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H-1B Visa

H-1B Visa Overview

What is H-1B visa? 

U.S. companies use H-1B visa to employ foreign Professional and highly skilled workers in various jobs such as software developers, engineers, doctors, physical therapists, hotel managers, accountants, financial and management analysts just to name a few. 

65,000 H-1B visas are available per year. An additional 20,000 H-1B visas are also available for professional workers who obtained a Master's or higher degree from a public or non profit private university.  More people apply H-1B visas each year than the available visa numbers, the USCIS starts to take basic digital application in early March and runs a lottery by end of March each year. Depending on the volume of application received, the selection rate of H-1B visa could be between 25 to 50 percent and the full application must be filed by end of June. 

Normally H-1B visa is approved in 3-year increment with the start date of October 1st.

Who is qualified for H-1B visa?

To qualify, you must hold a bachelor's or higher degree (or an equivalent foreign  degree or 12 years of relevant progressive job experience) in the specific field for which you seek H-1B employment. USCIS Officer will determine whether your offered H-1B job falls under a specialty occupation and whether you are qualified to perform the job duties of the offered position. Your H-1B employer is required to file a labor condition application with the Department of Labor and must comply with all terms and conditions. 

How do I get H-1B visa? 

  1. Find a US Employer who needs your professional services in the field of your expertise.
  2. Once the hiring is done and offer letter is signed, the H-1B sponsoring Employer will collect your resume and copies of your passport, degree, diploma, transcripts and job experience letters for processing. 
  3. Employer hires an immigration lawyer and send the basic company information, along with job title, job duties, address of the job site, salary, resume, degree, diploma, transcripts, and job experience letters to prepare the H-1B visa. 
  4. Immigration Lawyer will discuss the case with the employer and provide a missing document list. 
  5. Once agreed by all parties on terms and conditions, Immigration Lawyer will request the H-1B employer to post the LCA notice of posting at the job site and file a Labor Condition Application. 
  6. Our law firm starts to prepare I-129 and other forms as well as petition letter and obtains credential evaluation if and when needed. 
  7. It takes 7 days to obtain certified Labor Condition Application. The certificate LCA and immigration forms must be signed by the H-1B employer prior to filing the H-1B visa petition to the USCIS. 
  8. H-1B cap subjects cases (H-1B lottery) will need to be registered with the USCIS BETWEEN March 1st to March 20th by paying $10 H-1B visa registration fee. If selected in the lottery, the full H-1B petition must be filed within 90 days. 
  9. About 65,000 H-1B visas are available each year. Additional 20,000 H-1B visas are available for people holding US Master's or higher degree from Public or non-profit college or university. 
  10. H-1B transfer, H-1B extension, H-1B amendment can be filed anytime and do not go thru H-1B visa lottery.
  11. H-1B visa Initial Filing Fees: employer with less than 25 employees pay $1,710 and employer with more than 25 employees pay $2,460 to the Immigration. Employer with more than 50 employees and where 50% or higher of the employees hold H-1B or L-1 visas pay additional $4,000. The premium processing fee of $2500 is optional. 
  12. H-1B Receipt Notice shall arrive within 2 to 3 weeks of filing an acceptable H-1B visa petition at the correct USCIS Service Center. 
  13. H-1B Premium processing cases (for additional fee of $2500) and will be processed within 2 weeks if the premium processing is allowed by the USCIS at a particular time. Normal processing time varies and could take around 4 to 6 moths. Once the file is opened, the USCIS will either approve the H-1B visa or request for additional evidence on availability of specialty occupation, qualification of the H-1B worker and maintenance of status of the H-1B worker is already in the US in another visa category. 
  14. Upon approval of the H-1B visa by the USCIS, you can start to work if already in the US or apply for a work visa at the Embassy or Consulate. When your petition is approved, your employer or attorney will receive a Notice of Action, Form I-797, which serves as your petition's approval notification. 
  15. To apply for H-1B visa at the US embassy or consulate, you will complete and submit DS 160 and other relevant forms and pay set fee. At the H-1B visa interview, The consular officer will verify your petition approval through the Department of State's Petition Information Management Service (PIMS) and verify your background and credentials. At this time, the Consul Officer will also verify bonafideness of the H-1B visa sponsoring employer. Once the Consul Officer issues the H-1B visa, you can come and start to work. 
  16. US government agencies involved in the H-1B visa life cycle: The Employment and Training Administration (ETA) of the USDOL approves the LCA; The U.S. Citizenship and Immigration Services (USCIS) approves H-1B visa classification (status); The Department of State or the Embassy or Consulates issues the H-1B visa; The Wage and Hour Division (WHD) of USDOL enforces the employer's LCA obligations; and lastly the FDNS monitors the genuineness of the H-1B visa program through random site visit.  
  17. Why hire our law firm for your H-1B visa? Keshab has successfully handled over 50,000 H-1B visas. He has extensive experience in dealing with complex H-1B visa matters including successfully responding to difficult Request for Additional Evidence (RFEs).  Has represented 100s of corporations and thousands of individuals. Call us at 2125716002 or send an email to [email protected] 

H-4 Visa and H-4 EAD FAQs

  1. I'm currently in H-4 status and going to university. How do I change to F-1?

You need an I-20 from a designated school official (DSO) at your university (contact whoever deals with international students/student affairs) and then apply to USCIS for a change of status using Form I-539.  Please be mindful that you need to remain in a valid status (maintain H-4) until your adjustment to F-1 is approved.

  1. I'm in H-4 status and want to attend a US university, am I considered an international student?

This will vary between schools as each institution sets their own definitions/criteria for who qualifies as a domestic student for tuition purposes, so you should check where you apply. 

  1. Can I start working as soon as I apply for an H-4 EAD?

No.  You must wait until your employment authorization is actually approved before you can start to work. 

  1. I filed an extension for my employment authorization while in H-4 status, can I keep working if my current authorization expires while my extension is still pending?

Once your H-4 EAD expires, you cannot keep working without the approval of your extension.  H-4 status employment authorization is unique in this respect.

  1. I am using my H-4 EAD to participate in a business partnership with a USC, what do I do if the H-4 EAD program is terminated?

You will no longer be able to participate in running the business—you may continue to receive profits as a passive investor (and make sure you properly adjust your tax filings to reflect this).

  1. I used my H-4 EAD to start a business, what happens if my H-1B spouse loses his/her job? 

When your H-1B spouse's employment is terminated, he/she loses H-1B status and you also fall out of H-4 status.  You should consult with an attorney to figure out how to protect your company—as without status, your EAD is no longer valid and you cannot continue to run the business/be employed at all. 

  1. Should I even attempt to apply for EAD while in H-4 status since it looks like the government is going to end the program?

It is probably worthwhile to try to gain approval at this point since there is no set end date for the program.  And the effect of the program being terminated is unknown; those in H-4 status with an existing employment authorization may be able to continue work until their expiration date.

  1. My H-4 EAD was denied because I selected the wrong category, how should I fix this?

The quickest and most inexpensive solution to your problem is simply to re-file the I-765 with the correct information. [Is amendment possible?]

  1. My application to change status to H-4 is pending, can I leave the US and receive my H-4 from a consulate?

Your change of status application will be considered abandoned if you leave the country, but as long as your spouse remains in H-1B status, you should be able to apply for an H-4 visa stamp to return.  Change of status does not need to be approved to apply for the visa “stamp.”

  1. I'm in H-4 status and in the process of divorcing my H-1B spouse, how long can I stay in the US after the divorce is finalized?

There's no grace period, once the divorce is finalized you are no longer in H-4 status—so prior to this happening you should either apply for adjustment of status or make plans to leave the US. 

  1. I have an H-4 EAD pending, can I travel overseas?

It's okay to travel abroad while a properly filed EAD is pending. 

  1. I have a pending extension of my H-4 status and my spouse's I-140 was recently approved, may I apply for employment authorization right away or do I need to wait for the extension to be approved?

The H-4 spouse of an H-1B individual with an approved I-140 may apply for an EAD at any time.  You should request that USCIS use your pending extension as the basis for your EAD and submit evidence accordingly. 

  1. I've been attending university in H-4 status as a dependent of my H-1B parent, but I'm about to turn 21 and age out while I still need [x amount of time] to complete my degree—what should I do?

You should apply for change of status to another non-immigrant status prior to turning 21, typically this would be F-1 for someone in your situation.  But currently USCIS is taking a long time to process these applications—most likely your F-1 application would still be pending when you graduated (obviously making you ineligible for status).  Aside from finding another valid non-immigrant status to apply for, one option is to contact the designated school official at your school about extending your program of study. 

Also, it is now USCIS policy that any nonimmigrant seeking to change to F-1 status must “bridge the gap” in their status that occurs while their F-1 application is pending by filing I-539s in some other valid status (such as change of status to B-2 followed by extensions (?)) until receiving F-1 approval.  Consult an attorney for more detailed advice specific to the facts of your case. 

  1. Can an H-4 EAD be used for concurrent employment with different companies?

Yes, presently, H-4 EADs don't have any restrictions—having more than one employer at the same time and self-employment are okay. 

