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Employment Based Nonimmigrant VisaH-1B

How can one qualify for H-1B visa?

To qualify for H-1B visa, you must demonstrate:
  1. that you have the ability to work in the specialty occupation that requires the application of highly specialized knowledge;
  2. that you are coming to the U.S. to earn money or a livelihood working in a professional capacity, and not for pursuing a hobby, for passing time, giving free advice or humanitarian service;
  3. that you seek temporary entry into the U.S;
  4. that you have a Bachelor’s degree or the equivalent in work experience. You should have Bachelor’s degree plus three years of work experience for each year of missing university education (U.S. Bachelor Degrees are awarded after four years of courses).

What is the initial period of H-1B visa?

The H-1B visa is initially granted for three years. The person remains in status so long as he or she continues to work with the same employer and same occupation at the approved work location. The maximum duration for H-1B visa is six years. If a labor certification request, I-140 or employment based adjustment application has been filed for more than 365 days, prior to the expiration of the employee’s current period of H-1B status, petitioning employer can request further extensions.

What is the most recent legislation on H-1B?

The most recent legislation on H-1B is the American Competitiveness in the 21st Century Act of 2000 that became effective on October 17, 2000. This legislation permits extension of H-1B status past the six-year limit where a labor certification has been pending for 365 days or longer, regardless of whether or not a Form I- 140 Immigrant Petition for Alien Worker, has been filed.

What is the processing time for H-1B visa?

Usually it takes between two to five months to process an H-1B visa petition. You must wait at least two to four weeks after you send in your application for a receipt notice from the USCIS. This unique receipt number can be used to track the status of your application when you call the number listed at the bottom of the receipt notice.

You can also check the status by visiting https://egov.uscis.gov/cris/Dashboard/CaseStatus.do or by calling the National Customer Service Center at 1 (800) 375 5283.

What do you mean by Petitioner?

The prospective employer is the petitioner of the petition. The petitioning company or organization may be a newly established company or organization, or one that has been operating for a long time.

What do you mean by beneficiary?

The prospective employee who is seeking the visa to work is the beneficiary.

What do you mean by H-1B dependent employer?

Employers are considered to be H-1B dependent if they fall into any one of the following three categories:
  • An employer has 25 or fewer full time employees, of which more than seven are H-1B employees.
  • An employer has between 26 to 50 full time employees, of which more than 12 are H-1B employees
  • An employer has more than 50 full time employees, of which 15% or more are H-1B employees.

When should I file my H-1B petition if I am currently under optional practical training on F-1 visa?

You may choose to file for H-1B status while in your practical training. Getting H-1B takes a while and sometimes you might have to wait for three to six months before you start H-1B employment. If you file your H-1B petition while in practical training, you will have your H-1B ready by the time you are out of training. If the H-1B petition is filed before the expiry of F-1 or B-2, you will not be out of status. If your OPT expires before the H-1B is approved, you cannot legally work until the H-1B is approved.

What are the limitations of H-1B visas?

  • Because of the H-1B Visa’s temporary nature, individuals who seek H-1B visa must have the intent to remain in the U.S. only temporarily, but dual intent is permitted under H-1B. However, individuals who seek H-1B visas need not maintain a foreign residence and may later petition for Lawful Permanent Residence. If a petition for Green Card is not made or the petition for Lawful Permanent Residence is denied, the H-1B worker will be required to return to his/her home country at the end of the authorized employment period.
  • An annual numerical limit is imposed on the number of H-1B visas issued during a fiscal year. For the fiscal year 2014, the cap was 65,000. However, the quota only applies to new H-1B applications, and does not apply to H-1B status holders who are seeking extensions or change of employer.

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

An H-1B visa is a nonimmigrant visa issued by a U.S Embassy abroad. H-1B status is a nonimmigrant status issued by the USCIS to foreign nationals already residing in the U.S. or upon entry with an H-1B visa. Legal status allows H-1B visa holders to stay legally within the U.S. while a visa allows you to seek entry into the U.S. legally.

Where is the Labor Condition Application (“LCA”) filed?

The LCA can now be filed online and a decision in regard to certification will also be available online, after a few days for processing.

I have been fired recently while on H-1B status. Can I remain legally in the U.S. by changing status to another nonimmigrant visa category?

Yes, you may apply for Change of Status to another nonimmigrant visa category for which you qualify. USCIS officers have been allowed to exercise their discretion to grant you another nonimmigrant status, if you apply for change of status.

What is the new ‘displacement’ or ‘no lay-off’ attestation rule?

