Applying for the H-1B Visa is a complex process that both employers and employees have to navigate with utmost care so that the application is not given an RFE or denied, which can be costly and time consuming. Applicants need to be mindful of certain pitfalls that are littered throughout the application process. The following are some of the most common questions that are asked at the offices of Keshab Raj Seadie P.C. on a daily basis and we have compiled some of the most prominent ones here to make it easier to navigate these questions.

What is an H-1B Cap? How does it affect my Visa application?

There is an annual H-1B cap, which limits the number of new H-1B visas available to foreign workers looking to come into the US. Currently the H-1B cap count is set at 65,000 new visas per year. However, applicants need to be mindful that there are 6,800 visas that are set aside for Singapore and Chile Free Trade Agreement filings. Also, there are 20,000 additional visas set aside for individuals who have earned a Master's or higher degrees from U.S. based higher education institutions. Therefore, there are only 58,200 new visa available each year plus 20,000 for those who have attained higher education.

Every year U.S. Immigration Law grants 65,000 visas for Regular Caps. Chile and Singapore Free Trade Agreement Cap is granted 6,800 visas which are included in the Regular Caps. Apart from this, unused Regular Caps from the previous fiscal year are added to the current fiscal year. To calculate the cap amount, one may use this equation: Current Fiscal Year (65,000) &- Chile and Singapore Free Trade Agreement Cap (6,800) + Unused H-1B Caps from previous Fiscal Year(X) + Petitions that were Denied, Rejected or Withdrawn(X) = Annual Cap for Current Fiscal Year

Due to the low number of H-1B visas available each year, a visa applicant needs to be mindful of the following:

  • USCIS starts accepting 2015 H-1B Visa Petitions on April 1st, 2014.
  • The USCIS fiscal year starts on October 1st and ends September 30th. Accordingly, fiscal year for 2015 would start on October 1st, 2014 and end on September 30th, 2015.
  • Though there is no deadline as to when the H1Bs should be submitted by, once the H1B Cap is reached, USCIS will stop accepting cases for FY 2015. So in the case of FY 2014, H-1B cap was reached within the first 5days of the new filing season meaning the USCIS stopped accepting applications within the first week.
  • When a Cap is reached within the first 5 days of the new filing season, all petitions may be subject to a computerized random selection. They will first conduct a selection on the Masters Degree Cap. Masters Degree cases that were not selected will then be put through another random selection with the Regular Cap.
  • In case that the Cap was reached after the first 5 day period and they received adequate amount of petitions, then no Lottery will be conducted. If they receive more than the sufficient amount of petitions, a lottery will be conducted.
  • If in any circumstance the Advance Degree Cap is reached and Regular Cap is still available, all eligible petitions will be counted in with Regular Cap.
  • An individual carrying a U.S. Master's degree or higher will qualify for Advanced Degree Cap. An individual carrying a U.S. Associates or Bachelor's or Master's degree of higher outside of U.S. does not qualify for this cap.
  • The petitions counted per fiscal year only include the petitions that were submitted to USCIS prior to final receipt date and which are either pending or already approved. Petitions that were denied, rejected or withdrawn with not be included in the Cap Count
  • Once the H-1B Cap is reached, there are no chances of you to get the H-1B Visa till the next fiscal year. However, you may be eligible for other working visas depending on your current condition. You should consult an immigration attorney experienced in the field to shed light on the matter.
  • Candidates who are not currently on an H-1B Status are subject to H-1B Cap/Quota. These candidates cannot start work until or after the start of a new fiscal year which is October 1st. In order for a candidate to start work in the new fiscal year, the employer must file an H-1B Petition starting from April 1st. There are yet chances that the candidate may not start work if the H1-B Cap is reached and the candidate's petition was not selected. In this case, the employer must file a new H-1B Petition for the new fiscal year.
  • Once the Cap is reached there are no chances of it to be opened again. Only a fix number of Caps are granted per fiscal year and it is not subject to change.