  1. Do I need to tell my new employer that I will be working on an H-4 EAD?

While you won't have to produce your I-94, employers need to file an I-9 to verify to the IRS that any new hire is authorized to work in the US.  Your EAD will be required and your employer would be able to determine you were in H-4 status from that. 

  1. I'm applying for an extension of H-4 status and renewal of my EAD but my passport will expire in 5 months.  Will USCIS approve my extension and EAD beyond the expiration date of my passport?

USCIS can grant an extension of status beyond your passport's expiration date and the EAD renewal's end date will be based off the I-94 granted.  Passport expiry dates are more of an issue for entry/re-entry into the US where they would result in a shortened I-94.

  1. My H-1B spouse is being sponsored for an extension of status/change of employer—does my extension of H-4 status need to be filed at the same time or can it be done later?

You can do either, though filing together is preferable to avoid mistakes/forgetting to extend your status. 

  1. Can I still apply for an H-4 EAD extension? ** time sensitive pending regulation going into effect?**

Yes, there is no set end date for the H-4 EAD program as of yet, so for now, you can still go forward with an application for extension. 

  1. How long are H-4 EADs issued for?

Usually they will run for the duration of the primary beneficiary's H-1B status. 

  1. I'm currently in H-1B status with a valid I-94 and a pending H-1B amendment.  Can I file for change of status to H-4 while the amendment Is pending?

Yes, if you qualify for H-4 status, you can apply for such a change of status while you have an H-1B amendment pending. 

  1. I filed for extension of my H-4 status, can I apply for an EAD while the extension is pending?

Provided that you remain qualified for H-4 status, you should be able to apply for an EAD while the extension is pending—just attach the receipt notice for the I-539 for extension of H-4 status to your application for an EAD. 

  1. I filed for an H-4 extension at the same time my H-1B spouse filed for their extension, can I apply for an EAD while the extensions are pending?

You can file for employment authorization while the extension is pending (make sure to attach the receipt notice for your extension to your EAD application), but it will not be approved until your H-4 extension is approved.  And your H-4 extension won't be approved before that of your H-1B spouse. 

  1. Can I apply for an H-4 EAD while my spouse has an H-1B amendment pending?

Yes, your spouse's pending H-1B amendment shouldn't prevent you from seeking H-4 employment authorization.

  1. The consulate denied my H-1B visa for [x reason/employer's right to control], my spouse is currently in the US working on H-1B status…am I able to apply for an H-4 visa?

Usually an H-1B visa denial should not prevent you from qualifying for an H-4 visa.  [Of course, depends on grounds for H-1B denial, may be disqualifying factors if not having to do with employment but beneficiary's background]. 

  1. Can H-4 extension be filed with premium processing?

There is no premium processing option for H-4 extension applications or any other nonimmigrant status obtained by filing an I-539.  There's a chance that filing your H-4 extension along with the principal H-1B beneficiary's extension (filed with premium processing) will result in a quicker turnaround, but this is not a guarantee or obligation on the part of USCIS. 

  1. How do I return if I travel outside the US while my change of status from H-1B to H-4 is pending?

Generally leaving the US while a change of status is pending will result in your application being considered abandoned.  If your H-1B visa and petition are still valid, you may re-enter on that basis.  Or, if you qualify for H-4 status, you can apply for an H-4 visa at a consulate and ultimately re-enter that way. 

  1. Can I apply for an H-4 EAD based on my spouse's approved I-140 from his/her previous employer if more than 180 days have elapsed and he/she is working with a new employer?

If more than 180 days have passed and your spouse's previous employer has not revoked it, it will now remain valid and good for not only your H-4 EAD but other H-1B/H-4 status extensions as well. 

  1. If my spouse returns to the US using his/her advance parole document, can I enter on an H-4 visa?

No.  If you want to enter the US on an H-4 visa, your spouse needs to return to the US in H-1B status, not by using an advance parole document. 

  1. If my spouse is moving to a new H-1B employer do I need to apply for a new H-4 EAD?

No, your H-4 employment authorization is tied to your spouse's valid H-1B status—it is not conditional on he/she working for a particular employer.  Your spouse's H-1B transfer should not impact your H-4 status or EAD. 

  1. My spouse has an H-1B extension pending, can I apply for an H-4 visa from abroad?

Only if your spouse is currently in H-1B status, otherwise you need to wait for his/her extension to be approved. 

  1. Can I apply for an H-4 visa stamp from abroad while my H-1B spouse in the US?  Does it matter if his/her H-1B extension was approved but their visa stamp is expired?

So long as your spouse is currently in H-1B status you can apply for an H-4 visa from outside of the US.  The approved extension is relevant, an expired visa stamp has nothing to do with maintenance of H-1B status—it is only for his/her travel purposes. 

  1. Can I use my H-4 EAD to participate in an LLC?

H-4 employment authorization is virtually unrestricted, there is no bar to participating in a limited liability company.

  1. Can my H-4 EAD be used to earn income from rental properties and/or stocks?

H-4 EADs grant virtually unrestricted employment authorization, including self-employment like managing rental properties.  If the income from stocks is passive (dividends, capital gains, etc.) and the stocks are just investments (you're not managing anyone else's portfolio) an EAD would not even be necessary.  

  1. I'm on H-4 and going abroad to apply for an H-1B stamp, if the consulate denies my visa application, can I return to the US on H-4 status?

If your H-4 visa stamp is still valid, you should be able to re-enter the US on that status regardless of the consulate's denial of your H-1B application.  But be aware that sometimes consulates will arbitrarily decide to cancel valid visas.

  1. I'm working on an H-4 EAD, can a PERM and I-140 be filed on my behalf?

Yes, barring unusual circumstances, an H-4 EAD shouldn't adversely impact PERM or I-140 filings.

  1. Do I need to maintain H-4 status while my I-485 is pending?

This is optional, but probably wise considering I-485 approval is not guaranteed.  If your I-485 is denied and you have not maintained status, you will need to leave the US. 

  1. Do I have a choice of remaining in H-4 status if I have an H-1B approval?

Once you are approved for H-1B status you are out of H-4, you don't have your pick.  If the H-1B petition was sent for consular processing though (requiring you to travel out of the US and apply for the H-1B visa stamp to then re-enter on H-1B status), you could simply not go and remain in H-4. 

  1. I have an H-4 EAD and have been laid off, can I collect unemployment?

Assuming the H-4 EAD holder otherwise qualifies for unemployment, there is no bar to this. 

  1. Can my H-1B spouse apply for my EAD if I am overseas?

No.  In order to apply for H-4 employment authorization, you must be in the US.  Your spouse cannot do this for you while you're abroad.

  1. Can I continue to work on my H-4 EAD while my spouse is traveling outside the US for an extended period of time?

The legality of this situation is unclear—previously there was a memo stating that a principal beneficiary of nonimmigrant status (such as H-1B) cannot leave their dependent in the US for a protracted period of time.  If the principal is traveling for work-related reasons (for the H-1B employer), dependents can stay in the US.  It could be argued that if you are permitted to stay, then there should be no issue with continuing to use your EAD for a short period.  But there is no set guidance on this and you should consult with an attorney. 

  1. I'm in H-4, can I remain in the US while my H-1B spouse takes short-term employment outside the country?

H-4 dependents are not required to always travel with/leave the US when the H-1B beneficiary does.  But for you to maintain H-4 status, your spouse must be validly in H-1B.  So, if your spouse's “short-term employment” is for his/her H-1B employer, this is not an issue.  However, if he/she has traveled outside the US taking non-H-1B employment, this is a violation of status.  And when your spouse is no longer H-1B you immediately fall out of H-4 and are not eligible to remain in the US. 

  1. I have a valid H-1B but am living overseas with no project at this time.  I also have an H-4 visa stamp, am I able to travel to the US with it?  What should I expect at the port of entry?

If your H-4 visa stamp is still valid (you still have an H-1B spouse in the US), then you can use it to travel.  The officers at the POE will be looking for proof of your H-4 status, for example: the H-1B spouse's approval notice, receipt notice for H-4 status, spouse's pay slips, marriage certificate, etc.. 

  1. My H-1B spouse had his/her visa stamp revoked due to a DUI conviction, can I still travel on my H-4 visa stamp?

A valid H-1B visa “stamp” is not required for maintenance of H-1B status, the consequence from the DUI only affects your H-1B spouse's ability to travel.  Your valid H-4 visa stamp is not revoked in concert and can still be used to travel. 

  1. I'm on F-1 status and have filed for a change to H-4, do I need to stay in school until I get approval?

A timely filed request for change of status (made before your current status is expired) usually means you will be able to remain in the US without fully complying with all the conditions of the status you are changing from. 

  1. I have an H-4 EAD, can I attend school full-time and still retain the right to work?

Yes, an H-4 EAD does not require you to be working to maintain the authorization—there is no reason you can't attend school full-time.  You will not lose your employment authorization by doing so (assuming your H-4 status remains valid). 

  1. Can a person with an H-4 EAD collect unemployment benefits?  What if they were working as an independent contractor?

You could be eligible but will need to check the laws in your particular state.  Independent contractors are usually considered to be self-employed and ineligible for unemployment benefits. 

  1. I have an H-4 EAD, if my H-1B spouse loses his/her job, how long can I continue to work?

You will lose H-4 status the day after your H-1B spouse loses his/her job.  So, the answer is basically you cannot continue to legally work. 

