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H1B Visa FAQ's
I'm a Foreign national, can I apply and file for my own H1B visa ?
Unfortunately Not. US Immigration Laws and Regulations require that H1B visa applications can only be filed by US Corporations. Obtaining any type of US Work visa / permit requires a US Sponsoring Company to file the visa petition on behalf of the Foreign worker they want to employ.
I live outside the USA, can I still get an H1B visa ?
Yes. The H1B visa program is designed for and available to Foreign nationals from all over the world who want to emigrate to the USA to live and work.
Do I need to have any qualification requirements to obtain an H1B visa ?
Yes. Qualifying for the H1B visa program requires meeting the requirements set by the USCIS (US Government) relating to either Work Experience or Higher Education. To have an H1B visa approved and issued the applicant must provide relevant documentation at the time of filing showing that the qualification requirements have been met. More details about the H1B Visa Requirements for Qualification
Can I apply for any type of USA job - and still get issued an H1B visa ?
No. To get issued an H1B visa the type of job must be directly related to either the education or the work experience that qualifies the applicant for the H1B visa program. For example: if you have a qualifying degree or work experience in 'X' then the type of job required to get issued an H1B visa must be 'X' related (to get issued an H1B visa for any other type of job / profession would require having multiple H1B qualifications for multiple professions).
Can I apply for any level of USA job in my H1B qualifying profession - and still get issued an H1B visa ?
No. The level of job required to get issued an H1B visa must require at least the same level of education or work experience that qualifies the applicant for the H1B visa program. For example: if you qualify for a job by having a degree, the job level required to get issued an H1B visa must also require a degree.
Do I need to have studied in the USA to be able to get an H1B Visa ?
No. As mentioned above the H1B program is made available and provided to help people from all over the world live and work in the USA. If you studied and obtained a degree from a University or College in your own Country of residence, you still qualify for and can get issued an H1B work visa
Do I need to have USA work experience to be able to get an H1B visa ?
No. You do not need to have any US work experience to qualify for and be issued an H1B visa
How long does an H1B visa last for ?
Under current law, you can be in H1B status for a maximum period of six (6) years at a time. After that time you must remain outside the USA for one year before another H1B petition can be approved. Certain people working on Defense Department projects may remain in H1B status for up to ten (10) years.
In addition, certain people may obtain an extension of H1B status beyond the 6 year maximum period, when:
1) 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
2) 365 days or more have passed since the filing of an EB immigrant petition.
Who can an H1B visa holder work for in the USA ?
H1B holders can only work for the petitioning US employer (sponsor company) and only in the H1B activities (job duties) described in the visa petition that is filed by the H1B sponsoring company. The H1B sponsoring company (US employer) may place the H1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H1B holders may work for more than one US employer, but must have a Form I-129 petition approved by each employer.
What if the foreign nationals circumstances change ?
As long as the foreign national continues to provide HB services for a US employer, most changes will not mean that an foreign national is out of status. A foreign national may change H1B employers without affecting status, but the new H1B employer must file a new Form I-129 petition for the foreign national before he or she begins working for the new employer. The merger or sale of an H1B employers business will not affect the foreign nationals status in many instances. However, if the change means that the foreign national is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.
Must an H1B employee be working at all times ?
As long as the H1B employer employee relationship
exists, an H1B employee is still in status. An H1B employee may work in full or part-time employment and remain in status. An H1B employee may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
Can an H1B visa holder travel outside the USA ?
Yes. An H1B visa allows the holder to re-enter the USA during the validity period of the visa and approved petition.
Can an H1B visa holder intend to immigrate permanently to the USA ?
Yes. An H1B visa is a "dual intent" visa and therefore the holder can obtain a Green Card and Lawful Permanent Resident in the United States.
What is the H1B cap (visa quota) ?
The H1B cap is an annual limitation on the number of new visas available for during a Fiscal year. The H1B cap is currently 65,000 + an additional 20,000 visas available to persons who have earned masters or higher degrees from U.S. institutions of higher education.
When can H1B visa applications be filed and how does the timing work ?
The H1B cap numbers become available at the beginning of each fiscal year. The government's fiscal year currently starts on October 1st. However, cases can be filed six months in advance of the requested start date. Therefore, cases can be filed on the preceding April 1st. Then the USCIS continues to accept cap cases for the current fiscal year until the quota is reached.
Can I begin working for my US employer once I have filed the H1B application ?
If it is a new (first time application) - NO. With new H1B applications the visa must be filed, processed and approved by the USCIS before the applicant can start work in the USA for the US employer (sponsor company)
However, if it is a 'Transfer' of a current 'valid' H1B visa to a new US employer - YES. If one is currently in H1B status with another company, then he/she can legally start working for the new employer upon USCIS receipt of the H1B petition.
If the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), one may continue to work for the employer until the expiration date on the I-94 card / H1B approval notice. If the H1B petition is approved without an I-94 card, one may have to immediately stop working, depart the United States, apply for an H1B visa at a U.S. consulate in the home country, and finally be readmitted in H1B status before being authorized to continue working for the employer.