Unfortunately, there is no guaranteed process to avoid the H-1B Cap for new applications. However, there are few precautions that you may take to minimize this possibility. First, you must complete and submit the H-1B Petition at your earliest convenience. USCIS does not accept any petitioner six months prior to the start of new fiscal year. Since the fiscal year starts on October 1st, you must submit the petition to USCIS on April 1st. This reduces the risk of not being selected prior to H1B Cap has reached. Along with submitting the petition on time, you must make certain that you submit all valid documents along with processing fees. An incomplete file will be sent back to the employer. Another option you may consider is to try to obtain some other nonimmigrant visa. You must consider an experienced immigration attorney in such critical situations.

I am graduating from a master's program in the U.S. this coming May. Can I apply for the masters' cap instead of the regular cap?

Unless you have completed your course of study you may not apply for Master's Cap prior to graduating. This applies to those students who may be eligible for graduation during the fall, winter semester but need to wait until the spring semesters to receive their diplomas. Once you have completed the credit course load and can be considered to hold a Master's you may apply for the Master's cap instead of the regular cap. However, if you need to complete classes past April 1st, you will only qualify for the regular cap unless you apply for a cap exempt position.

When applying for Master's cap without your diploma, it is advisable to speak with your registrar's office in order to request a notice of matriculation stating that you have completed your course load and only need to wait for your diploma. This way your application will not be denied based on the fact that you do not have your diploma. You will need to submit a copy of your diploma at your earliest convenience.

Is there any way to avoid the H-1B cap?

Only new H-1B Status Petitions filed for employers in the U.S. and abroad are counted in the H-1B Cap. All change of status petitions such as from F-1 to H-1, H-4 to H-1, TN Workers to H-1 are counted in H-1B Cap. However, if you are filing for a H-1B change of employer, renewal, extension are not counted towards the current fiscal year cap.

  • The H-1B Cap is not subject to any employees currently in H-1B Visa Status. Your Employer can file an H-1B Renewal/Extension Petition to extend your stay without being limited in the H-1B Cap/Quota.
  • The H-1B Cap is not subject to any petitions requesting a change of employer provided that they are currently in a valid H-1B Visa Status. Change of Employer or change in any terms of employment will not be affected by the H-1B Cap.
  • H-1B Petitions requesting Change of Employer, Renewal/Extension and Amending Petitions are not counted in this category. H-1B Petitions filed by exempt employers such as colleges, universities, selected nonprofit organizations and government research organizations are not subject to the H-1B Cap. These H-1B Petitions can be filed any time of the year and are not limited to H-1B Cap being reached.

One other key item of note is that H1B Petitions filed by universities, university affiliated nonprofit entities, and nonprofit or government research organizations are not subject to H-1B Cap/Quota. If an employee accepts an offer from any of these exempt employees, he or she may be able to start work prior to start of the fiscal year, which is October 1st. If the employee chooses to work for a private employer, he or she will then be subject to the H-1B Cap and would have to wait to start work on October 1st provided that the employee was selected in the H-1B Cap.

Why is H-1B application process taking so long? Is there any way for me to expedite the process?

Every consular office and every consular officer is different, they all have different caseloads and processing times, therefore the wait can be longer or shorter dependent on many factors. How complete your application is, and whether evidentiary documents are missing could also delay your application. The only way to expedite the process is to ask your employer to pay for premium processing.

Premium Processing Service is an optional service that your petitioner (the employer) may apply for depending on the complexity of the case and the petitioner's needs. Beneficiaries cannot file for Premium service. If an employer decides to file this way, a premium processing fee of $1,225 must be enclosed along with the application Forms. Premium processing service does NOT guarantee that your application will be approved; it only guarantees a decision within 15 days from receipt date of the processing fee. This means that depends on the case, you will either receive an approval notice, denial notice, Request for Evidence Notice, Notice of Intent to Deny or Notice of investigation for fraud or misrepresentation within 15 days. If under any circumstances, USCIS failed to render a decision within the 15 days limit, they will refund the full Premium Service fee.

