DISCUSSION BOARD BLOG CONSULTATION CONTACT US
 
 

FREQUENTLY ASKED QUESTIONS

 

  1. The H-1B Quota Cap/When to File?
  2. Degree/Experience Requirements
  3. Employer’s Responsibilities
  4. Wage Issues
  5. Consular Issues
  6. Changing Employers
  7. Six-Year Limit And Beyond
  8. Concurrent and Part-Time H-1Bs
  9. Processing Green Cards
  10. Termination of Employment
  11. Status Issues
  12. Travel
  13. Dependents
  14. Hiring a Lawyer
  15. Miscellaneous Questions


1) The H-1B Quota Cap/When to File?

I understand that my employer can file my H1B Petition as early as April 1st next year. What is the best time to contact an attorney to start the process?

We would strongly advise to contact an attorney latest by the end of January, as attorneys tend to get extremely busy during the months of February and March.

I am here in the US on H-1B visa and another employer is ready to file an H-1B petition on my behalf. Am I subject to the cap?

If you are currently employed by a cap-exempt employer, and are seeking to transfer your H1B to a cap-subject employer, you are subject to the cap.


Will it help in any way to beat the cap if my Company files my H1B Petition under Premium Processing?

No. Premium processing only guarantees a faster decision from the US Citizenship and Immigration Services (USCIS). It does not protect one from the quota limit.

Is a school district cap-exempt for H1B purposes?

Yes, if it can be shown that it is a non-profit entity affiliated with an institution of higher education, e.g., being used as a training school for teachers, etc.


Can we file the Labor Condition Application (LCA) before April 1st?

Yes. But remember LCAs can be filed only six months ahead of the H-1B start date. If it is filed, say, March 25th, the H1B start date has to be September 25th and ending date would be September 24th three years later. Still the employer can ask for a start date of October 1st, but the ending date has to be September 24th three years later, coinciding with the LCA ending date.

Can we file an H1B Petition on April 1st under MS quota for a prospective employee who will graduate with a Master’s degree in the middle of May?

Yes, only if he/she has completed all the requirements at the time of filing. You should get a letter from the appropriate authority in his/her university attesting this.

Our prospective employee claims he has a US MS degree from an on-line university. Can we file for his H1B under MS quota?

Yes you can, if the degree is from an accredited US University.

I work for a cap-exempt Employer and I would like to do part-time work for a cap-subject Employer. Can such an Employer file for a concurrent H1B for me?

Because your employer is cap-exempt, it does not appear that you have been counted against the cap. You need to be counted against the cap to enable a cap-subject employer to file a concurrent part-time H1B for you. So you need to wait until April 1st next year. However, if you wanted to do part-time and/or concurrent work for another cap-exempt employer, the Petition can be filed any time.

If the USCIS receives my H1B Petition on the day the cap is reached, can I expect to get an approval?

Not necessarily. If more petitions are received than the cap-subject numbers available, USCIS may return the petitions received in excess of the cap. In the past USCIS used a random selection for this purpose. It is strongly advised to file the petition on April 1st or as soon thereafter as possible.

Are persons on H-4 status subject to H1B cap?

Yes.

Are persons on L-1/L-2 status subject to H1B cap?

Yes.



2) Degree/Experience Requirements

Is it mandatory for a beneficiary to have experience in the field of occupation?

No, even fresh graduates qualify for H1B visas.

Our prospective employee has a foreign degree in Mechanical Engineering, but the H1B Petition we are going to file is for a Computer Programmer. Can we use academic evaluation and his experience letters to qualify him? Or, do we need to get an experience evaluation before filing the Petition?

It would be a good idea to submit the experience letters along with the academic evaluation. You need to get an experience evaluation only if USCIS specifically comes back with a Request for Evidence (RFE) for it.

Can you tell me how much evaluating agencies charge for experience evaluation?

We have seen that the charges vary from $200 to $400.

How can an employer justify the requirement of a Bachelor’s degree for a position, such as, say, an HR Supervisor?

See what the “industry requirement” is, i.e., the requirements of other similarly situated employers. If they hire only persons with a Bachelor’s degree, you could provide such evidentiary documentation. Generally, you should be able to prove one of the following:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that the particular position is so complex or unique that it can be performed only by an individual with a baccalaureate degree;
  3. The employer normally requires a baccalaureate degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
    Several documents could also be used to support your case. An immigration attorney should be able to explain this to you.


How to find out if a job qualifies for H1B visa?

Please see the above answer.

To qualify for H1B visa, the job should be a “specialty occupation,” meaning one that normally requires a US Bachelor’s degree or the foreign equivalent. Generally, IT jobs such as Computer Programmer, Software Engineer, etc. qualify as specialty occupation. The additional evidence, if asked for by USCIS, can include a detailed job description demonstrating how it is specialized enough to require a BS, proof that the Employer normally requires a degree for the particular position (with copies of degrees and pay records of other similarly situated employees), evidence of industry standard that can include printouts of other companies’ ads for similar jobs, etc. Occupation Outlook Handbook (OOH) is a good reference point.