Why does an H1B transfer take so long ? Is there a quicker way for transferring an H1B ?
The process for filing an H1B "transfer" petition is the same as the process for filing a new H1B visa petition, since each H1B petition is employer specific. Therefore, it generally takes the same amount of time to process the H1B petition whether transeferring or new application.
The main difference between an H1B transfer and a new H1B petition is that one who already holds an H1B status is generally not subject to the H1B cap and does not need to wait until October 1st to start working, if the H1B quota has been used up for that fiscal year.
USCIS offers a Premium Processing Service for an additional visa filing fee. With H1B Premium Processing, USCIS will take action on a filed petition within fifteen (15) days of its receipt with the Service Center.
My friend and I both filed our H1B visa petition at the same time, but theirs is already approved. Why isn't mine approved yet?
Each USCIS service center and each USCIS officer has a different caseload and each one takes a different amount of time to process cases. Unfortunately, there is nothing to ensure that a case will be processed in the same amount of time as other cases.
In addition, one can upgrade their H1B petition to Premium Processing with USCIS at any time while it is pending with the USCIS if quicker processing is required.
Once I get an H1B visa, can I work for my employer in any state or different locations in the USA ?
The USCIS has taken the position that a person is only authorized to work at the specific location or in the metropolitan area listed on the Labor Condition Application (LCA) certified with the U.S. Department of Labor (DOL), and filed with the H1B petition. Generally, there must be a certified LCA for each location at which one will work, attesting that the H1B employer will comply with the H1B prevailing wage requirement for that local area.
There is a discrepancy between the DOL regulations and USCIS regulations with regard to an H1B employee's change in work sites. One requires an amendment to the H1B visa that includes certification of the new location and the other provides that certifying the LCA prior to the move is sufficient (i.e. an amended petition is not necessary). As this discrepancy creates a gray area of law, it is best to consult with an experienced US immigration attorney prior to working at a location not previously certified in the LCA or listed in the approved H1B petition in order to determine if one should file an H1B visa amendment with the USCIS.
I was in H1B status and changed to a different visa status. I am now ready to work in H1B status again. Do I get six more years in H1B status ?
No. The six-year clock in H1B status is not reset unless one leaves the United States for at least one year. As a result, the time previously spent in H1B status will be counted against the six-year H1B visa limit. Individuals who previously held H1B status in the last six years, and subsequently left the U.S. for at least a year, generally have the option of either using the time remaining in H1B status without being subject to the cap or applying for another six years of H1B employment subject to the cap.
I'm in F1 status and have a practical training work permit. If my work permit expires, do I have to stop working until the H1B approval comes through ?
Yes. One must stop working upon the expiration of the EAD or the OPT if an H1B cap case petition was not filed requesting a change of status prior to the expiration of the completion of the school program or end of optional practical training (as indicated on ones employment authorization card). If a petition for a change of status is timely filed for an October 1st start date, then one may continue working between the expiration of the employment authorization and start of the H1B status (October 1st). If the petition is denied then one will no longer be eligible to remain and work in the U.S. pursuant to cap gap.
In general, one will not receive a new I-20 or be able to renew their employment authorization card. One should, however, keep their schools designated official updated as to the status of the cap case so that the SEVIS records can be properly maintained.
If an H1B petition requesting a change of status is filed within the 60 day grace period that follows the conclusion of authorized employment (OPT) or the F1 academic program, then one may legally remain in the U.S. until the start of the H1B but will not have employment authorization. The individual will have to depart the U.S. if the H1B petition is denied.
If one is unable to file the H1B cap case and request a change of status petition prior to the conclusion of their F1 status or 60 day grace period, one should try to maintain status during this time, by enrolling in another program or changing to another nonimmigrant category, such as H4) in order to remain in the U.S. In these circumstances the petition may need to be prepared for consular processing and one should depart the US prior to the expiration of one's status. Upon approval, the US consulate abroad will be notified where one may apply for an H1B visa for entry into the U.S. in H1B status. If both one's petition and change-of-status request are approved (from F1 to H1B), then the approval notice should have an I-94 card attached at the bottom. View More Information on F1 to H1B Visa and OPT
Why do US employers hire and sponsor H1B workers every year ?
There are a number of reasons why many US employers want to hire foreign national workers on H1B visas each year. A few of the main reasons include
: to help maintain their Global competitive advantage by hiring highly skilled / highly educated 'specialty profession' workers, and/or to bring cultural diversity into their US workplace, and/or for the innovative and strong work ethics that International workers typically possess, and/or because of the extra level of committment they typically get from people that have relocated to start a new life in the USA, and/or for language skills and the ability to communicate more effectively in a Global work environment. H1B workers also contribute highly to the US economy in numerous ways, help fill labor shortages in many 'highly skilled' professions and have been instrumental in contributing to the success of many of Americas largest and most prestigious companies.
The fact is: for various reasons, every year thousands of US employers recruit, hire and sponsor for H1B visas. To learn more about why US employers want and need highly skilled and educated H1B workers - click here
My spouse is in H4 visa status and was offered a job. Can he/she start work ?