Other then the premium processing service, USCIS will only expedite a process if the case falls under any of the following situations: Extreme Emergency, Severe financial loss to a company or individual, USCIS error, Department of Defense or national interest situation, Humanitarian Situation.

What is H-1B? How do I know if I qualify for an H-1B occupation?

H1B visa is a category of nonimmigrant worker visa designed to allow foreign citizens to work in the US temporarily in specialty occupations. These visas are available for skilled workers who hold a relevant four-year college degree (either a Bachelor's degree from a US institution or the equivalent from a foreign institution) or who have equivalent work experience. Fashion models of distinguished merit are also eligible for H1B visa.

According to the Foreign Affairs Manual, this is what Consular Officers are looking for when they interview prospective H-1B applicants:

  • The prospective employer must have already filed a labor condition application (LCA) with the Department of Labor (DOL) prior to the H-1B application.
  • The filing of a labor condition application does not constitute that the occupation in question is a specialty occupation.
  • DHS is responsible for determining whether the application involves a specialty occupation and whether the applicant for whom H-1B status is sought qualifies to perform services in that occupation.
  • A specialty occupation requires that the employee has attained a bachelor's or higher degree in the specific specialty (or its equivalent) for entry into the occupation.
  • A worker seeking a position in a specialty occupation must have completed such a degree or have experience in the specialty equivalent to the completion of the degree and have expertise in the specialty through progressively responsible positions relating to the specialty.
  • Evidence of employment/job training that the beneficiary met the certification's minimum employment and job training requirements, if any are prescribed, as of the date of the filing of the labor certification application.
  • Evidence of education and other training with evidence that the beneficiary met all of the certification's post-secondary education and other formal training requirements
  • A nonimmigrant must be coming to fill a position that is temporary in nature.

What is an LCA?

An LCA stands for a Labor Condition Application. An employer must submit a LCA to the U.S. Department of Labor in order to receive an H-1B Approval. USCIS will not approve an H-1B Petition if an LCA is not approved by the U.S. Department of Labor.

How soon can I start working after I have filed my H-1B?

If you are filing a new H-1B application that is subject to the H-1B cap, you may not begin work when the application is filed. You must wait for your application to be approved. Once the H1B Petition is approved, you can start work according to the Employment Period given on the H1B Approval Notice. For FY 2014, Employment period must be after October 1ST, 2013. If your petition was filed from overseas, you are required to get H1B Visa stamping in order to enter U.S. on H1B Visa. If your petition was filed as a change of status, then you are not required to travel back for visa stamping.

If you are currently working in a valid H-1B status and a prospective company files a valid H-1B transfer, you may start work with a new employer legally as soon as USCIS receives the H-1B petition from your new company. Once the new H-1B petition is approved as change of employer and your I-94 card updated on the approval notice, you may keep working for the new employer until the expiration date on the I-94. However, if your application is approved without I-94 you will need to stop working immediately, leave the US to apply for H-1B visa in the home country and be readmitted into H-1B status to continue legally working.

If you are currently an F-1 student working with a OPT permit, an L-1 transferee, or other temporary employment visa, you may not begin working with your H-1B employer until after your application has been approved. If your status has not been terminated with USCIS, then you may continue to work at your current company until the H-1B visa is approved. Otherwise, you may be required to leave the country and be readmitted.

I am an F-1 Student working with a OPT permit, can I apply for H-1B to keep working?

The answer is both yes and no. As long as an applicant can meet the minimum requirements for H-1B, and the company you intend to work for is willing to petition for you, then, you can apply for H-1B. However, it is important to keep in mind that if your H-1B application was not filed in a timely manner then you may not continue to work until your H-1B petition has been approved. At the expiration of your OPT or F-1 academic program you must stop working, unless your H-1B has been approved. F-1 visa holders who are filing for H-1B for the first time need to keep in mind that they are not exempt from the H-1B cap unless they are petitioning with a University or a Non-profit cap exempt organization. It is very important that F-1 students need to time their applications very carefully.

