanor conviction for shoplifting cause a problem in getting an H-1B visa extension?
Answer 33: The answer is going to depend on how the sentence reads and the definition of the crime in your state. Shoplifting can sometimes be an aggravated felony, though often it is not a problem. Assuming it is, then you’re going to have to disclose the arrest and conviction when applying for the visa stamp. Even if it does not affect admissibility, you’ll still need to discuss the arrest in your immigration paperwork simply because the question is there.
Question 34: I am currently working full time. However, my employer wants to reduce my hours so that I will only be working part-time. Can I work on a part-time H-1B and if I find a similar part-time position, can I work on 2 part-time H-1Bs?
Answer 34: Yes. While there is technically no limit to the number of companies for which an individual can concurrently work, all of the requirements, including Labor Attestations, etc., must be filed for EACH AND EVERY employer. All that the law requires is that each employer hold an approved H-1B for the employee.
Question 35: I have a B.S. degree in economics science, but since graduation I’ve been working in the IT sector (software and business development). I have ten years experience now.
Answer 35: You are most likely eligible for an H-1B visa, as the basic requirements are that you have a college or university degree, and that you are working in the general area of your degree. Many people in the IT field don’t have specific computer degrees, though. Since you have been working in IT for ten years, I don’t think the lack of a computer degree would be detrimental to your getting the visa.
Question 36: I graduated from a foreign university. I was required to get a credentials evaluation to establish whether my foreign degree was equivalent to a 4-year Bachelor’s Degree in the US. However, the Evaluator determined that my foreign degree was only equivalent to a 3-year degree. Does that mean I will not qualify for an H-1B as I do not meet the requirement the Bachelor’s Degree requirement.
Answer 36: While a 4-year Bachelor’s Degree (or its foreign equivalent) is required to qualify for an H-1B, if you can establish that you had substantial job experience that relates to your current offer of employment, then you can still meet the Bachelor’s Degree requirement. Substantial means 3 years related work experience will count as one year of college. Therefore, 3 years of work experience + 3 years of college will be sufficient to meet the Bachelor’s Degree requirement.
Question 37: I have been laid off from company A. I used to earn $68,000 per year. Now Company B has filed for my H1B transfer with $40,000 salary in California. Does such a heavy reduction in salary allow USCIS to reject the case?
Answer 37: A mere reduction in salary is not the primary issue. Legally the H1B employer has to pay an employee the prevailing wage.
Miscellaneous H-1B Issues
Question 38: I am a Pakistani citizen and received an offer to work for a US company. Will it take longer for my H-1B visa to be approved since September 11?
Answer 38: According to the U.S. Department of State (DOS), since October / November 2001, there is now an additional security check required for non-immigrant visas (such as B-1 Business visas, B-2 Tourist (Visitor) visas, F-1 Student visas, and H1B Temporary Worker visas) for males from certain Middle Eastern and Islamic countries. The delays are expected due to increased security checks. Those affected will be checked against terrorism databases maintained by the F.B.I.
Question 39: I filed my H1B over two months ago. Is there anything that can be done to expedite the case?
Answer 39: You can file your application via premium processing. USCIS guarantees that you will either receive a decision or a request for additional evidence within 14 days. We have used premium processing numerous times and have found them to be extremely efficient.
Question 40: My friend filed his H1B petition at the same time as me, but his petition was approved already; why wasn’t mine approved too?
Answer 40: Each Service Center and each USCIS officer has a different caseload and each one takes a different amount of time to process cases. Unfortunately in most cases there is nothing a law firm can do to ensure that your case will be processed in the same amount of time as other cases.
Question 41: My H-1 Petition filed under premium processing was rejected. Employer filed appeal on this. How long will it take for response from USCIS in this case?
Answer 41: After a USCIS denial of an H1B petition, the appeal can take at least a year and the person is not considered to be in valid legal status while the appeal is pending. So there is a risk involved with the appeal. We have been hearing that premium processing cases are likely being denied or subject to greater scrutiny by the USCIS. Better to file a clean, new case with the required evidence which has a better chance of getting approved earlier than the appeal.
Question 42: My H-1B visa was approved, but I did not arrive in the US for another two months because of security clearance. When does my H-1B status begin?
Answer 42: Your six years begins from the time you first arrived in the US in H status, not from the time it was approved.