  1. When my spouse's employer applied to extend his/her H-1B status, they didn't file my H-4 extension.  My I-94 expired before I realized this, and we hired an attorney to file a nunc pro tunc but [time period greater than 180 days] later, the court denied our request.  What are my options now?

It's important to remember your spouse's H-1B employer is not responsible for filing for your H-4 status/extension.  If it had been less than 180 days following the expiration of your I-94, a nunc pro tunc order would not have been necessary.  Unfortunately, given the time that has passed, your options are limited.  We recommend that you seek legal counsel, it's possible the NPT could be refiled with better results.  If this is unsuccessful, once you leave the US (as required) you will likely face a 3 or 10-year bar to re-entry.  We can advise you how to apply for a nonimmigrant waiver to the bar, but under this administration there are no guarantees of success.  

  1. I'm in H-4 status and want to work as a teacher, how do I go about doing this?

While seeking an H-4 employment authorization document may be an option, you may also want to consider seeking an employer who will sponsor you for H-1B or J-1 status.  You should also be sure to check what the education and licensing requirements are for the level of teaching you want to pursue.

  1. I have a change of status to H-4 pending and need to travel, do I need to put in a request for consular processing?

No.  The H-4 visa stamp can be applied for abroad with proof of the marriage and your spouse's current H-1B status.

  1. If I'm working on an H-4 EAD, can my employer sponsor me for a green card or do I need to be in H-1B status?

There is no particular nonimmigrant status required for a green card, if your H-4 status and EAD remains current, it's possible you could continue to work just as you are throughout the entire green card process.

  1. I have an approved I-140, if I change from H-1B to H-4, what impact will this have?  And will I be able to return to H-1B status?

Your employer may continue the case if they choose, but, in any case the I-140 priority date should be retained for a future green card case.   A change to H-4 should not prevent you from later resuming H-1B status. 

  1. If I'm outside the US, can I use my unexpired H-1B visa stamp to re-enter, even if I intend to work on my H-4 EAD?

No.  Use of your H-1B visa stamp, even if it is not expired requires current H-1B status (an existing approved petition and job), you should apply for an H-4 visa stamp at the nearest consulate instead so that you can enter in H-4 status. 

  1. After changing from H-1B to H-4, how do I switch back to H-1B?

Provided you have remaining H-1B time and the initial petition was cap-exempt, you should be able to regain H-1B status through any employer (that qualifies) without re-entering the lottery.

  1. I'm currently in H-4 status and want to go overseas for a few months.  If I have an employer willing to sponsor me for an H-1B cap case, do I need to be in the US for that petition to be filed?

No—it's possible to apply for H-1B status for a beneficiary who is abroad, the petition will be sent for consular processing (meaning if you return on your H-4 status prior to its approval, you would need to travel outside the US to obtain the H-1B visa stamp and then re-enter on that status). 

  1. I have a change of status from H-1B to H-4 that has been pending for a few weeks, is it too late to withdraw?

While you can request to withdraw, it's important to make sure that USCIS properly receives the request in connection with your case.  You should consider consulting an attorney to ensure that withdrawal is really the best course of action in your case.

  1. I have filed a change of status from H-1B to H-4 but my H-1B I-94 is going to expire, will I need to leave the country?

No.  From your question you have “timely filed” your change of status request (you were still in valid H-1B status at the time) and consequently will be in a period of authorized stay while the change of status is pending. 

  1. I'm in H-4 status and was charged with shoplifting, what immigration consequences will this have?

It's important for you to consult a criminal attorney in the state you live to determine what penalties shoplifting carries—depending on that, a shoplifting conviction/plea might mean you are removable (can be deported).

  1. I initially entered the US on F-2 status, but my spouse changed from F-1 to H-1B and I filed for a change of status to H-4.  After that I decided to enroll in university and filed for F-1 status—that was approved in [x month] starting right away.  H-4 status was approved in [y month, earlier than x] with a start date of [z month, later than x]…I am not sure which status I'm in?

In cases like yours, USCIS generally regards the last change of status to take effect to be the binding one.  So, even though the H-4 status was approved earlier than F-1, it did not take effect until after the F-1—USCIS would consider you to be in H-4 status. 

  1. How long will my H-4 status be valid after my H-1B spouse files an I-485?

So long as your spouse retains H-1B status, your H-4 status will continue, the filing of an I-485 does not have any effect—it is only if the H-1B primary is approved or begins to work on an EAD (based on the I-485) that your H-4 status will be impacted. 

  1. I'm currently in F-1 status, do I need to change to H-4 in order to be eligible as a beneficiary of my spouse's approved I-140?

No.  H-4 status is not required to be a derivative beneficiary in your spouse's green card case, your eligibility is automatic as his/her spouse. 

  1. I'm in H-4 status pursuing a Master of Science, do I need to switch to F-1 if I want to be eligible for the master's cap?

No.  So long as your master's degree is acquired from an accredited non-profit US university, you will be eligible for the master's cap.  Since you can attend school full-time in H-4 status, there is no reason you would have to switch to F-1 (unless some situation arises where you would no longer qualify for H-4). 

  1. Can I enter the US on H-4 status while 6-7 months pregnant?

Yes.   There is no immigration prohibition on entering while visibly pregnant on H-4 status.  Your situation is different from that of someone on B status or a tourist. 

  1. Do I need to go abroad if I want to change status from H-1B to H-4 and apply for an EAD?

No, you can apply for a change of status to H-4 within the US and could continue to work on H-1B status until H-4 approval —but if you leave while that application is pending it will be considered abandoned and you could simply apply for an H-4 visa at a consular office with evidence of your marriage and spouse's H-1B employment.  Then you could only file for the EAD upon your return to the US and there would likely be a 90 day wait for approval.

  1. If I'm running a company on my H-4 EAD, can my H-1B spouse work for me if he/she doesn't collect a salary?

No.  Your H-1B spouse working for you would be unauthorized employment—whether he/she is compensated or not.

  1. I have been visiting my boyfriend/girlfriend in the US while on a B visa and we have decided to get married, can I apply for H-4 status in the US, or do I need to go abroad?

Because of the nature of B visas (explicitly incompatible with any type of immigrant intent), it would be best to go over the specifics of your case in a consultation.  The most important thing is that you did not make any misrepresentations on your B visa application. 

  1. If I change from H-1B to H-4, will time spent working on an H-4 EAD count towards my 6 years of H-1B?

No.  H-4 EAD work time does not count towards H-1B time. 

  1. How long does it take to switch from H-1B to H-4?  Can I work on H-1B up until the time of H-4 approval?

The change of status to H-4 typically takes 3-4 months (possibly faster if the H-1B was premium processing?).  You can continue working in H-1B status until your change of status to H-4 is approved. 

  1. What happens to my H-4 EAD if my H-1B spouse loses his/her job, makes a change of employer, or just wants to take a break?

H-4 EAD requires maintenance of H-4 status which means your H-1B spouse must maintain his/her status.  So, a change of your spouse's H-1B employer will not affect your H-4 EAD.  But he/she losing his/her job or “taking a break” would mean loss of H-1B status and your simultaneous loss of H-4. 

  1. If my spouse's H-1B cap case is selected in the lottery, when do I need to change status from F-2 to H-4?  What if my application to change status is not approved until after my spouse's employer files his/her cap case?

If you already applied for F-2 status (even if you were not approved yet) you can file your change of status to H-4 along with your spouse's H-1B cap case.  But they don't have to be filed together--as long as you submit your change of status prior to the [October 1] start date, it is fine.

  1. I'm in H-1B status but plan to go for H-4 visa stamping, will my H-1B status be canceled if I get the H-4 visa stamp?

The H-4 visa will not impact your H-1B status, but you can only hold one status at a time—so if you are switching to H-4 status because your employment is ending, it is better for the H-1B employer to revoke their petition.

  1. What do I need to do to change status from H-4 to F-1?

You must file form I-539 to request a change of status from H-4 to F-1—and the school you will be enrolling in/are currently attending would file form I-20 on your behalf.  But do note that you can be a full-time student on H-4 status, most likely you are asking this question as a dependent child about to age-out of H-4.  In which case you should be aware that you must “bridge” any gap in status after your H-4 status expires and your F-1 status is approved (with some other valid non-immigrant status). 

  1. I'm an H-4 spouse, can I study full-time and later change to F-1 status?

Yes, an H-4 spouse is free to attend school full-time and there is no bar in applying for a change of status to F-1.  Just make sure to allow enough time so that your COS is not still pending when you're about to complete your course of study.  If you make the change far enough in advance, you should be able to qualify for OPT. 

  1. I'm in H-4 status but have spent most of my time out of the US due to personal reasons.  Will this impact I-485 approval?

There are no restrictions on the amount of time someone in H-4 status can spend outside the US.  What's important is that H-4 status was continuously maintained and valid at the time of filing the I-485.  You should also have an advance parole document in case you can no longer enter the US on H-4 status (due to the primary's I-485 being approved). 

  1. If my H-1B spouse changes job locations after he/she has an approved extension, what impact will this have on my first H-4 visa stamping overseas?