If the H-1B petition filed for change for status is within the 60 day grace period given post OPT, then you can remain in the US in legal status for the period between the completion of OPT and the beginning of your H-1B eligibility. However, you will not legally be able to work in that time frame until your H-1B has been approved. Should you not be able to file a H-1B cap case prior to the end of your F-1 Status and your grace period has expired, you must maintain status by enrolling in another program or depart the US if another option can't be found. It is very important to contact a knowledgeable attorney to discuss the particulars of each individual case. There may be other options available you are not aware of.

I am in the process of transferring my H-1B from my old employer to a new one, why is the transfer taking longer than my initial H-1B application?

H-1B visas are employer specific visas; therefore, an H-1B visa transfer will be processed as if it were a new H-1B application. So the time frame that is expected to transfer an application should be about the same as that of a new application. The only difference between processing a new application and that of a transfer lie in the fact that a transfer application is not subject to the H-1B cap. You have already been counted in the cap and will not need to be counted again. It is important to keep in mind that every Consular Officer is different, depending on his/her caseload your application can take a different amount of time. If you are in a hurry to receive your H-1B approval, you may pay the premium processing fee to have your application expedited and you will receive notice within 15 business days.

I formerly had H-1B status, I changed my status to H-4, now I have found a new job do I have to apply for a new H-1B application?

Yes and no. Because H-1B petitions are employer specific, every H-1B petition, whether it is a change of status, or change of employer is processed as a new petition. However, because you have not left the country for a period of one year, you would be eligible to apply for a change of status and forgo the H-1B cap. This limits you to the remaining time left on your previous H-1B application. Otherwise you may leave the country for a period of 1 year and reenter to start the 6 year clock again.

What is an H-1B transfer?

The H1B transfer bill enables valid H1B visa holders to change employers upon the filing of a new petition as long as the individual is in lawful status at the time of filing and has not engaged in any unauthorized employment since his or her last lawful admission. There is no need for a new H-1B stamp, your visa will be transferred automatically.

Here are some key points of knowledge for H-1B transfers:

  • First and foremost, please know what you cannot submit an H-1B Transfer. Since an H-1B is a petition, your employer must be the one to submit it. Here are the documents critical for the approval of H-1B Transfer:
  • Copy of educational documents including degrees and transcripts (which make sure to obtain translation documents are in foreign language
  • Copy of educational evaluation (if your college degree was obtained out of the U.S.)
  • Copy of all existing immigration work such as H-1B Petitions, Forms, LCAs, Supporting letter etc.
  • Form I-485 & I-140 (if applied)
  • Copy of three recent paystubs
  • There is no deadline as to when you can start your new employment. It is solely up to you. For your safety, please start the new employment prior to expiration or termination of the previous employment.
  • H-1B transfer petitions are not subject to H-1B Cap. However, if you are transferring from a H-1B from a Non-Profit Organization to a H-1B Cap Company, you will be subject to the Cap.
  • It is not required for you to tell your current employer about your transfer and there is no way to find out.
  • You can transfer as many times as you want. Do bear in mind that you are still subject to the 6 year H Limit. You will be required to leave the U.S. after complete 6 years on any H status.
  • The processing time for an H-1B transfer varies on the petition filed. If all the required documents are submitted in the correct format, it usually takes 4 -8 weeks. You may check the USCIS Website as the processing times depend upon the location of the employment and the work load at the USCIS service center where the file was submitted.

For a successful H-1B Visa Transfer, please make sure you have followed all instructions and provide on the documents that are required. Delay in submitting the requirement documents can cause denial in one's H-1B Petition. Please seek an experienced immigration lawyer for counsel to submit an H-1B Transfer.

I am currently working on H-1B with Company A, and have my H-1B transfer pending with Company B. However, I am not sure if I want to work for Company B anymore. Can I stay with Company A?