We have an opening for a technical position that usually needs a bachelor’s degree, and have found a candidate with enough experience, but no bachelor’s degree. Can we apply for H1B for this person?

If the person has at least a High School diploma (i.e., 12 years of schooling) and 12 years of relevant experience, the following can be done: You can have the experience evaluated to the equivalent of 4 years of academic education (using the 3 for 1 formula). Added to the 12 years of schooling, it makes a total of 16 years of academic education, equivalent to a US bachelor’s degree. This makes the foreign national eligible for an H1B visa.

 

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3) Employer’s Responsibilities


Who can be an H1B Employer?

The H1B Employer has to be US person or entity, i.e., an individual, partnership, corporation, or an organization that qualifies as such an entity.

Can a company located in another country file for a US H-1B visa?

No. Only US employers (including branches/subsidiaries, etc. of an overseas company) can file H1B Petitions.

Can a start up software consulting company file an H-1B Petition?

Yes, but there could be questions from USCIS about the ability to pay, bona fides of the job opportunity, etc. Consultation with an immigration attorney is recommended.

Does an employer have to show a profit to file for a new H1B?

Not necessarily, as the USCIS looks at the totality of evidence as to the viability of the petitioner, existence of the job opportunity, ability to pay issues, etc. It is advisable to consult an immigration attorney.

What kind of financial documents does the USCIS usually ask for by way of Requests for Evidence (RFEs)?

Business Plan, audited financial statements such as Balance Sheet and Profit & Loss Accounts; payroll records, bank statements, client contracts, purchase orders, business licenses, tax returns, etc.

After an H-1B person starts working for an employer, what are the ongoing responsibilities of the employer?

The employer should maintain wage and hour records as well as information about the working conditions of its employees. Such information/documents should be maintained in the “public inspection file,” and should be provided to the Department of Labor (DOL) if requested. For failure to maintain this documentation, the employer can be subject to penalty and fines and could also be barred from filing nonimmigrant and immigrant petitions in the future.

How should an employer prepare the wage documentation?

The employer should preserve documentary evidence as to how a wage level was reached. This is easier if there is an official “wage scale” either as an official policy of the employer, or as part of a collective bargaining agreement. The factors that usually determine wage levels are job duties and job requirements (educational qualifications/experience and specialized knowledge). Though this information need not be submitted as part of the H1B Petition requirements, DOL can ask for this at any time.

What should we do to move an H1B Employee to a new location, i.e., to a location not mentioned on the original Labor Condition Application?

First of all, you should meet the prevailing wage requirement, i.e., be willing to pay wages equal to or higher than the prevailing wage at the new location. Then you should meet the posting requirements at the new place and file another LCA prior to moving the employee to the new location. Also you need to make necessary amendments to the public inspection file. Please seek the advice of an immigration lawyer on this.

What should the employer do if the H-1B employee is laid off?

If the layoff happens during the approved period of stay, the employer is liable to pay return transportation to the employee’s country of residence. We also recommend that you write to USCIS about the layoff and ask to revoke the H1B classification.

Should the employer pay for the return transportation of employees’ household goods?

No.

Should the employer pay for the return transportation of employees’ H4 dependents?

No.

Can we file an H-1B change of status petition on behalf of an alien who came in to the US illegally, i.e., without a visa?

No, you cannot file a change of status because the person does not have a “status” to change from. However, you can file an H1B petition for Consular processing, which means the person has to leave the US and get the visa stamped abroad. But departing the US may trigger 3/10 year bars, depending on how long the person stayed in the US illegally. It is important to discuss your options with an immigration attorney.

My employer has told me that they have to "bench" me because there is no work for me, and would pay me my living expenses only, i.e., not my full salary. What can I do about this?

The employer is required to pay you your wages as per the Labor Condition Application even if they have no work for you. You can report any violations to the USCIS or to the Department of Labor. More information is available at DOL web site.

 

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4) Wage Issues

What is “prevailing wage”? How is it determined?

The prevailing wage is the wage determined by the State Workforce Agency for a specific geographical location of employment. This can be determined in different ways. The easiest is to go to online wage library at www.flcdatacenter.com and get it if the job is listed there. Another method is to ask the State Workforce Agency for the prevailing wage by giving the job title, job duties, education/experience requirements, etc. Usually there is a form for this. Some states want this to be faxed, while some others accept the requests on line. The third option is to use wage surveys published in the preceding 24 months. The employer can also use a union contract negotiated by a bargaining representative. Yet another (and the most time-consuming) option is for the employer to have a custom wage survey commissioned.

How should an employer prepare the wage documentation?

The employer should preserve documentary evidence as to how a wage level was reached. This is easier if there is an official “wage scale” either as an official policy of the employer, or as part of a collective bargaining agreement. The factors that usually determine wage levels are job duties and job requirements (educational qualifications/experience and specialized knowledge). Though this information need not be submitted as part of the H1B Petition requirements, DOL can ask for this at any time.