The H-1B spouse should have their status in order before you go for visa stamping, any change in work location would require a change in the LCA, or in the case of an end-client site, your spouse's H-1B employer should file for an amendment re: the new work site.  Until the potential issues with your spouse's H-1B status are resolved, it is best to hold off on seeking your H-4 visa for the first time. 

  1. I am overseas and my H-1B petition was denied, can I enter the US on H-4 and file an appeal or a motion to reopen/reconsider?

If you can be in the US within 30 days of the denial, then it's possible.  But if your petition is cap-exempt, re-filing with more supporting evidence may be the better option.  We suggest you seek legal counsel to evaluate your choices going forward. 

  1. My spouse has an approved H-1B petition with a start date of October 1st and I am abroad, can I apply for an H-4 visa now and join him/her on/after the start date?

If your spouse remains in the US (and the petition is for change of status), you cannot apply for your H-4 visa until October 1 (when he/she is in H-1B status).  If, however, your spouse travels abroad prior to the start date, he/she will need an H-1B visa to re-enter the US and you could apply for your H-4 visa at the same time (prior to October 1). 

  1. If I'm currently in H-4 and apply for a change of status to J-1 from within the US and it is rejected, will I also lose my H-4 status? 

No.  As long as you remain qualified for H-4 status and your I-94 is not expired, a denial on a change of status position does not affect your current nonimmigrant status. 

  1. I'm currently H-1B with an approved I-140 with a priority date of [x], if I change to H-4 status will I lose my priority date?

No.  Your priority date is locked in once the I-140 is approved, change of status to H-4 will not impact this. 

  1. I have an H-4 visa and am in the US, is it okay for me to be a volunteer/participate in charity/partake in [x: actual Q is “blogging”] and donate any revenue from [x] to charity?

So, unpaid volunteer work or participation in a charity while in H-4 status should be fine as long as the position you're working in is not a productive one or one that if filled by a citizen would otherwise be compensated. 

As to hobbies that generate profit, such as blogging, the question is whether this would qualify as unauthorized employment—not so much what you do with the profits.  Ad revenue from online platforms most likely crosses the amorphous boundary of what constitutes “employment,” and would be prohibited even if you give away whatever is earned.   

H-1B

  1. With premium processing is it unusual for a derivative beneficiary (H-4 spouse, child) not to receive approval of their application at same time as the principal?

Premium processing does not require USCIS to adjudicate applications for derivative beneficiaries at the same time as the principal, it is done as a courtesy. 

  1. Is my H-1B petition less likely to be approved after a second RFE?

Under the current administration multiple RFEs are more commonplace, it doesn't necessarily mean your petition won't be approved.

  1. Can an H-1B amendment be filed with premium processing?

[Answer dependent on when question is asked] No, at this time premium processing is only for cap-subject H-1B petitions filed for “extension without change.”

  1. Can I go to school while on H-1B status?

Yes, provided you maintain the employment your H-1B status is based on.

  1. For H-1B employees working at an end-client site, is an itinerary required when filing an extension?

An itinerary is only required when the petition is filed for multiple work locations.

  1. [Questions regarding pending legislation in general]/What impact will the current DHS spending bill have on the employment-based immigration system?

While Congress often considers many bills dealing with immigration issues, the majority are unlikely to become law.

  1. I'm on H-1B status and want to switch employers [unaffiliated companies], do I need to wait for USCIS to issue a change-of-employer receipt notice or can I go by delivery confirmation that my petition was received?

Work for the new employer can commence once USCIS has received the change of employer petition, but if you want to be on the safe side you can wait for the receipt notice that your petition has been approved. 

  1. If I have an H-1B extension and I-485 pending at the same time and my H-1B extension is denied, can I stay in the US?

While you would no longer have H-1B status (assuming your current H-1B status is expired—if it's still valid, you would be H-1B until the expiration and then) you would be in a “period of authorized stay” [for how long?]

  1. I'm in H-1B status with a newly approved I-140, can my spouse apply for employment authorization right away?

If H-1B status is properly maintained and your I-140 is current and valid, your spouse should be able to apply for employment authorization right away.

  1. I'm in H1-B status and recently crossed a land border into [country that shares border with US] and CBP did not stamp my passport when I re-entered the US.

It's not unusual for this to happen at land borders, it should not be an issue unless [possible scenarios?  Existing issues with status, need to supply record of travels?]

  1. My employer wants to file an H-1B petition for me as [E category] before I file for my STEM OPT extension, what impact will this have on my extension application?

Usually an H-1B petition will have no impact on a STEM OPT extension application.  [Unless…more specificity here of when there would be an issue?]

  1. For an H-1B petition, what does consular processing mean?

This just means that the beneficiary of the petition will use the approval to apply for a visa at a US consulate, as opposed to petitions filed on behalf of a beneficiary within the US.

  1. I had to travel outside the US for an emergency after my H-1B cap case was filed and received an RFE when I returned that dealt with my travel dates and maintenance of status, how should I respond?

Unfortunately, any travel while a change of status is pending results in the request being canceled.  The H-1B could still be approved for consular processing, but there's not really any way to respond to the RFE that would fix the cancellation.

  1. I applied for change of status from [current] to H-1B and my [current status] I-94 will expire soon but my H-1B is still pending, do I have a problem?

Usually you will be in a period of authorized stay while a change of status application is pending.  [What is duration of authorized stay period?  30 days?]

  1. I had an interview for my employment based I-485 a while ago and the case is still pending, would contacting my Congressperson make a difference?

If your priority date has remained current, contacting the office of your Congressperson may be helpful—USCIS is not infallible and sometimes loses track of applications.

  1. I am a [profession] on H-1B and my employer has multiple worksites—originally, I only worked at one, but now he/she wants me to work at an additional site.  Does this require a new LCA?

This depends on whether the additional work site is within normal commuting distance of the original site—if yes, then no new LCA will be necessary (note that if your hours or job duties change substantially an H-1B amendment must still be filed).  But if not, you will probably need to file an amended H-1B petition as well as a new LCA. 

  1. My H-1B extension was denied and my I-94 expired, but my employer has filed an appeal, what is my current status?

You are currently out of status and may be here unlawfully—your employer filing an appeal does not grant you any status.  Outside of the appellate process, any other petition or application filed once you're out of status should be for consular processing.  If you remain in the US, you will most likely be issued a Notice to Appear (first step in removal proceedings) and should consult an attorney about how to proceed.

  1. If my pending H-1B extension is denied, can I leave the US and re-enter on a B1/B2 visa?

While this seems like a plausible course of action, you should be aware that there are potential problems, for instance your H-1B extension denial could result in you being in the US unlawfully.  You should also be aware that for people who have been in the US for an extended period of time on H-1B status, Customs and Border Protection may be more inclined to deny you entry as a B1/B2 visitor.

  1. I'm in H-1B status with an amendment pending and my I-94 expires [distant future date], what happens if my amendment is denied?

If your employment is still available, you should be able to work through your original H-1B petition end date.  Rarely USCIS will make a negative “status” determination in denying an H-1B amendment application, in that case you would be in the US unlawfully and need to leave.

  1. When an H-1B change of employer is approved, when do I need to start work with the new employer?  How long can I continue to work with my original H-1B employer?

As long as your original H-1B employer's approval remains valid, you can continue to work with them.  You don't ever have to start working for the new employer, and in the event that you don't join them within 60 days, that employer should withdraw their H-1B petition.

  1. I applied for an H-1B visa [abroad], but it was sent for administrative processing—while it was pending I got a [better] job offer from a different employer, can I transfer my H-1B to the other employer and receive a stamp upon approval of the new petition?

You should be able to schedule a new interview based on a new H-1B petition, but you will likely have to withdraw the pending visa application.

  1. I received an RFE for my H-1B petition and so did my spouse on his/her H-4 application, is it okay to send the responses to both in the same envelope?

There's no problem, in fact, you should send both responses in the same envelope to make sure USCIS receives the files together.

  1. My I-94 is valid until [future year], can I travel out of the US while I have an H-1B amendment pending?

It used to be the case that you could leave the US as long as your existing H-1B status and “stamp” were current, but under this administration the better course of action is to wait for your amendment to be approved so that there will be no question when you try to re-enter the US.

  1. My online case status shows that my H-1B extension has been approved, when will I receive the notice in the mail?

Generally you should receive the I-797 notice 7-10 days after your case status is updated electronically.

  1. I had two H-1B petitions (from different employers for different projects) selected in the lottery, can I let both cases continue, or do I need to withdraw one?

As long as the employers and employment obligations are truly unrelated, there is no need for you to withdraw either.  If you receive approvals on both, you will have to decide on one and then the employer you do not select should withdraw their approved petition.  Withdrawing the H-1B is the petitioning employer's responsibility, not yours.

  1. I'm on OPT and received an approval in my H-1B lottery case with a start date of [X], can I change my employer before [x]?

You will not have H-1B status until X, for you to change your employer would involve the original H-1B employer withdrawing their approved petition.  This withdrawal before the start date of [X] could mean the loss of your “cap number” and H-1B eligibility.  You should consult an attorney for advice pertaining to the facts of your case, but generally no change of employer should be attempted prior to an approved H-1B start date. 

  1. When do I found out if my H-1B cap petition was approved? **dependent on when asked**

There is no definite answer but based on cases our firm dealt with last year, most H-1B cap receipt notices will finish being sent out by the end of May. 