There are two new ‘displacement’ attestations that apply to H-1B dependent employers:
  1. The first requires the employer to attest that he or she did not displace and will not displace a U.S. worker employed by the employer, within the period beginning 90 days before and ending 90 days after the filing of the H-1B petition based on the Labor Condition Application.
  2. The second requires the employer to attest that he will not place the H-1B worker with another employer where no such disclosure was made.

What are the documents required to apply for H-1B visa outside the U.S.?

  1. Passport valid at least for six months as on the date of interview.
  2. Copy of H-1B petition sent by your employer, including:
  • Complete copy of H-1B petition filed with USCIS
  • Appointment letter by your Employer of current date
  • Current Federal Tax Returns Papers of the company
  • Copy of the official evaluation of your degrees, if applicable and all original transcripts
  • Work experience letters

What is premium processing of H-1B petition?

Through the USCIS’s Premium Processing Service, U.S. employers may pay a $1,225 fee for expedited processing of their H-1B’s. This service guarantees that within 15 calendar days of receipt of petition by USCIS, it will adjudicate the petition. Employers may request Premium Processing by filing a completed Form I-907, Request for Premium Processing Service.

What status will be assigned to H-1B workers who are laid-off?

If you are laid-off or have resigned from your current employer, you will lose your status immediately. It is advisable to leave the U.S. as soon as possible to avoid legal issues. If you remain in the U.S. past your legal status, you will not be able to change your status to any other visa because you have lost your valid visa status. However, if your stay in the U.S., out of valid status, is only for a short intervening period, then you may request USCIS for their forgiveness. USCIS’s discretionary power to forgive is decided on an individual case by case basis and its merits.

Can H-1B Visa holder transfer visa to another company?

You may apply for an H-1B transfer to another company. For this, you will need a valid employment in the U.S. Your valid employment in the U.S. is proven through submission of recent paystubs and past years’ W2 (if applicable). If you do not have recent pay stubs, then you need to explain to USCIS why they are unavailable. As per the law, the petitions that were filed after the last date of employment are not eligible for change of status or change of employment because the applicant becomes out of status when the applicant loses the job. The laid off H-1B worker will be considered out of status even though he/ she may have valid H-1B status, in his or her passport or valid I-94 card, beyond the discharge date. If the H-1B employment is still valid, the employee does not incur unlawful presence.

I am still the employee of my company, but without pay, what is my status?

As per the law, you should get paid from day one of your U.S. employment. You cannot live in the U.S. without a salary unless you are on unpaid vacation or sick leave. Your status is legal and valid, but if you are not able to find another employment quickly, it is advisable to leave the U.S. if your employer refuses to pay your salary, you can notify the Department of labor (DOL) for payment of Back wages.

Can I re-enter the U.S. with the same H-1B visa and work with another company?

Yes, you may enter the U.S. with an H-1B visa from a different employer to join a new employer, but only if the new employer has filed an H-1B petition on your behalf. Filing is defined at 8 C.F.R. section 103.2(a)(7)(i) as physically received by USCIS.

What if there is a change in my working conditions while I am on H-1B status?

As long as you continue to provide H-1B services to a U.S. employer, most changes will not affect your H-1B status. You may change H-1B employers without affecting status, but your new H-1B employer must file a new Petition for Nonimmigrant Worker, before you start working for him. The merger or sale of your H-1B employer’s business will not affect your status in many instances. However, if the change means that you are working in a capacity other than the specialty occupation for which your employer petitioned; in that case it is an immigration status violation.

Are there any travel restrictions on H-1B visas?

No, there are no travel restrictions on H-1B visa as this is a multiple entry visa. You may travel outside the U.S. and reenter as many times during the validity period of the H -1B visa and approved petition.

Can I immigrate permanently to the U.S. when on H-1B visa?

Yes, you may apply for Adjustment of status while on H-1B visa. You may be the beneficiary of an immigrant visa petition, or take other steps towards Lawful Permanent Resident status without affecting H-1B status. This is known as ‘dual intent’ in immigration law. During the time your application for Green Card status is pending, you may travel on your H-1B visa rather than obtaining Advance Parole or requesting other advance permission from USCIS to return to the U.S.

Are there new exemptions to the H-1B cap?

Yes, in addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:
  • Institutions of higher education
  • Related or affiliated nonprofit entity
  • Nonprofit research organizations or government research organization

Are there any new filing exemptions?

Yes, an amended H-1B petition is not required to be filed when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner – basically there is a question of proving that H-1B personnel and some assets have been acquired by the successor-in-interest.

Who are eligible to use the H-1B portability’ provisions?

The portability provisions allow a nonimmigrant foreign national previously issued H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B petitioner when the new employer files H-1B petition for the alien. The best practice is to await the issuance of the receipt notice so that filing requirement is complete. Physical filing of the petition with the USCIS is required.