I am in the US on H-1B status. But currently I am “on the bench”, i.e., I do not have a project nor I am getting paid the salary offered to me on the Petition. Is there a problem?

Yes, of course! When you are in the US on H-1B status, you should get paid the wages according to the H1B Petition. There is no such thing as bench time without pay. Even if your Employer does not have a project for you, they have to still pay you. Of course, you need not be paid if you are on unpaid vacation or sick leave. But there should be documentary evidence of such unpaid vacation or sick leave. Further, if you are available and willing to work for your Employer but your Employer refuses to give you a job or pay you the wages, you can report the matter to the USCIS or to the Department of Labor. Such evidence is also given weight in the absence of latest pay stubs needed when you attempt to transfer to another employer or change status.

Isn’t the Employer contractually bound to pay me for the entire three years once I take up the employment with them with a three-year H1B visa whether or not they have a job for me for three years?


No, they are not bound just because the H-1B is for three years. They can fire you any time. But, of course, they should comply with any obligations contractually agreed upon with you.

Can I still receive a salary in my home country when I am in the US on H1B visa and getting paid in the US?

The answer is yes from the immigration point of view. Make sure you comply with the tax laws.

 

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5) Consular Issues

We have an H1B approved for our prospective employee with Consular notification for Chennai, India, but we just found out that he is currently living and working in Singapore. Should we file anything with USCIS to have the Singapore Consulate notified?

First, you (and/or your prospective employee) should call the US Consulate in Singapore and ask them if they require a Consular notification from USCIS, or can he just apply with the original Approval Notice. If they insist on Consular notification, then you should file the form I-824, which could take a few months to adjudicate. The easier way obviously would be for your employee to go to Chennai and get the Visa stamped.

We have an employee whose H1B (Consular notification) starts on October 1st. But he has entered the US on H4 visa in July, as a dependent of his wife. Can he work for us starting on October 1st?

He can start working for you only after you get a change of status to H1B approved. Or he can leave the US and re-enter with the H1B stamp on his passport and then start working for you.

We have an H1B approved for a prospective employee who is currently in India. He has told me that he is not interested in joining our company on October 1st. Can we substitute someone else onto this H1B approval and get the visa for the new person to work for us?

No, this is not possible, unfortunately.

I have been in the US on F1. Now I have an H1B approval which has been issued without change of status. I want to go to the US Consulate in Mexico or Canada to get it stamped. If the visa is denied for any reason, will I be allowed to come back to the US?

Even if the Consulate denies your H1B visa petition, it is unlikely that they will cancel your F1 visa. Of course, you cannot enter the US without a valid visa.

I applied at the Consulate for an H1B visa, but my application is held under Section 221(g). What does this mean?

It is not a denial of the application for visa, but your case needs further administrative action. The Consulate may require additional documents which you can collect according to the instructions given on Form 221(g).

H1B approved with start date of October 1st. How soon can I apply for H1B visa at the Consulate? How soon can I enter the US?

You can apply as much as 60 days before October 1st and enter the US 10 days before October 1st.

Does the USCIS granting of an H1B visa guarantee that the foreign national will get the visa stamped at a US Consulate?

Not at all. The US Consulate can deny the visa to the beneficiary for a variety of reasons, such as his/her lack of qualifications/skills, employer’s lack of viability, lack of other relevant information/documents, etc.

My H-1B visa application was rejected at the US Consulate. I was told that they would inform the USCIS about it. What can my US Employer do in such a situation?

You have to wait for the Consulate to return the case to USCIS. The USCIS would either re-affirm the earlier decision or issue a notice of Intent to Deny to the employer (or attorney). The attorney/employer should respond to the Notice of Intent to Deny. Please remember that this whole process will take several months.

We lost the original H1B approval notice. Is it possible for our employee to apply for a visa abroad with a copy of the approval notice?


We would recommend that you apply for a duplicate approval notice. Then the person can try for a visa with an attorney-certified copy of the original approval notice and proof that a duplicate has been applied for. Some Consulates would accept these and issue the visa. It is definitely worth a try. If denied, then you have to wait for the duplicate approval notice.

My B-1 Visa Petition was rejected twice at a US Consulate in India in recent years. Now I have an H-1B visa approved for me. How would the previous rejections affect my H-1B Visa Application?

The previous B-1 visa rejections should be of no relevance (unless fraud was involved) as B-1 and H-1B standards are different.

Do I have to go to the US Consulate in my home country to get my H1 stamped?

No, you can go to any US Consulate that would accept your case.

 

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6) Changing Employers

What is H1B portability?

A foreign worker previously given an H-1B status can start working for a new H-1B employer as soon as such new Employer files an H-1B petition on his/her behalf, i.e., he/she does not have to wait for the Petition to be approved before starting to work for the new employer. But be mindful about the cap-exempt/cap-subject scenarios.