  1. How long does USCIS take to respond to an RFE response (normal processing)?

Usually USCIS will respond within 60 days of receiving an RFE response, but they don't have a deadline—some cases may take longer. 

  1. I have permanent residence status in Canada and am in an H-1B position in the US, can I live in Canada and make a daily commute across the border for work?

Generally, this should be possible, but you should consult with an attorney regarding the specific facts of your case prior to relocating just to be sure.  As long as your H-1B job and worksite remain the same you should not have to file for any amendment. 

  1. I'm in H-1B status and my I-94 is valid, but I have an amendment pending, can I travel overseas without any negative immigration consequence?

While USCIS previously issued a memo stating that traveling with a pending amendment was okay if your passport had a valid H-1B visa and you carried the receipt notice for your amendment with you…under this administration, the safest course of action is to wait until your amendment is approved before leaving the country. 

  1. I have a pending H-1B lottery case, can I travel out of the US?

If you leave the country while your H-1B petition is pending, the petition will be converted to consular processing.  So, if your petition is approved, in order to be in H-1B status you would need to get your visa “stamp” at a consular office. 

  1. While I'm on H-1B, is it possible for my parent(s) to come to the US with me as a dependent?

Your parent(s) are not eligible for H-4 status, but an extended B-2 Visa may be an option for him/her/them under the category of “household member.”

  1. Is there any way to verify if my employer has filed an H-1B petition for me?

You will need to check with your employer, there is no way for H-1B beneficiaries to independently check unless you get the receipt number for the filing. 

  1. I'm currently H-1B, can I change status to F-1 to [further my education] and then return to H-1B status?

You should be able to apply for a change of status to F-1 to get [x degree] and then have an employer file an H-1B petition on your behalf so you can resume the remainder of your 6 years of status.

  1. I've been H-1B for [x amount of time less than 6 years] but will now be changing to F-1 status to pursue a degree in a different field.  After I graduate, will I need to re-enter the H-1B lottery to gain employment?

No, a degree and seeking work in a different field has no impact on your having already been counted against the H-1B cap—so long as your initial H-1B period was less than 6 years you should remain cap-exempt. 

  1. I changed status to H-1B last year and am currently valid but don't have an H-1B visa stamp, I will be traveling to [border city/state] soon, will the lack of stamp be a problem?

While travel inside the US shouldn't present a problem, in [border city/state] there may be immigration checkpoints—they're not looking for a valid visa stamp.  What you need is proof of status: your valid passport and copy of I-94 should suffice. 

  1. I have a change of status from H-1B to F-2 pending, can a new employer file an H-1B for me now?

While it's possible, you should be aware that the last approval to take effect would determine your status.  You should consult with an attorney so that you do not end up in F-2 unable to accept gainful employment. 

  1. If I change to a new H-1B employer can my spouse continue working with his/her H-4 EAD?

Yes, your change of employer should not affect your spouse's EAD.  But if the I-140 approval is less than 180 days old, the employer may still revoke it and your spouse's EAD would not be extended. 

  1. I applied for an H-1B visa at a consulate and received a 221(g) notice, is it okay for another employer to file an H-1B petition on my behalf while the 221(g) case is pending?

Yes, the other employer can file an H-1B petition for consular processing.  [What if 221(g) case resolves favorably and the other H-1B petition is also approved?  Is first in time valid?  Does beneficiary have their pick of employer?]

  1. How does consular processing for H-1B work if the beneficiary is in the US?

The H-1B approval will not come with an I-94 card—ordinarily the beneficiary would need to leave the US and return with a valid H-1B status. 

  1. A new employer has filed an H-1B change of employer petition on my behalf, while that's pending I'm staying with my original H-1B employer.  Will it be an issue if my original employer files an H-1B extension for me during this time?

No, you can have multiple H-1Bs filed on your behalf [provided they are from legitimately different/unrelated employers] with no problem. 

  1. I'm about to reach the 6-year maximum of H-1B time, so I have applied for change of status to [x, actual question says H-4].  After I change status to X, if I obtain an I-140 approval, could I use that to return to H-1B?

Yes, in most cases, those who are in a current legal status and were previously in H-1B status will be able to use a valid I-140 approval to extend status beyond the 6-year maximum. 

  1. I'm currently in H-1B status and will soon be going abroad to visit family, I need to go to the consulate to get a new visa stamp, how does [USCIS memo] impact me?

The USCIS memo only impacts adjudication of H-1B petitions.  In any case consulates may request more information to ensure that an H-1B job is/remains legitimate. 

  1. What is an Alien Number?  Do I get one if my H-1B is approved?

An A Number is generally assigned to identify an immigrant after there has been a petition approved on their behalf OR if they have been in removal proceedings.  There will not be an A number on your H-1B approval notice unless you have received an I-130 or I-140 approval before and that was disclosed in the petition.  

  1. My H-1B petition was selected in last year's lottery but ultimately denied.  That denial was appealed, can I re-apply to this year's lottery while the appeal is pending?

Yes.  A pending appeal of an H-1B case doesn't prevent other H-1B petitions/lottery entry. 

  1. Can I file an H-1B change of employer petition if I'm out of the 60-day grace period?

If the 60-day grace period has expired, that does not prevent you from being the beneficiary of an H-1B petition—it will however need to be filed for consular processing (meaning you will need to travel outside of the US to gain status). 

  1. I'm currently employed by a 501(c)(3) nonprofit while on OPT, do they qualify as a cap-exempt employer for H-1B purposes?

Not all non-profits meet the requirements for cap-exempt employers, without more information, the answer is “maybe.”  If your nonprofit employer is “related to” or “affiliated” with an institution of higher education or does research, it is possible they will be considered cap-exempt. 

  1. I was working for one employer in H-1B status but switched to a new employer when they filed a change of employer petition on my behalf.  If the change of employer petition is denied, can I return to my original H-1B employer?

As long as your original H-1B employer's petition is still valid (and they did not withdraw when you left for the other employer), nothing should you prohibit from returning to that employment.

  1. If my H-1B change of employer petition is denied, can I keep working with my current employer?

Yes, a USCIS denial of a change of employer does not cancel/discontinue your otherwise valid H-1B status with your current employer.

  1. Can I change status from H-1B to F-1 even if I have an approved I-140?

While there's no bar to this status change, an approved I-140 indicates immigrant intent that's not compatible with F-1 status, so denial is likely.  

  1. While I was working on OPT, my employer filed an H-1B petition for me that was denied.  I then transferred my SEVIS program to another course of study so that I could continue work on CPT.  My employer is going to file another H-1B petition, will USCIS be questioning my maintenance of F-1 status?  If they find out that my CPT wasn't properly authorized (and I violated F-1 status) will my H-1B petition be denied?

USCIS will require evidence of maintenance of your current status, so it's possible that they may find you to have violated your F-1 status if the CPT wasn't properly authorized.  However, failure to maintain status will not necessarily result in denial of your H-1B petition, it is possible that it could be approved for consular processing and you would then need to travel outside of the US and apply for your H-1B visa from there. 

  1. I received a 221(g) notice at my H-1B visa interview and it has been [length of time] without any further information, is there anything that I or my employer can do to expedite the case?

Currently consular processing in your situation takes 2-3 months, you may try to e-mail the consulate directly but that is not guaranteed to gain a response much less a result.  The 221(g) notice comes from the consulate, USCIS has very little to do with that stage of your visa application. 

  1. Can I work for more than one H-1B employer at the same time? 

Yes, so long as each H-1B employer petitions and receives approval on your behalf. 

  1. My OPT expires [future date] and I'm being sponsored for an H-1B cap case this year, but I need to travel out of the country for a few weeks, will this impact my H-1B petition?

If you leave or are out of the country while your H-1B case is pending, it will only be approvable for consular processing (not change of status).  So, in the event that your case is selected in the lottery and approved, you would need to leave the US and apply for an H-1B visa from there. 

  1. Is there a new/proposed rule that would prevent people from extending H-1B status beyond 6 years?

At this time no such regulation has been proposed.  Extension of H1-B status is also based on law, so any change would need to be approved by Congress. 

  1. Can I have H-1B petitions from more than one employer pending with USCIS?  If both/all my petitions are approved, do I then have my pick of employers?

Yes, multiple H-1B filings are permitted.  And in the scenario where all your pending petitions are approved, you do the choice of employment is yours.  [After you make a selection, the employers you did not pick should withdraw their approved petitions].

  1. Can an H-1B extension denial be appealed?  And can the beneficiary stay in the US while the appeal is pending?

H-1B extension denials can be addressed by filing an appeal or a motion to re-open/reconsider within 33 days of the denial.  Neither of those avenues provide for legal status, so if your current H-1B status has expired you will be accruing time for unlawful presence purposes.  To stay in the US during the pendency of an appeal/motion to re-open/reconsider is a dangerous gamble, if the beneficiary is still denied, they will face the penalties for the time they remained out of status. 

  1. I'm changing to a new H-1B employer where my job title will be [X]—will this be an issue/questioned by USCIS?

The job title itself is not as important as the job duties listed and selection of the proper SOC (standard occupational classification) code used for the LCA filing by the H-1B employer.  As long as USCIS recognizes what's filed with the LCA and reflected by the documentation in support of the H-1B petition as a specialty occupation, the job title itself should not be an issue. 

