Frequently Asked Questions
H1-B Visa Questions
1.What is H-1B visa?
The H-1B is for professionals who are coming to work in a specialty occupation. The proffered job must be in a ‘specialty occupation’ and must require a bachelor’s degree as a minimum qualification to enter into the job. The worker may qualify based on years of employment experience that are determined to be the equivalent to a bachelor’s degree. This visa allows persons who are offered a position to work for the U.S. employer in their field of occupation.
2.How can one qualify for H-1B visa?
To qualify for H-1B visa, you must:
- Demonstrate that you have the ability to work in the specialty occupation that requires the application of highly specialized knowledge
- Be coming to the U.S. to earn money or a livelihood working in a professional capacity, and not for pursuing a hobby, for pass time, giving free advice or humanitarian service
- Seek temporary entry into the U.S.
- 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.
3. What is the initial period of H1-B visa?
The H1-B 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. The maximum number for H1-B 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 his current period of H1-B status, petitioner can request further extensions.
4. Is there any difference in H1-B status and H1-B visa?
Getting H-1B status and getting your visa stamped are two different processes that are often confused . Granting H-1B approval implies that you are authorized to work in the U.S., and getting visa stamped implies that your passport has been authenticated to enter the U.S.
5. What is the most recent legislation on H1-B?
The most recent legislation on H-1B is the American Competitiveness in the 21 st Century Act of 2000 that became effective on October17, 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.
6. 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-four weeks after you send in your application for a receipt 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 check the status by visiting uscis.gov or by calling 1800 number.
7. 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.
8. What do you mean by beneficiary?
The prospective employee who is seeking the visa to work is the beneficiary.
9. 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.
10. 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 itself. Getting H-1B takes a lot of time and sometimes you might have to wait for three to six months before you start employment. If you file your H-1B petition while in the 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.
11. What are the limitations of H-1B visas?
1. 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 H1-B. 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
2. An annual numerical limit is imposed on the number of H-1B visas issued during a fiscal year. For the fiscal year 2008, the cap is 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.
12. 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 H1-B Visa holders to stay legally within the U.S. while a visa allows you to seek entry into the U.S. legally.
13. Where the Labor Condition Application (“LCA”) is filed?
LCA can now be filed on line and the decision is known just on click.
14.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.
15.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 did not displace and will not displace as 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:
16. 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. Documents sent by your employer:
- * Complete copy of H1-B 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
17. What is premium processing of H-1B petition?
Through the USCIS Premium Processing Service U.S. employers may pay a $1,000 fee for expedited processing of their H-1B’s. This service guarantees that within 15 calendar days USCIS will adjudicate the petition. Employers may request Premium Processing by filing a completed Form I-907, Request for Premium Processing Service.
18. 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. You will not be able to change your status to any other visa because you have lost your valid visa status. However, should you decide to follow the petition , the better practice is to request the USCIS for forgiveness for the intervening period (if it is really short); or request for approval of the petition subject to the condition that the employee will go out of the country for interview and visa stamping.
19. Can H1-B Visa holder transfer visa to another company?
You may apply for an H1B transfer to another company. For this you need a valid employment in the U.S. Also you have to prove that you have recent pay stubs and last year W2 forms (if applicable). If you do not have recent pay stubs, then you may need to explain the reasons to USICS. As per 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 through he or she has valid H-1B visa in his or her passport or valid I-94 card. If the H1-B visa is still valid, the employee does not incur unlawful presence.
20. 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 refused to pay your salary, you can complain to Department of labor (DOL) for payment of back wages.
21. Can I reenter 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.
22. 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, it is an immigration status violation.
23. Are there any travel restrictions on H1B visas?
No, there are no travel restrictions on H-1B visa as this is a multiple visa. You may travel outside the U.S. and reenter as many times during the validity period of the H visa and approved petition.
24. 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 the 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.
25. 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 or government research organization
26. 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 H1-B personnel and some assets have been acquired by the successor-in-interest.
27. 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.
28. 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.
29. 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
- Job location
30. Is the employer responsible for return transportation if H1-B is dismissed?
If H1-B 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.”
31. Should the employer notify the USCIS about H1-B employee’s termination of services?
Yes. It includes notifying USCIS of the termination and paying the employee’s transportation home result in the continued accrual of front and back pay.
32. Can I work for multiple employers on H1-B visa?
Yes. H1-B employee can work (part-time or full-time) for more than one employer. But each employer must file a petition.
33. Can I pursue further university education while on H1-B?
Yes, there is nothing in the INA or the regulations that prohibits an H1-B visa holder from attending classes as long as studies are incidental to H1-B status.
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