Are there any restrictions on portability?

The beneficiary should have been lawfully admitted into the US, should continue to be in legal status while the H-1B petition is filed, and there should not be any violations such as unlawful employment. The H-1B Petition should be “approvable” when filed, i.e., should be non-frivolous. And of course, be careful about the cap-subject/cap-exempt issues.

What is meant by “ non-frivolous”?

The petition must be approvable. In other words, all eligibility conditions must be met, such as, the alien must have been lawfully admitted to the US, must be currently in a legal nonimmigrant status, there should no unauthorized employment, the US employer must be a genuine, viable employer and there should be a legitimate job opportunity that meets the H-1B requirements. Further the alien should meet the educational requirements.

I have an H1B visa stamped in my passport for Company A, to start work on October 1st. But Company does not want me to come to the US as the job does not exist any more. Can I come to the US anyway, and have my H1B transferred to Company B right away?

In this situation, traveling to the US without the intent to work for the Petitioning employer is fraudulent.

How many times can I transfer my H1B status (i.e., change jobs) within these six years?

There is no limit.

Company B files for my H-1B transfer, and I start working for Company B. Meanwhile, my former employer Company A writes to USCIS to cancel my H-1B status. If such letter is received by USCIS before my H-1B transfer petition is approved, will that create a problem?

Not if Company B’s H1B Petition is non-frivolous and it was filed with USCIS when you were still employed by Company A.

I got H-1B approval starting October 1st based on my current employer’s petition (for whom I work on OPT). My OPT is valid until December. Can I take another job during the Summer to work for another employer? Does that affect my H-1B status? When should I take up my H-1B job?

You will be on OPT until October 1st, so you can work for any employer until October 1st. Your H1B kicks in on October 1st, and you should start working for the H-1B employer on that date. If you want to work for another employer concurrently, have the other employer file a concurrent H1B Petition (full time or part time).

Is it necessary to have the current H-1B documents in original to apply for a transfer of H1B by a new employer?

No. A photocopy of the current H1B approval notice should be enough. But of course, the transfer petition has to be filed with all the required documents.

Does the transfer to a new employer result in automatic cancellation of the previous H1B?

Not unless the Employer asks USCIS to cancel the H1B classification.

I have been on L1B visa for four years now. Company B is willing to apply for H-1B for me. How much time can I get on H1B?

The total period you can stay in the US on L-1/H-1B is six years combined. In other words, your L1 stay will count towards your six year limit. So if you have been in the US for four years on L-1B, you will get only two years on H-1B.

How can I change Employers? What if I do not have the latest pay stubs?

First of all, the Employer who seeks to transfer your visa, should have a valid, qualifying job for you. Secondly, as proof of your current legal H-1B status in the US, you need to have pay stubs from your current employer covering the at least the latest two months. If recent pay stubs are not available, and if the USCIS comes back asking for them, you need to explain why they are not available. Claims of unpaid vacations or sick leave, if any, should be substantiated with documentary evidence.

Employer B filed for my H-1B transfer while I was on valid H-1B working for Company A. Now my Company A’s H-1B has expired, and the H-1B transfer by Company B is denied. They are in the process of appealing the denial. Can I stay legally in the US while the appeal is pending?

No. The appeal process does not give you a legal status to stay in the US. We urge you to consult an immigration attorney about your options.

Is it necessary for an alien to have a passport that is valid for the entire duration of the H-1B while applying for an H1B transfer?

Not necessarily, but the alien should get the passport renewed before it expires. USCIS insists that the alien should have a passport valid for the entire duration of the stay, but not necessarily for the entire duration of the requested validity period when filing the petition.

Can a Company apply for H1B visa for less duration, say, eighteen months?

Yes, H1B can be applied for any duration up to three years.

I have been working for Company A on H1-B. Recently, I moved to Company B with their H1-B. Can I go back to Company A later if that H1-B is still valid?

Yes, but you should consult with an immigration attorney as there could be other issues involved.

I am working for Company A. Company B has filed for my H1B transfer, which has been approved. Now I have changed my mind, and would continue with Company A. Can I do this?

Yes, you can continue working for Company A through the validity of your H1B status.

I am in the US working for my sponsoring H-1B employer. The visa stamp on my passport is about to expire and my employer has filed an H-1B extension petition. Do I need to get the new H-1B approval stamped on my passport to continue working?

No, you need not. You can continue working for the same H1B employer without having the new H1B visa stamped on your passport. But if you need to travel outside the US, you must have the new H1B visa stamped on your passport before you can re-enter the US.

I arrived in the US to work for Company A, and after working for them for a few months, moved to Company B. Company B's H1B visa is not stamped on my passport, and the earlier stamp is valid for another two years. Can I travel out of the US and return with this stamp, or do I need to get my second H1B visa stamped before I can return to the US?