  1. My H-1B change of employer was denied and my I-94 has already expired.  How do I change employers?

Unfortunately, your options are limited, once your I-94 expired you were out of status and began to accrue time towards unlawful presence.  To pursue employment in the US, you will likely have to leave the country and find a new H-1B employer to petition on your behalf, gain approval, and then obtain an H-1B visa stamp abroad before being able to properly return on H-1B status. 

  1. My H-1B change of employer petition has been pending for more than 240 days, do I need to stop working?

The 240-day limit usually applies to extensions with the same H-1B employer after your I-94 has expired.  For a change of employer, you should be able to continue while the petition is pending. 

  1. H-1B related: I was working in F-1 status on OPT based on a pending H-1B petition, my OPT employment authorization ended [x date] while my petition was still pending.  USCIS denied my H-1B petition [less than 2 months later].  I then tried to transfer my SEVIS record to another program of study, but my DSO told me because my records reflected degree completion I would have to leave the US, is this right?

Usually you would have a 60-day grace period after the end of your OPT employment on [x date] during which you should be able to transfer your SEVIS record to another course of study or prepare to leave the US.  However, your situation is becoming more common with the government refusing to put students SEVIS records back in active status so that they can change their course of study during the grace period.  Until there's a uniform policy, your DSO is not wrong—you will most likely have to leave the US or re-apply for F-1 status based on your admission to a new program of study. 

  1. Is it true that the H-1B minimum salary has been raised to [x: actual Q = $90,000, $130,000]?

No such proposal has become law, many immigration related bills are introduced in Congress but few ever pass.  <For the latest legislative developments in immigration, check our current events section.>

  1. I received an H-1B visa “stamp” [x] years ago, but never went to the US and the H-1B employer later revoked the petition.  I'm currently sponsored for H-1B status now, do I need to re-enter the lottery?

Being approved for an H-1B petition and receipt of a visa stamp generally means that you have already been counted against the H-1B cap and are now exempt—able to file with another employer at any time. 

  1. When is someone counted against the H-1B cap?  Approval of a cap case or some other event?

USCIS has been inconsistent on this issue; one answer is that yes, approval of a cap-subject petition (that isn't revoked before October 1) means that the beneficiary is counted against the cap.  But the language of the INA contemplates a broader definition of those who “[receive] a visa” or are “otherwise granted” H-1B status.  One interpretation of that is that if your H-1B petition has been approved for consular processing but you never receive a visa stamp, then you are not counted against the cap.  So, it would be prudent to discuss the specific facts you are concerned about with an attorney if you find yourself questioning whether you're cap-exempt.

  1. COMMONLY ASKED: Can I travel outside the US while my application for change of status from [X] to H-1B is pending?

If you leave the US while you have an H-1B change of status application pending, that change of status will be considered abandoned and the application, if approved, will be sent for consular processing.  In that event you will have to travel outside of the US and apply for an H-1B visa from there.  

  1. H-1B related: Can my employer sponsor me for a green card while I'm on OPT or do I need to be in H-1B status first?

There's no bar to the green card process being started while you're on OPT.  There is no requirement to be in any special visa status for a green card to be sought. 

  1. Can a start-up or firm with very few employees be an H-1B petitioner?  Does such a petition have a lower chance of being approved?

There is no minimum number of employees required to be an H-1B petitioner, so long as the employer has a need for a specialty occupation position to be filled and an EIN they can file.

While these petitioners are usually required to submit more documentation to demonstrate the legitimacy of their business to USCIS, if filed properly there should not be issues with approval.  

  1. USCIS online case status shows that my H-1B petition was denied, will my employer/the attorney/authorized representative/etc. receive an e-mail with the reasons for denial?

USCIS does not issue denial notices via e-mail—receipt will be either by fax or regular mail.  

  1. I am reaching the end of the 7-year period for L-1A status and have an approved I-140, can I switch to H-1B status once the 7 years is over?

First, time spent in L-1A status usually counts towards the 6-year maximum period for H-1B status.  And while a valid I-140 can be used to extend H-1B status beyond 6 years, it can not be used to extend L-1A status.

Second, an I-140 approval alone does not make you H-1B cap-exempt, if you had been previously counted against the cap, it would not be an issue to change to H-1B status.  If that's not the case for you, you will need to enter the H-1B lottery in order to have a chance of gaining the status. 

  1. I changed to H-1B status but was previously on OPT and had time left, is there any way to revert status and use that remaining time?

Most likely no, that period of OPT time is lost once you change to H-1B status.

  1. I filed an H-1B extension shortly before my I-94 expired, can I apply for a change of employer while my extension is still pending?

While you will be in a period of authorized stay, timely filling of an H-1B extension followed by I-94 expiration usually means a change of employer (commonly referred to as an H-1B transfer) will only be approved for consular processing.    

  1. Is it true that H-1B cases with level 1 wages are being denied?

No, our firm has seen a number of H-1B RFEs with level 1 wages, but an RFE is not a denial—it is still possible to properly respond and receive approval.  For more specific advice pertaining to your case, please consult an attorney. 

  1. I received an RFE on my H-1B [extension] petition questioning my job duties with a level 1 wage, how likely am I to be approved?

RFEs are being regularly issued on petitions with level 1 wages, it's possible to successfully respond, but a more detailed answer would have to involve the specifics of your case. 

  1. If I file for an H-1B change of employer do my H-4 dependent(s) also need to file a transfer?

Dependents of a primary H-1B beneficiary who has filed for a change of employer are not required to file a transfer, but it's not uncommon for them to do so in order for status end dates to all match. 

  1. I am [outside the US] with my H-1B cap case pending, can I apply for a visitor visa?  Will this impact my H-1B petition?

While it's possible for you to apply for a B-2 visa “stamp,” but there's a good probability you will denied as the pending H-1B petition shows immigrant intent (incompatible with visitor status).  Even if that visa is denied, it should not have any impact on your pending case. 

  1. What sort of evidence can be shown at the consulate to prove that I'm working with a client? 

Similar to what you would submit a response to an RFE, the consulate is looking for an end-client letter acknowledging your duties, details of the project you are working on, and the location/contact information.  If the client is unwilling to write a letter, you will have to put submit as much evidence to prove the same as you can. 

  1. Do I still have a 60-day grace period if an employer revokes my H-1B approval?

The grace period should apply even if an H-1B employer has withdrawn their approved petition. 

  1. When does the 60-day grace period start for someone in H-1B status—the date of termination or the last paycheck?

The grace period starts to run from the day an H-1B employee is terminated. 

  1. If I'm H-1B and quit my job, do I still get the benefit of the 60-day grace period?

The most current regulatory language suggests that the grace period applies to voluntary as well as involuntary termination. 

  1. I'm currently in H-1B with an H-4 change of status and EAD application pending, can I continue working?

You can continue working on H-1B status until you receive approval of your change to H-4, after that you will need to wait for your H-4 EAD approval to resume employment.  Sometimes your EAD will be approved at the same time as your change of status to H-4, but this is not something you should count on. 

  1. Can my original H-1B employer revoke their approved petition while I have an H-1B transfer to a new employer pending?  Is there any way to prevent this?

An employer petitioner can always revoke their approved H-1B petition.  However, f your new employer filed the H-1B transfer while you were still in valid H-1B status, your old employer's revocation should not have any negative impact on your status. 

  1. I was working in H-1B status but was fired and the employer revoked the approved petition.  I switched to H-4 status, can an employer file an H-1B petition on my behalf now?

Usually yes, once you received the H-1B approval and were counted against the cap, regardless of your termination and the revocation, a new employer should be able to file a petition on your behalf without having to enter the lottery. 

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  1. I'm about to max out my 6 years of H-1B time and have an approved I-140 with my current employer.  Can I file for an H-1B transfer to a new employer or an extension of status even if the position with the new employer is completely different from what I do with my current employer?

The approved I-140 from your current employer (provided more than 180 days has elapsed) will typically allow you to extend H-1B status beyond the 6 years. 

  1. I have [x time] left in H-1B status but USCIS granted me an H-1B extension that is [x] years beyond the 6-year maximum, does this mean it's okay for me to continue work after the 6-year mark?

Most likely no, this was probably an error on the part of USCIS that you should not rely on.  When USCIS makes a mistake that won't excuse any time accrued in unlawful presence or detrimental impact on your status.  Unless you have an approved I-140 that can be used to extend your H-1B status beyond the 6 years, you should plan to either change to another nonimmigrant status that you qualify for or prepare to leave the country. 

  1. I'm currently in H-1B status with an approved I-140, if I change to H-4 EAD, will this impact my green card case?

Most likely no, the I-140 approval and priority date will not be affected by any change in nonimmigrant status. 

  1. I'm on OPT and my H-1B petition was selected in the lottery, but the project it was filed for will end soon—what happens if an RFE is issued, can I move to a new project?

While it's not uncommon, someone in your situation should consult an attorney.  It's likely that the project's end date will result in the H-1B petition's denial and your options for salvaging it are fairly limited—finding a new client within commuting distance of your current employer may be a solution, but even this gets mixed results from USCIS. 