Are there any other Limitations on the ‘portability’ provisions?

A foreign national must have been lawfully admitted into the U.S. The new employer must have filed a ‘non-frivolous’ petition while the foreign national was in a period of stay authorized by the Attorney General. A non-frivolous petition is one that has some basis in law or fact. USCIS plans to further define this in its implementing regulations. Subsequent to such lawful admission, the foreign national must not have been employed without authorization.

What factors determine the prevailing wage for an H-1B beneficiary?

The following factors determine the prevailing wage:
  • Job title;
  • Educational and work experience requirements;
  • Job duties; and
  • Job location.

Is the employer responsible for return transportation if H-1B is dismissed?

If H-1B is dismissed before the end of the period for admission, the employer is liable for “the reasonable costs of return transportation of the alien abroad.”

Should the employer notify the USCIS about H-1B employee’s termination of services?

Yes. It includes notifying USCIS of the termination and paying the employee’s transportation home. A failure to do so by the employer will result in the continued accrual of front and back pay.

Can I work for multiple employers on H-1B visa?

Yes. An H-1B employee can work (part-time or full-time) for more than one employer. However, each employer must file a separate petition.

Can I pursue further university education while on H-1B?

Yes, there is nothing in the INA or the regulations that prohibits an H-1B visa holder from attending classes as long as studies are incidental to H-1B status.

Section II

H-1B Processing Foreign Consulate

Where can I look up arrival procedures in America?

More information on arrival procedures in the U.S. is available at the U.S. Customs and Border Protection site. http://www.cbp.gov/travel/international-visitors

I did not turn in my I-94 when I left the United States. What should I do?

If you returned home with your departure record Form I-94 (white) or Form I-94W (green) in your passport, your departure was not properly recorded. For the most current procedures on turning in your I-94 in order to correct your travel record, please click on the U.S. Customs and Border Protection site.
http://www.cbp.gov/travel/international-visitors/i-94-instructions

I just received a U.S. visa, but it has been accidentally damaged. Do I need to reapply?

If your visa has been damaged, you will need to reapply for a new visa.

For applicants in India:
You may contact support-india@ustraveldocs.com for more information.

Appointments and Interviews

How soon do I apply for my appointment?

Apply early! The wait times for appointments by post are available at the Department of State Travel Site.

Although majority of the applications are processed and ready to pick up within two business days, some applications will require administrative processing. We cannot predict in advance which applications will require administrative processing, nor do we know how long this process will take. It varies on a case to case basis.

Please apply at least 6-8 weeks before you plan to travel, and do not book tickets or hotels until you have a visa.

When will new appointment slots open?

Reducing wait times is one of U.S. Consulate’s top priorities. U.S. Consulates release appointment slots several weeks in advance. If those appointments are immediately filled, they then assess their capacity for opening new appointments, and release those dates incrementally.

I need to travel a few days after my interview. Can I take my passport with me at the end of the interview?

Yes. After you return from your travels, send your passport back to the Embassy. The U.S. Consulate will then continue to process and print your visa and will return your passport by courier.

For Indian applicants, use the link below:
Email support-india@ustraveldocs.com for more information about resubmitting your passport.

My wife and I just had a baby. Do babies need appointments?

The application process is the same for babies as it is for adults, except they do not need a separate appointment. In other words, you must pay all applicable fees, and follow the application process for each applicant.

My child needs a visa. Do my wife and I have to attend the visa interview with our child?

Yes. Both parents should attend the visa interview with their child if possible. Where one parent is unable to attend the visa interview with the child, the absent parent should provide a letter to their wife or husband that states they have no objection to the child’s application for a visa.

Can I accompany an applicant into the waiting room?

Due to security concerns and space limitations, U.S. consular sections do not permit interested parties such as friends, relatives, attorneys or business contacts to attend the visa interview with the applicant.

If an interested party wishes to provide information to a specific consular section concerning a particular visa applicant, they are encouraged to supply this information directly to the applicant. The applicant can then bring this information with them to the visa interview.

How long before my planned travel date should I apply for a visa?

The current wait time for visa appointments are available at the Department of State Travel site. Some visas may not be issued immediately after the interview due to required additional administrative processing. We cannot predict how long that process will take, so please do not make travel plans until your visa has been issued.

How do I reschedule an appointment?

Applicants in India can reschedule their appointments through
http://www.ustraveldocs.com/in/index.html?firstTime=No

For other Applicants, please visit your country and location specific U.S. Consulate website.

Refusals 214(b) and Administrative Processing 221(g)

What if my case is pending for Administrative Processing under Section 221(g)?