You may re-enter the US using the existing valid H-1B visa stamp. But be sure to carry the new H-1B approval notice (from Company B) and also make sure that the new I-94 that you get when you enter the US has the new validity date, i.e., the validity date of your Company B's H-1B approval.

I have an H1B stamp on my passport based on a Petition filed by Company A. But I have never traveled to the US using this visa. Now Company B is willing to sponsor me for H1B visa. Can I travel to the US using the current visa and have Company B file for a transfer while I am in the US? (I do not intend to work for Company A).

No. You need to have Company B get their H1B Petition approved, and then apply for a new H1B visa at the Consulate before you can travel to the US to work for Company B.

Currently I am employed by Company A. Company B is willing to transfer my H1B. Do I need to tell Company A about it or need their permission to transfer my H1B?

You do not need any permission. But whether or not you inform them is up to you, and subject to the terms and conditions of your employment with Company A.

 

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7) Six-Year Limit And Beyond

How long is the H1B visa granted for?

Initially the duration is three years, and the status can be renewed for another three years. After the six year limit, the status can be extended as follows: (i) If a labor certification application has been filed on behalf of the alien and is pending for at least 365 days as of the 6th year expiration date, one year extension will be granted; and (ii) if an I-140 Immigrant Visa Petition has been approved on behalf of the alien, then a three year extension will be granted.

How long can I stay out of the US on H1B and still be able to return?

You can return to the US any time within the validity of the H1B visa, provided the job is still open and available to you.

My employer has just got my 7th year extension approved. I am in the third month of the seventh year. I would like to move to another employer now, can the new employer file for the rest of the seventh year, and the eighth year as well?

No, extensions of 7th year and beyond can be applied only one year at a time, unless you have an I140 Petition approved, in which case the extension would be for three years.

We filed the LCA for three years, but applied for the 7th year extension which took only one year of the LCA validity. Can we use the “unused” 2 years to apply for the 8th year extension?

Yes, you can.


Does time spent on H4 count towards H1B?

No. The law changed recently.

I have a three-year H1B extension (after seven years) filed by Company B based on an I140 approval by Company A. I understand that Company A is about to revoke my I140. Will it affect my new 3-year H1B status?

There is no clear law on this. But as a practical matter it is unlikely that USCIS will go back and revoke the H1B extension.

I have been in H-1B status for five years. Then I changed to F-1 and have been in the US on F1 for two years. Can I get a full six years of H-1B term?

No, you need to be physically out of the US for a period of one year for the H1B clock to reset again.

I am in my sixth year of H1B. I do not have a Labor Cert or Immigrant Visa Petition pending. But my wife has a Labor Certification pending for more than one year. Can I extend my H-1B into seventh year based on my wife’s Labor Cert?

No, this is not possible. You should have a Labor Certification pending to get seventh year H1B extension.

I am on my seventh year of H1B based on a pending Labor Certification. What happens if the Labor Certification is denied? Will it automatically void the remainder of my H1B validity?

There is no clear guidance on this. We have not yet heard USCIS canceling the remainder of the H1B. So it appears that you can continue working using your H1B until the current expiry date.

Do we need to wait for the Labor Certification pending for 365 days before we can file the seventh year H-1B extension petition?

No, you need not wait to file. But on the expiry of the sixth year, the Labor Certification should be pending for at least 365 days. That is, you can file any time within six months before the expiry of the current H1B.

I am in my 6th year on H1-B visa, working for Company A. Company A has filed a Labor Certification for me and it has been pending for over a year. Now I want to join Company B. Can Company B get the 7th year extension for me based on my pending Labor Certification application filed by Company A? Can I start working for Company B immediately after the H1-B Petition is filed? Does Company B need to file my Labor Certification later?

Yes, to the first two questions. As regards the last part of your questions, for your next H1B extension(s), i.e., 8th year and beyond, if there is a likelihood of Company A withdrawing your Labor Certification, then Company B needs to file a Labor Certification before your 6th year runs out so that it would be pending for one year at the end of your 7th year of H1B stay.

 

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8) Concurrent and Part-Time H-1Bs

Is it legal to work for more than one employer on H-1B status simultaneously?

Yes, if you have gotten the second (or later) H1Bs with concurrent employment.

I work for a cap-exempt Employer and I would like to do part-time work for a cap-subject Employer. Can such an Employer file for a concurrent H1B for me?

Because your employer is cap-exempt, it does not appear that you have been counted against the cap. You need to be counted against the cap to enable a cap-subject employer to file a concurrent part-time H1B for you. So you need to wait until April 1st next year. However, if you wanted to do part-time and/or concurrent work for another cap-exempt employer, the Petition can be filed now.

We are about to file an H1B Amendment Petition to change an employee from full time to part-time. Can he start working right away after the Petition is filed?

There is no clear guidance on this in the portability rules. However, it seems possible. The safest option, however, would be to do Premium Processing of the amendment petition and get the approval before you change from full time to part time.

 

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9) Processing Green Cards

I work for Company A on H-1B classification. Can company B start my Green Card processing?