Yes, you may stay with Company A even after the approval of Company B as long as Company A has not revoked your H-1B application with USCIS. You may have multiple H-1B visas but you may only work for one company at a time. This is why we tend to advise H-1B applicants not to leave their previous jobs prior to having their transfer applications approved. If you later decide not to leave a position, but the employer has terminated your H-1B with USCIS, then you will have to depart the U.S or maintain your status by changing it to either H-4 or otherwise.

What about my Spouse and Children? Are they allowed to come to the US with me?

H-4 is a nonimmigrant visa that permits dependents of an H-1B Visa Holder to enter into the U.S. With such visa, the spouse and children are considered dependents and can travel to the U.S. and stay with the H-1B Visa holder as long as he/she is in valid status and is legally working for the sponsoring company.

The H-4 Visa provides that:

  • Dependents of an H-1B Visa holder are considered either spouse or unmarried children under the age of 21 yrs to be qualified for H-4.
  • An H-4 visa holder is allowed to enter the U.S. along with or after the spouse or parent holding the H-1B Visa.
  • A dependent can stay in the U.S. as long as the principal H-1B Visa holder is in status. If the H-1 of the principal immigrants expires or if the principal is laid-off or terminated from the employment, he or she loses the H-1 visa status and so does the dependent.
  • This is a nonimmigrant visa and cannot be used as permanent stay in the U.S.
  • H-4 permits travel in and out of U.S. as long as the visa is valid.
  • An H-4 Visa holder is not permitted to work in the U.S.
  • H-4 visa holder is permitted to attend school in the U.S. provided that he or she is in valid status.

My wife is currently here on H-4 status, she was recently offered a job when can she start?

Under no circumstances are H-4 dependents allowed to work for pay. However, H-4 dependants are allowed to work if there is no compensation. For example if your wife is offered an internship with no compensation other than credit, she may be allowed to take then position. Another example may be if your wife is volunteering at a local shelter, or library.

If your wife is offered a job that is willing to sponsor her for an H-1B visa, then she would be able to transfer her H-4 status to that of H-1B when her sponsor company files the appropriate paperwork with the USCIS.

How does H-1B Status affect my travel to and from the US?

When an immigrant worker is on an H-1B Visa, there are few guidelines he/she must follow when it comes to entering and departing the U.S. Violating these guidelines may put an H-1B worker at risk of losing his/her valid status.

If you are applying for H-1B Petition as change of status, traveling outside the U.S. will automatically discard your request to change to H-1B status. If this petition is later approved by USCIS, you will then be required to apply for an H-1B Visa at the U.S. Consulate prior to entering into the U.S. with H-1B status. It is not advisable to travel out of U.S. while an H-1B Transfer is pending.

If you are applying for an H-1B Extension, you may travel outside the U.S. without the need to apply for an H-1B Visa. However, you must notify the USCIS to mail you the new Form I-797, Notice of Approval overseas. It is required that you use the latest approval notice will entering the U.S. so that the I-94 issued also can be extended.

If you are applying for an H-1B Transfer, you are permitted to travel outside the U.S. provided that you have a valid passport and H-1B Visa along with Form I-797, Approval Notice of H-1B. If your H-1B visa expires prior to your entry in U.S., you will be forced to stay abroad until your new visa is approved.

You must not travel during the 240 day automatic extension of work authorization after the current H-1B period has expired. Travelling during this time will require you to stay abroad until the extension is approved and apply for a new visa to be readmitted into the U.S. in H-1B status.

During a the H-1B renewal time frame traveling is dependent on processing time. Processing time depends of where in U.S. you are located and where was the H-1B Petition filed. You can check the processing times on the USCIS website according to where the petition was submitted. You can travel the process is pending, however, it is advisable that you take few precautions prior to leaving the U.S. If you don't show the latest Approval Notice at the date of re-entry, an I-94 will be issued with the previous expiry date. Hence, you must notify USCIS to have the new Approval Notice mailed sent to you overseas.

These are just recommended guidelines for traveling with an H-1B visa that is pending, or in the process of being transferred. It is most advisable to speak with an attorney regarding each individual case because no one case is the same and with more information, an attorney may better assist any individual based on their needs.

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