  1. If my H-1B extension is denied can I change employers?

As long as your I-94 is not expired, you should be able to file for a transfer.  And an expired I-94 would lead to your application being sent for consular processing (meaning travel outside the US and getting a visa stamp at the consulate to re-enter on H-1B status with the new employer). 

  1. I have a pending appeal of the denial of my PERM, can I use this as a basis for extending H-1B status beyond the max 6-year period?

If your appeal has been pending for more than 1 year, you should be able to get a 1-year H-1B approval with any employer.

  1. Will being in H-1B status make my family-based green card application be processed any faster?

No, your non-immigrant status will have no impact on the wait time for an immigrant visa.  You can expect a wait time of up to [sibling-sponsored: 10] years. 

  1. My employer claims an I-140 was approved but refuses to give me the receipt number, is there any way for me to get this on my own?

You should be able to submit a Freedom of Information Act (FOIA) request to USCIS and get ahold of most of the I-140 filling. 

  1. I'm currently in H-1B status, can I file two change of status applications (one to F-1 and one to H-4) at the same time?

While there's no prohibition on simultaneous filing of multiple change of status applications, keep in mind that the last application to be approved will govern your status.  So as soon as your preferred status is approved, be sure to withdraw your other application(s)—beware that sometimes withdrawal requests are ignored/overlooked and the later (undesired) change of status may go into effect anyway.

  1. Can completion of a 1-year online master's degree program qualify for H-1B master's cap?

A master's degree from an accredited public university will qualify for the master's cap, even if the course is completed online/distance-learning.

  1. If I have a degree from a university that lost its accreditation what impact will this have on my H-1B petition?

As long as the university had its accreditation when you received your degree, USCIS will regard that as an accredited degree—the university's loss of standing after conferral should not have any adverse effect on you.

  1. I will be working in [foreign country] for a year while in H-1B status, do I need to file an amendment showing my work location in [foreign country]?

You can only be in H-1B status if you are working in the US—nothing needs to be filed if you are working overseas.  However, when you return to the US an amendment may be required if your work location or job duties have changed. 

  1. My visa application was denied at the consulate, is it possible for an attorney to accompany me?

Attorneys are not permitted to be present during visa interviews, but you can have your counsel contact the consulate by phone or e-mail following the interview. 

  1. How soon after H-1B approval can I apply for a visa “stamp”?

Consulates will typically be willing to accept your application starting 90 days before the date your H-1B position will begin. 

  1. Would tickets for speeding and running a red light impact my H-1B petition/renewal?

Most likely no—low-level traffic offenses should not affect your H-1B case. 

  1. I was in H-1B status working for [x amount of] time but changed to H-4 and my H-1B petition was revoked, am I prevented from returning to H-1B status now?

Unless USCIS revoked your H-1B petition on the grounds of fraud, you should remain cap-exempt and able to return to H-1B status without going through the lottery again. 

  1. My H-1B petition was selected in this year's lottery, can I switch employers before October 1st?

While USCIS has permitted some beneficiaries to make a change of employer before October 1st or the start date of their petition, it's not recommended that you try to do this on your own.  You should wait for your “cap” petition (with the original employer petitioner) to be approved or until after October 1st (whichever is later) otherwise you run the risk of having your cap case denied/losing your cap number and H-1B eligibility. 

  1. I want to stay with my current employer until my H-1B change of employer has been approved.  Will USCIS inform my current H-1B employer that another employer has filed an H-1B transfer on my behalf? 

Typically, USCIS will not disclose any information to your current H-1B employer about a transfer filed by another company.

  1. My H-1B was selected in [previous year]'s lottery but I received a denial, do I have to go through the lottery again?

Yes, you will not be regarded as cap-exempt just because your petition was selected in a previous lottery, actual H-1B approval is required in order to forego the lottery. 

  1. My H-1B petition was filed with regular processing on [past date], can I upgrade to premium processing now because the original filing date was [before premium processing deadline]?  **dependent on the year's premium processing dates**

No USCIS is no longer accepting premium processing filings beginning [x date], once [x date] passed, you cannot change to premium even if you filed prior to that.  Premium processing is expected to resume [whatever date given by USCIS].

  1. Can I be F-1 and H-1B at the same time?

No, you can only be in one non-immigrant status at a time.  Consult with an attorney if you are interested in how to work while in F-1 status or study while in H-1B. 

  1. I've heard that [job title: computer programmers] are no longer eligible for H-1B status, is this true?

USCIS did issue a memo stating that entry-level computer programmers would not automatically be considered a “specialty occupation” for H-1B purposes, this does not mean computer programmers are being denied status wholesale.  Instead, the burden is on the petitioner to demonstrate that the position they want to fill with an H-1B employee meets the criteria for a specialty occupation in line with its designated SOC code through evidence of the specific job duties and qualifications required. 

  1. Can I come to the US if I have a pending H-1B amendment?

Previously there was guidance stating that you could enter the US if you had a valid H-1B visa “stamp” and the receipt notice for your H-1B amendment or extension.  But under the current administration, this is probably not advisable, and you should wait for approval. 

  1. I'm currently working on OPT in F-1 status and my employer will be filing an H-1B on my behalf for the October 1 start date, there is also another H-1B employer filing for me, but I would prefer to stay with my current employer.  If the other employer's petition is the only one that gets approved, is there any way for me to transfer that H-1B to my current employer?  Or can I stay by continuing to work on OPT instead?

To remain on OPT you would need any approved H-1B petition to be withdrawn before October 1.  And then you should make sure that you contact your designated school official (DSO) to check that your SEVIS record was not marked as completed upon the approval you withdrew. Once October 1 passes and you have an H-1B approval, that will be your status and you should start work accordingly.  If you want to return to the employer you are currently with, they will need to file an H-1B transfer for you after that date. 

  1. My employer filed an H-1B amendment for me that has been pending for some time, now another amendment is necessary—do we need to wait for approval on the first amendment or can we file while it's pending?

There is no reason to wait for the first amendment to be approved and while premium processing is not in effect, filing while a previous amendment is still pending is fairly common.

  1. Would an H-1B petition from one employer have an effect on a PERM case filed by a different employer?

H-1B petitions and PERM/I-140 cases are independent of one another and there should be no impact one way or another.

  1. I left the US in [x month/year] after using the full 6 year of H-1B time, can I enter this year's lottery with a new H-1B petition?

After 6 years of H-1B status, individuals must typically travel and remain outside of the US for a full year as of the time of filing before they can be sponsored in the H-1B lottery.

  1. When H-1B premium processing is suspended, does that include extensions and transfers too?

Yes, suspension of premium processing applies to all H-1B filings. 

  1. Does an H-1B extension filed for the same position at the same work site require a new LCA?

If the LCA from the original filing is still valid, it can be used, but be aware that the extension will only be approved for the remainder of the LCA's duration.  If the LCA is expired, then, yes, you need a new LCA in order to file an H-1B extension even if everything remains unchanged from the original petition. 

  1. Will there be fewer H-1B cap cases permitted this year?

ANSWER PER USCIS COUNT FOR YEAR INQUIRED ABOUT.

  1. Do I need to stay with the employer 180 days after their successful filing of an I-140 for me in order to extend my status?  Can I move to a new employer before that period is over?

The 180-day period is not one which you need to stay with the employer, it is the amount of time that the I-140 must remain valid (not revoked by that employer).

  1. We responded to an H-1B RFE, but the case was still denied.  Do I get my filing fees refunded?

No, your filing fees are not contingent upon approval.  USCIS only returns filing fees when an H-1B case is not selected in the lottery.

  1. On H-1B status can I travel between the continental US and Puerto Rico if I don't have a visa stamp?

Puerto Rico is a territory of the United States, you only need valid ID to board the plane. 

  1. I worked for [less than 6 years] in H-1B status back in [past year] and returned to my home country.  Can an employer now apply for H-1B on my behalf as cap-exempt and reclaim the remainder of H-1B time?

Currently there is no expiration on unused H-1B time, so an employer should be able to sponsor you for H-1B without having to enter the lottery.

  1. My H-1B was approved for employment at a non-profit, am I able to transfer to a for-profit company?

The answer depends on whether the initial H-1B employer was cap-exempt—not all non-profits qualify as such.  If they were cap exempt, then either the for-profit company would need to sponsor you for an H-1B cap case through the lottery or you maintain the non-profit and for-profit positions at the same time. 

  1. I'm currently on OPT, if my H-1B petition is approved, will I need to travel outside the US for stamping?  If not, can my dependent (who is abroad) receive a stamp?

Unless your H-1B petition was sent for consular processing, there will be no need for you to receive a stamp.  Assuming your dependent qualifies for H-4 status, he/she should be able to apply for a stamp at the consulate

  1. I've been working on OPT after graduating with a master's degree from a private nonprofit US university that lost its accreditation.  Can my employer file an H-1B for me under the master's cap?

Master's cap petitions require the degree to be from a US accredited public or non-profit university.  USCIS may look to the school's accreditation at the time the degree was conferred as well as when the H-1B petition is filed.  So, to avoid issues later, your employer may want to file the petition under the regular cap.