Yes. Green Card processing is for future employment. Until you get your work permit and use it, or get the Green Card, you will continue to be on H-1B status, and in fact, should maintain H-1B status to continue working until you get your work permit or Green Card.

I am on H-1B and will get married to my Green Card holder fiancee soon. Does she have to file a family-based petition for me right away, or can we wait until she gets citizenship?

You can wait until she gets citizenship. Or, she can file now as a Green Card holder, and later, upgrade the petition to immediate relative category when she becomes a citizen.

How does the “immigrant intent” affect my H1B status?

H-1B visas are “dual intent”, meaning there is no restriction in your having the “intent” to immigrate to the US. You can pursue a “Green Card” either through family relationship or through employment while on H-1B status.

I am on H-1B status and just got married to a Green Card holder. My wife is in the process of filing an Alien Relative petition for me. Does this affect my H-1B status?

No. In fact you should be on H-1B status (or another valid status) in the US until you become eligible for an immigrant visa. As you are probably aware, there is a long waiting period of Alien Relative Petitions filed by Legal Permanent Residents (Green Card holders). You can either wait out this period, or have your spouse become a US citizen when she is eligible, and have the Petition upgraded.

I am on H1B and married to a Green Card holder, can I still pursue an employment-based Green Card?

Yes.

 

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10) Termination of Employment

If the H-1B employee leaves my company, do I have to cancel his H-1B visa?

Yes, if you and/or your employee does not want to resume employment with you at a future date. If there is no prospect of your employee coming back, our recommendation is to cancel the H-1B right away to avoid future claims of back-pay, etc.

How much grace period do I have to find another job once my H-1B employer lays me off?

There is no grace period. You are out of status when you stop working.

Will the USCIS still approve the H1B transfer petition if it is filed after, say, one week after the above layoff?

We have seen USCIS approving transfer petitions filed fairly soon after the layoff. Even if USCIS denies the extension of status part, they can still approve the H1B transfer, but you will have to apply at a US Consulate and get the visa before you can return to the US and take up the new job.

As an employer, is it safe to hire such a person who has been laid off two weeks ago, and put him/her on payroll as soon we get the H-1B Receipt Notice? If not, any other recommendations?

No, it is not advisable to put such a person on the payroll just with the H1B receipt notice. Our recommendation in such a situation is to go with Premium Processing so that you can get an answer from USICS in three weeks.

I am about to get laid off from my H1B job. What are my options to stay in the US?

You should apply for Change of Status, such as to B-1 or B-2 or another nonimmigrant visa category. Talk to an immigration attorney right away.

I have been in the US working on H1B visa, but I had to leave the US for India and could not return for a few months because of family issues. Now my Employer is asking me not to come back and have told me that they have cancelled the H-1B visa. Can I still travel to the US using the same H-1B stamp? Is there a way to find out if the H-1B is really cancelled?

No, it would be illegal to travel to the US unless your employer wants you to come back. If your employer has requested revocation of your H1B status, such revocation is in effect the day USCIS receives your employer’s request. You may try calling the USCIS, but it is unlikely that they will give any information to you, the employee. USCIS gives H1B information only to employers or their authorized representatives.

I am on H-1B and about to be laid off. Can I collect unemployment?

No, you are not eligible to collect unemployment.

Can an H1B visa holder stay in the US for ten days after the expiry of the H1B visa (i.e., the date on the I94 card)?

No. The person will be accruing unlawful presence. However, if the I94 card is issued for ten days beyond the H-1B expiry date, the person can stay for those ten days.

I am about to be laid off. Can I change to B-2 status and, after having a new employer file an H1B petition, start working for the new employer?

Theoretically, this is possible. But as a practical matter, please consult with an immigration lawyer before adopting this path.

Is the employer obligated to buy my H4 dependents return tickets when my employment is terminated?

No.

When I get terminated, other than the airline ticket back home, what else is my employer obligated to pay me?

Nothing other than what they are contractually obligated to pay you.

What if they refuse to pay the air ticket or salary due?

You can complain to the Department or Labor and/or to the USCIS.

Can I be deported from the US if I lose my H-1B job and stay in the US without changing into another status?

Technically, yes. But as a practical matter, it would be unlikely to happen. Of course, this should not be taken as a guarantee that nothing will happen. Our advice is never to accrue unlawful presence in the US.

My employer insists on keeping all my documents. What documents belong to me?

Your own documents, such as degree/diploma, mark sheets/transcripts, passport, I-94, etc. belong to you.

If the Employer refuses to give me my document, what is my recourse?

You can complain to the local police.

 

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11) Status Issues

When am I considered on H1B status – when the visa is stamped or when I enter the US?

Your H1B clock starts on your entry into the US.

What is the difference between H1B Visa and H1B status? What determines the legal status in the US?