If the consular officer puts your case on hold under Section 221(g), it means your visa application was not complete or requires further administrative action. Processing times are different for every applicant. When the processing is finished, the passport will be returned to you by courier.

Before you contact the U.S. Consulate, please know that they cannot provide updates on your status once the processing has begun, and they cannot expedite the processing of your case.

For Indian Applicants more information on refused and pending visas is available through the link below.

http://newdelhi.usembassy.gov/consular/refused-or-pending-visa.html

Your case status can be looked up here:

https://ceac.state.gov/CEAC/

Can I reapply if I was refused a visa under 214(b)?

If you now have new information, or if your overall circumstances have changed significantly, you may re-apply following the same procedures as any other applicant. Re-applying is the only way to have your application reconsidered.

Why didn't the Consular Officer give me time to explain?

The Consular Officer who refused your visa is trained to evaluate all aspects of your case, such as your financial and family situation in your country, your stated intent in visiting the United States, your travel history, and many other factors. The Officer asked the appropriate questions to obtain the relevant information, weighed your answers with the other facts of your case, and made a decision based on that information.

Why didn't the Consular Officer look at my documents?

Applying for a non-immigrant visa is not a documentary process. Consular Officers never rely only on documents, although they may help support information you provide at the interview. If the Consular Officer made a decision in your case without reviewing documents, it was because the circumstances of your situation were clear. If your visa was refused, it is highly unlikely that any document you could provide would significantly alter the Consular Officer's decision about your case.

Why can't I get my money back?

All applicants for a U.S. visa must pay a non-refundable application fee. It cannot be returned if you fail to establish that you qualify for the visa.

Fraudulent Job Offers

I received a job offer from a company that said it would get me a U.S. visa but asked me to pay money. Is this legitimate?

Beware if: 1) You receive an offer of a job for which you have not applied; 2) You are asked to pay to get a U.S. work visa; 3) You are asked for your bank account details in order to get a job or visa; and 4) You are asked to contact someone specific at or meet someone near the U.S. Embassy or Consulate.

How to find out if a U.S. company is genuine?

Call the job-offering company in the U.S. and ask detailed questions about the company and the job. Genuine companies do not usually give a mobile number for employment contact. Request a landline number. Compare the area dialing code with the given location of the company. Most genuine U.S. companies do not use a Hotmail or Yahoo type email account. The offer may show genuine U.S.-company websites but email addresses may be false.

Example: genuine website - www.uscis.gov. False contact details – uscis@hotmail.co.us

For Indian Applicants:
Visa application and fees: The official website for information about the visa application process is

http://www.ustraveldocs.com/in/index.html?firstTime=No

All fees and instructions are listed there.

Obtaining H-1B Visa

Documents Required for H-1B Visa Stamping at a Foreign Consulate:

Upon approval of an H-1B petition filed in the United States by a US employer, the employee/H-1B applicant needs to obtain several original approval documents. The employee needs to prepare a set of documents to be taken for an interview at the US consulate in employee’s home country. Following is a list of required documents for H-1B visa stamping purpose.

Please Note: Supporting documents may vary depending on which US consulate you are appearing for the visa interview:
  1. A valid original passport. You are recommended to have a passport valid for at least six months after your interview date.
  2. All old passports.
  3. Photographs as per specification.
  4. US Visa Application Form DS-160 confirmation page stamped at the Visa Application Center (VAC).
  5. US Visa Application Fee payment receipt.
  6. Visa Interview appointment letter.
  7. Original Notice of Action-I797.
  8. Letters verifying your employment history and specific work skills.
  9. Original degree certificates along with mark sheets.
  10. Relevant diplomas or certificates, e.g. computer certification.
  11. If currently working on an H-1B visa, you may want to carry your pay slips for the current calendar year and your federal tax returns (IRS Form 1040 and W-2) for all the years in which you have been employed in the United States.
  12. Dependents need to submit a copy of the principal applicant's Petition (Form I – 797 and Form I -129 as applicable) and visa copy.
  13. Visa renewal applicants will have to submit a copy of the previous expired US visa stamped on their passports.
  14. Resume or CV.

Spouse/Dependent Children

  1. A copy of interview appointment letter.
  2. DS-160 Confirmation Barcode printout US visa application fee receipt.
  3. The original Notice of Action Form I-797 of the Principal Applicant.
  4. Photocopy of the Principal Applicant's valid visa (if applying separately).
  5. Original Marriage Certificate (for spouse) along with your entire wedding photo album.
  6. Original Birth certificate (for each child).

The information contained on this site is offered only for general informational and educational propose and does not constitute a legal advice or opinion. All efforts are being made to keep this information current, but it may not be guaranteed that it applies to your specific case, and should not be relied upon or acted without seeking the advice of qualified attorney.