No. H4 is a non-working status. It allows the spouse to live in the USA but not work.
In order to be legally authorized to work in the U.S., one who is in H4 status must have an employer file an H1B petition or petition for another working status (other working category). The petition must request a change of status and the spouse must meet all of the H1B requirements to change or transfer from H4 to H1B status. Once the H1B petition is approved, with the change of status (I-94 card attached), the spouses work authorization begins on the date on the approved petition. If the petition is approved but change of status is not approved (not issued the I-94 card), then one will need to travel to a U.S. Consulate abroad to obtain an H1B visa stamping before returning to the U.S to work pursuant to the H1B approval.
Under AC21, there may be circumstances in which a person in H4 status, who was previously on H1B, may be allowed to work upon USCIS receipt of the H1B petition.
I held H1B status and my spouse H4 status, but we did not know we had to apply separately to extend her H4 visa status. He/she has been out of status. What can I do ?
In this situation, one should contact an experienced U.S. immigration attorney immediately. This is a very difficult situation and the assistance of a knowledgeable professional will be required to develop a plan of action and help one to understand the risks and issues involved with each option. There is a strong likelihood that the 3-year or 10-year bar could apply against the spouse for failure to maintain lawful status if it goes beyond 180 days out of status. At the time of filing the H1B extension, many people assume that all dependents are automatically included. This is not the case.
My spouse and I both hold H1B status. I want to change my status to H4. Can I do this ?
Yes. To do this one needs to file an application with the USCIS to change status from H1B to H4 visa. In doing so, one must establish that both the primary H1B and the spouse are maintaining current legal status in order for the USCIS to approve the change of status. It is safest for one to continue working until the application is approved, although upon filing the H4 application for change of status, one generally is allowed to stop working.
I have an current and valid H1B visa. Can I start my own US company ?
If one is in H1B visa status and they wish to start and work for their own company a new H1B petition must be filed. The USCIS issued a memorandum back in January 2010 in which USCIS takes the approach that in such a case, when one self-petitions, the H1B application may not be successful because the petition may not be able to establish that the requisite employer / employee relationship exists. For immigration purposes, the employer / employee relationship must be present and this often may be difficult to establish in a closely-held, corporate entity. Other legal issues, as well as many practical business matters, may create obstacles, as well.
Please note that one may be able to passively invest without filing an H1B petition. Please be sure to consult with a qualified immigration attorney before taking any steps in starting ones own company to ensure that you are not engaged in unauthorized employment.
I'm currently transferring my H1B visa to a new sponsor company. I want to travel to my home country while it's being filed. Is it legal for me to leave ?
Generally yes, this may be possible. The timing of such a trip can complicate the situation. Although there have been several changes in the Legacy USCIS's interpretations affecting those who travel abroad while a petition is pending, the safest option is to avoid international travel unless one has received the new H1B approval.
I have an H1B visa but want to file another H1B application with another H1B sponsoring company, but I want to wait before I start work. Can I do this ?
Yes. There is no obligation to begin work immediately. One must maintain lawful status by working for one of the H1B companies that has an approval for that individual. There is nothing to prevent one from waiting to begin work, especially if there is a project to finish. As long as the prior H1B employer has not revoked the H1B petition with the USCIS, or the petition has not expired, it still is legal to be working for the prior H1B sponsor company.
My H1B employer wants me to pay all the USCIS fees for filing my H1B visa petition. Is this allowed ?
No. The employer must pay the training fee for the petition, if applicable, and one should not enter into a reimbursement agreement with the employer. The employer must also pay the Fraud Fee, if applicable, and it is recommended that the employer also pay the base filing fee of $325. Either the employee or the employer may pay the $1,225 optional premium processing fee.
I am graduating from a master's program in the U.S. this year. Can I apply for the ADE quota when filing my H1B application?
This depends. If one would have completed all the requirements for the degree at the time of filing (April 1st), then he/she may apply for the ADE cap. It is not necessary to have the physical degree/diploma in one's possession. However, a letter should be submitted from the university stating that the degree has effectively been awarded and the diploma will be sent or presented at a later date. One should not apply for the masters' cap if the degree requirements will not be completely fulfilled by April 1st.
How do I find an H1B Sponsorship job with a US Company that will file an H1B visa for me ?
The first and most important (and challenging) step of the process to obtain an H1B visa, is to find and secure an "H1B Sponsorship Employment Offer".
An H1B Sponsorship Employment Offer letter from a US employer is mandatory to file for an H1B visa application
There are many factors involved in obtaining an H1B visa sponsorship job offer, and successfully navigating the H1B visa process, procedures and laws. It's not easy and many Foreign nationals struggle and have a hard time achieving this part of the process. However, there are many proven methods, tools, resources and strategies you can take advantage of to help you, and, when approached and conducted in the right way, thousands of Foreign workers succeed every year
If you require professional assistance to obtain an H1B sponsorship job offer in the USA - Click Here
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