A visa is a travel document that one needs to enter the US. It can be issued only by the State Department through a Consulate or Embassy abroad to a foreign national to seek entry into the US. H-1B status is issued by the USCIS upon entry into the US with an H-1B visa, or to foreign nationals already physically present in the US in a legal status. If the visa expires and the holder has the H1B extended (with a replacement I94 with a new validity date), a new visa has to be obtained only if the person needs to travel. The legal status in the US is determined by the date on the I94 card, issued either at the port of entry or along with the H1B extension approval document. But you should make sure that the I94 validity date is always current.

 

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12) Travel

I have an H-1B visa stamped on my passport, but never traveled to the US. Now my current employer wants me to get a B1 visa to travel to the US. If I get a B1 visa, what will happen to my H1B visa? If my current H-1B visa is canceled, is that a bar to get future H-1B visa?

When the Consulate grants you the B-1 visa, they will cancel your H-1B visa. But such cancellation is not a bar to getting future H-1B visas.

Is there any restriction as to how many times I can travel overseas while on H1B status?

There are no restrictions on travel while on H1B visa. But the Visa stamp on your passport should always be valid when you return to the US.

Can I travel when an H-1B transfer petition is pending?

Our advice is not to travel while the H-1B transfer petition is pending. In the past, we had instances of USCIS coming back and asking us to prove that the beneficiary is still in the US when they adjudicate the transfer of H1B status.

Is there a requirement that I need to depart for the US from the same country as the location of the Consulate where the H-1B visa was stamped?

No. You can travel from any country.

H-1B approved with change of status effective from October 1st. Current F-1 visa stamp expires in mid-September, but OPT valid until mid-December. Can I travel out of the country in August and come back without having to get the H1B stamped?

In this scenario, the better option is to get the H-1B stamped and come back on or after September 20th, i.e., not more than 10 days before the start of H-1B.

 

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13) Dependents

What are the documents I need to send from the US for my wife to get H4 visa?

As a minimum, copy of your H-1B Visa/Status, your pay stubs for at least two months, and a letter from your employer giving details of your employment. Your wife should apply at the Consulate with her passport, copy of marriage certificate, appropriate fees, etc.

I am on H-1B and my husband on H-4. We are on our way to getting a divorce. Do I need to inform USICS about the divorce?

Yes, you should. Your husband will lose his H4 status as soon as the divorce is final.

I am presently in the US on H1B visa, and will be getting married in my home country soon. Does my wife have to change her last name in the passport before applying for the H4? What is the difference between having the husband’s name endorsed in the passport and changing the last name?

It is not necessary to change the last name to get the H4 visa. Endorsing in the passport only entails making a notation about the marriage and spouse’s name.

My wife is on H-4 visa. A company is about to file an H-1B Petition for her. When can she start working for this employer?

Since she is on H4 visa, she needs to wait for the approval of the H-1B petition to start working. If the employer is not cap-exempt, the earliest start date she can get is October 1st anyway.

I am in the US on H1-B visa and my husband is on H-4 visa. When my company files my H1-B extension petition, will my husband be automatically included for his H4 extension as well?

Not unless you ask your employer to do so. An H-1B extension petition addresses only the person on H-1B status. For extension of H4 classification, a separate application has to be filed. You should bring this to the attention of your employer and/or the attorney handling the matter.

Company B is about to file for my H1B transfer, and I am eligible for another full three year term. My dependents have their H4 valid for another eighteen months. Do I need to file for their H4 extensions also right away?

No need to do that. Your dependents' H4 status is not employer-specific. They will continue to be on H4 so long as you are on H1B status and their H4 is valid. But make sure you file H4 extension petitions for them before their H4 status expires.

I am on H1B status in the US. My parents overseas are really dependent on me, as I am the only son. Is there any way I can get H-4 visas for them?

No. H-4 visas are granted only to spouse, and children below 21 years of age.

I am on F-1 status and my spouse is on F-2. When I change my status to H1B, is it necessary to change my spouse's status to H4?

Yes, absolutely, if your spouse is physically present in the US.

What if my wife has an F-2 visa stamp on her passport and she is in our home country at the time my H1B is approved. Can she travel to the US using her F2 visa?

It depends when your H1B validity starts. She can travel back to the US on F-2 during the period you are on F-1, i.e., before the H1B validity takes effect. After arriving in the US, she should file a petition to change her status to H4.

Do our children, who are on H4 status, need F-1 visas to go to school?

No, they can go to school full time while on H4 status. To be able to work part-time while going to school/college, they should change status to F1.

 

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14) Hiring a Lawyer

Is it necessary to hire an attorney to file an H-1B Petition?

There is no legal requirement to have an attorney. Employers can do it themselves, making sure all the rules and procedures are complied with. Please note, nowadays USCIS comes back with Requests for Evidence (RFEs) more often. Also, it is critical that the employer maintains the ‘public inspection file’ properly. Further, keep in mind the recent advent of the so-called H1B lottery. If the Employer misses the filing window and/or the petition is returned as incomplete, then the Employer has to wait for another year.