  1. Do the job duties listed on my H-1B extension need to match those used for my approved I-140?

If the H-1B employer was the one who filed the PERM that was the basis for your approved I-140, then the job duties should be similar.  But if your approved I-140 comes from a different employer, this is not something to be concerned about.

  1. Can someone working in H-1B status also have an H-4 EAD?

No.  You can only be in on non-immigrant status at a time—an H-4 employment authorization document requires H-4 status, which is incompatible with currently being H-1B.

  1. I worked in H-1B status for [less than 6 years] and then left the US for [more than 1 year], now an employer has filed a cap-exempt H-1B petition for me.  Do I have a full 6 years of H-1B time now?

No.  The cap-exempt petition filed will recapture the remainder of the 6 years of H-1B time you have.  In order to “reset” the clock, an employer would have to file a regular cap petition (entering the lottery again) after you have been outside of the US for more than one year. 

  1. My STEM OPT expires [date], which is when my employer will file an H-1B petition for me, do cap-gap protections apply in my case?

As long as your OPT does not expire before the H-1B petition is filed, you should qualify for cap-gap protection. 

  1. How long does an H-1B change of employer case take with regular processing?  Can I upgrade to premium processing later?

At this time, USCIS is taking in the neighborhood of [6 months] to adjudicate H-1B cases with standard processing.  Provided there is no suspension of premium processing, you should be able to upgrade at a later date. 

  1. If I have an H-1B amendment pending, can I still file for a change of employer?  Does the new employer need to be notified about my pending amendment?

If your I-94 is valid, you should be able to file an H-1B transfer even if you have an amendment pending.  There's no need to notify your [potential] new employer about the pending amendment.  However, you should consult an attorney just to be sure about the facts of your specific case. 

  1. I have been in H-1B status for 5 years (having changed from F-1) and have not left the US at all in this time, so I don't have a valid H-1B visa “stamp.”  Will there be a problem if I seek a stamp now?

Since your H-1B petition was just a change of status and not sent for consular processing, it is not unusual for you not to have a “stamp.”  The “stamp” is a travel document and not necessary for H-1B status—the delay in seeking a “stamp” for travel purposes should not make any difference. 

  1. Can I really start working with a new employer as soon as an H-1B transfer is filed on my behalf?  Are there any risks to this?

While it's true that you can immediately begin working with the new employer upon their filing, the risk is that USCIS may deny your petition for a change of employer and you would be left without any valid status. 

  1. My initial H-1B status was obtained via a master's cap petition (even though I graduated from a for-profit university) and now USCIS has issued a notice of intent to deny on my latest H-1B petition (based on the cap issue), what can I do in this situation?

It's very likely that your current H-1B petition will be denied, but there are potential arguments to be made and you should consult with an attorney about the specifics of your case.

  1. If my H-1B extension is denied, do I have to stop working immediately or can I continue to work through the end of my current H-1B status?

You can continue to work until your H-1B status expires, extension denial notwithstanding. 

  1. Can I attend school full-time while in H-1B status?

As long as you maintain your employment as described by the approved H-1B petition, there should be no problem with pursuing your education as a full-time student.

  1. If my H-1B was filed with regular processing, can I upgrade to premium now?  Will this make it more likely I'll receive an RFE?

If premium processing is available, there should be no problem with “upgrading” any time after you've filed.  Our firm does see more RFEs issued on petitions filed with premium processing due to the time constraints placed on USCIS making a decision in such cases. 

  1. I'm in H-1B status with a valid stamp, if I change to H-4, can I still travel outside of the US and re-enter on my H-1B stamp?

Once you change to H-4 status, you cannot use your H-1B stamp for travel purposes (except to Canada or Mexico for under 30 days).  You will need to obtain an H-4 stamp to properly return to the US on H-4 status. 

  1. Can a single H-1B petition cover working at two different sites on two different projects?

Yes, the H-1B employer can file an LCA for multiple worksites and different projects and once that is approved, such an H-1B petition can be filed.  An itinerary will usually be required accounting for where the beneficiary will be and when.

  1. My employer filed an H-1B amendment for me 2 months after I moved to a new employer, is this cause for concern?

If by “new employer,” you mean a new end client/new job site (but ultimately your employment agreement/the right to control remains with the H-1B employer who filed the amendment in question), then it is clear your employer should have filed the amendment prior to your relocation (unless the new end-client is within normal commuting distance from your original job-site).  If, however, “new employer” means you have an approved H-1B transfer, your old employer filing an amendment has no impact on you. 

  1. Do I need to be paid while on maternity leave in H-1B status?

H-1B employees are entitled to the same rights as other workers, under current US law maternity leave can be unpaid, so you will not be violating status if your leave is unpaid. 

  1. Is it okay to collect gambling/lottery winnings while on H-1B status?

Winning is not the issue, provided you're not gambling enough for it to qualify as another job, there's no issue with occasionally gambling.

  1. Do I need a new visa stamp for traveling once my H-1B amendment is approved?

Unless your current “stamp” is expired, you can still travel on it.  An H-1B amendment doesn't require you to get a new stamp.    

  1. I recently moved to a new client but an RFE was issued for my pending H-1B cap petition asking for a client letter, can I submit a letter from the client I'm at now?

No, the RFE from USCIS is seeking a letter from the end-client noted in your original filing.  If you send a letter from the current client, this will most likely result in a denial.

  1. I'm about to max out of my 6 years of H-1B time but due to [compelling medical reasons: actual Q states beneficiary has premature newborn that must remain in the ICU] I'm unable to travel/leave the country.  Can my H-1B status be extended for medical reasons?

The 6-year maximum for H-1B status is set by law and there are no exceptions for humanitarian reasons.  People in situations like yours, truly unable to travel, may attempt to apply for a change of status to B-1/B-2, but be aware that you won't be allowed to work. 

  1. I was laid off from my H-1B employment and have filed for a change to B-2 status, if I find another job can I go back to H-1B by having that employer file for me with premium processing?

Most likely your return to H-1B status would have to come from a petition sent for consular processing—the immigrant intent of H-1B status makes the transition from B status problematic and unlikely to be accepted as a simple change of status. 

  1. My H-1B is pending and I'm on cap-gap, can I complete a master's degree at another university and will the new SEVIS number affect the processing of my H-1B case?

Your SEVIS record is still active on cap-gap, so it will simply be transferred to the new university (no new number issued) when your master's program starts.  As far as your H-1B case, this will only be reflected as you continuing to maintain valid F-1 status.

  1. I'm H-1B and signed a 2-year commitment with my current employer, but I am not happy and wish to change employers.  Will USCIS deny my transfer request because of the offer letter I signed?

USCIS does not get involved with employment-related contractual disputes.  While H-1B employers are not allowed to penalize beneficiaries for wanting to seek other employment, you should consult with an attorney who specializes in employment law as to whether the offer letter you signed is truly binding. 

  1. I have an approved H-1B petition for full time employment and another for a concurrent part-time position, should I include both on my visa application?

The visa will only be granted on the basis of one petition, but the consular officer needs to be made aware of the other.

  1. I'm an H-1B employee at company A and have a transfer pending for company B.  After approval, can I remain with company A for 6 months more before moving to company B?

While it's possible to remain with company A (so long as they do not revoke their H-1B approval) and transfer to company B after 6 months…this is not a good idea for company B (and if they have legal counsel, they will probably be advised not to accept this course of action on your part) and may cause problems for you when seeking later status adjustments, visa applications, etc..

  1. How far in advance can I apply for an H-1B extension?

H-1B extensions can be filed 6 months prior to the requested start date. 

  1. I will be laid off by my H-1B employer in 30 days, what do I do if I can't find a job before I'm laid off and USCIS is notified?  Is it possible to change to B or F status?

Your H-1B status will end the last day of your job, filing for change of status will require you to be in current valid status.  I would recommend that you consult with an attorney further about the specifics of your case. 

  1. December of this year will make 6 years of H-1B time for me, if I leave the US prior to October 1, will I be able to apply for a “fresh” H-1B in next year's lottery?

No.  You need to be outside of the US for a full year at the time that the petition is filed on your behalf in the lottery to be eligible for 6 more years of H-1B time.  Next year's lottery will start in April, it's already too late for you at this point. 

  1. My H-1B was selected in the lottery but I received an RFE based on the client letter and the case was denied.  Is there an appeals process?  Or can I apply for H-1B with a new employer without entering the lottery?

You can file an appeal or a motion to re-open/reconsider within 30 days of the denial.  Barring a successful outcome there, you are not cap-exempt and will likely have to re-enter the lottery next year with a new H-1B petition.

  1. My employer filed an H-1B extension for me prior to expiration of my I-94.  After that I received approval on an I-140, do I need to wait for the extension to be approved before filing an I-485?

To gain I-485 approval, there cannot be more than a 180-day gap between the filing and an approved status period.  So, while you can file the I-485 with the H-1B extension pending, depending on when your I-94 expired, it's possible you should wait for the extension to be approved rather than risk denial based on exceeding the 180-day period. 

  1. I received an H-1B visa stamp from my old employer, but that passport is expired now, can I still travel on this stamp or do I need to go for stamping again?

If the stamp in your expired passport is still valid you can use that by simply presenting the old passport along with your current passport and the receipt notice for your new employer's approved H-1B.  

Contact us today at 212-571-6002 for more information.

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