Do I have to hire a lawyer from the same area the employer is in?

No. An attorney can file petitions on behalf of clients all over the US. Most of the work nowadays is done by phone/fax/internet/courier services.

 

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15) Miscellaneous Questions

What is premium processing?

It is the process under which USCIS guarantees a decision in 15 business days. The fee for the same is $1225.

Can we ask for a start date later than October 1st for a new H-1B?

Technically yes, but practically not possible in the current scenario. The H1B Petition can be filed only six months ahead of start date, i.e., the earliest filing date can be April 1st for the start date of October 1st. As the H1B numbers get capped on the first day (or soon thereafter) of the filing period, you cannot practically apply with a start date later than October 1st.

I am currently not in the US, and want to apply for an H-1B Visa. How is this possible?

You need a US employer to file for your H-1B visa. The employer files the Petition with the USCIS. When the petition is approved, a notification is sent to the US Consulate within whose jurisdiction you live. You should apply for the visa at the Consulate, and get the visa to travel to the US.

Is there a way I can apply for the H1B Visa myself, i.e., without an employer.

No. Please see the above answer.

I understand that new H1B Petitions can be filed on April 1st. Can you suggest a time-line of action to interact with a lawyer so that we (my employer and I) are ready to file the Petition on April 1st?

The following is a suggested time-line: Hire a lawyer and give him/her all the information and documents before the end of February. The lawyer prepares the documents for signature and sends them to the Employer by the middle of March. Your Employer signs and returns the documents (along with all additional documents requested by the lawyer) so that the lawyer receives them latest by the 25th of March. The lawyer sends out the Petition to USCIS so as to reach them on April 1st.

My employer has been merged with another Company. How does this affect my H1B status?

Merger of your employer with another company does not usually affect your H1B status. But any change in the conditions of your employment may require an amendment petition. It is recommended to get professional legal advice in such situations.

How to get the spelling of my name corrected on the H-1B approval?

If it is a USCIS error, your employer or attorney can either call the USCIS or write to USCIS to get it corrected. But if the error was made on the Petition itself, then an amendment petition (with appropriate fees) needs to be filed.

My H-1B extension is pending and the original H-1B validity has expired. I want to sponsor my parents for a visitors’ visa. Can I give H-1B extension receipt notice along with the old H-1B documents to prove my status? Any other options available?

As far as we know, there are no specific rules about this. You can try with your extension receipt. If the Consulate does not accept it, then you can upgrade your existing extension Petition to Premium Processing and get an answer within 15 business days.

We lost the original H1B approval notice. Is it possible for our employee to apply for a visa abroad with a copy of the approval notice?

We would recommend that you file the application for a duplicate. Then of course the person can try for a visa with an attorney-certified copy of the original approval notice and proof that a duplicate has been applied for. Some Consulates would accept these and issue the visa. It is definitely worth a try. If denied, then you have to wait for the duplicate approval notice.

I am the citizen of a Western European country that has a Visa Waiver Program with the US. I have recently gotten my H-1B approval with change of status here in the US. Can I travel overseas and return with a Visa Waiver and continue working on H-1B?

When you re-enter US with Visa waiver, you will not have work authorization because you are not on H-1B “status”. You should get your H-1B visa stamped on your passport before you return and enter on H-1B status.

I am a physician but I do not have the state license because I won’t get it without a Social Security Number. I have a letter affirming that I am otherwise eligible. What are the chances that USICS will approve the H1B?

If Social Security Number is the only issue, USCIS usually approves the H1B for one year.

If the change of status is denied, does that also mean that my H1B Petition is denied?

Not necessarily. The USCIS may still approve the H1B Petition, but with Consular notification, i.e., you will need to depart the US, get the visa stamped, and return to the US, to be able to work for the H1B Employer.

How does vacation, sick leave, or maternity leave affect my H1-B status?

These do not affect your H-1B status.

Can I start my own company while I am in the US on H1B status?

Yes, you can. But your involvement should be "passive", i.e. you cannot "work" for the Company. You can hire others to work for your Company. Your income (profit) will be considered passive income like any other "investment" income.

My spouse and I have just received our H4/H1B approvals with change of status. When do we need to get them stamped on our passport?

You need not get the new approvals stamped on your passport if you want to continue staying in the US without traveling abroad. But if you have to travel out of the US after the expiration of the currently stamped visa, then you need visas with new validity periods stamped on your passport before you can re-enter the US.

I have received my H1B extension approval. But my current H1B stamp on my passport is still valid. Can I leave and re-enter the US during the validity of my current visa, i.e., without having to get the new one stamped on my passport?

Yes, but be sure to carry the new Approval Notice so that you get that validity date on your I-94 when you re-enter the US.

Can I get the visa revalidation stamp on my passport without leaving the US?

No. In July 2004, State Department has stopped revalidating H1B/H4 visas in the US. You have to go to a US Consulate to get this done.

 

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