Applying for the H-1B visa is a multifaceted process that requires careful navigation by both employers and employees to avoid the risk of receiving a Request for Evidence (RFE) or having the application denied. This can lead to significant costs and time delays. To help ease the process, we have compiled a list of frequently asked questions that we encounter at the offices of Keshab Raj Seadie P.C. on a daily basis. These questions aim to provide clarity and guidance, making it easier for applicants to navigate through potential pitfalls during the H-1B visa application process.
What is H-1B cap and how does it impact my application for a visa?
The H-1B cap refers to the annual numerical limit set by the U.S. government on the number of H-1B visas that can be issued each fiscal year. The regular H-1B cap is set at 65,000 visas, while an additional 20,000 visas are reserved for individuals with U.S. Master's degrees or higher from qualifying institutions.
The H-1B cap significantly affects your visa application because it creates competition among employers and individuals seeking H-1B visas. Once the H-1B cap is reached, any further applications are subject to a lottery selection process. This means that if the number of H-1B applications exceeds the available visas, a random lottery is conducted to select the petitions that will move forward for processing.
If your H-1B petition is selected in the lottery, you have the opportunity to proceed with your application and potentially obtain an H-1B visa. However, if your petition is not selected, you will not be eligible for an H-1B visa that fiscal year. In such cases, you may need to explore alternative visa options or consider applying for an H-1B visa in subsequent years.
As there is a small number of H-1B visas available, an applicant must remember:
- Starting from April 1st, 2023, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B visa petitions for the fiscal year 2024. The fiscal year for 2024 spans from October 1st, 2023, to September 30th, 2024.
- While there is no specific deadline for submitting H-1B petitions, once the H-1B cap for the fiscal year 2024 is reached, USCIS will no longer accept any more cases for that year.
- If the cap is reached within the first five days of the filing season, a computerized random selection process will be conducted. Initially, a selection will be made for the master's degree Cap. Any Master's Degree cases that were not selected will then be included in another random selection along with the Regular Cap petitions.
- However, if the cap is reached after the first five-day period and USCIS has received an adequate number of petitions, no lottery will be conducted. Only if the number of petitions exceeds the available cap will a lottery be conducted.
- In situations where the Advanced Degree Cap is reached while the Regular Cap is still available, all eligible petitions will be counted together with the Regular Cap.
- It is important to be aware of these processes and timelines when submitting your H-1B visa petition to maximize your chances of selection. Working closely with an immigration attorney or knowledgeable professional can provide valuable guidance throughout the application process.
- Individuals who hold a U.S. Master's degree or higher qualify for the Advanced Degree Cap for H-1B visas. However, those with an associate's, bachelor's, or master's degree obtained outside the U.S. do not qualify for this cap.
- The H-1B Cap count includes only the petitions that were submitted to USCIS before the final receipt date and are either pending or approved. Petitions that were denied, rejected, or withdrawn are not included in the Cap count.
- Once the H-1B Cap is reached, it becomes unlikely for an individual to obtain an H-1B visa until the next fiscal year. However, there may be other working visa options available depending on the individual's circumstances. It is advisable to consult with an experienced immigration attorney to receive proper guidance in such cases.
- Candidates who are not currently on H-1B status are subject to the H-1B Cap or quota. They are unable to commence work until or after the start of the new fiscal year, which begins on October 1st. To enable a candidate to start work in the new fiscal year, the employer must file an H-1B petition starting from April 1st. However, even in this case, there is a possibility that the candidate's petition may not be selected if the H-1B Cap is reached. In such instances, the employer would need to file a new H-1B petition for the subsequent fiscal year.
- Once the H-1B Cap is reached, it remains closed for the rest of the fiscal year. The number of available caps is fixed and does not change throughout the year.
- However, there are precautionary measures you can take to minimize the risk of your application being denied due to the Cap being reached.
- First and foremost, it is crucial to complete and submit your H-1B Petition as early as possible. Keep in mind that USCIS does not accept petitions more than six months before the start of the new fiscal year. Since the fiscal year commences on October 1st, it is advisable to submit your petition to USCIS on April 1st to maximize your chances of being selected.
- In addition to timely submission, ensure that you provide all the required and valid documents along with the necessary processing fees. Any incomplete files will be returned to the employer, potentially jeopardizing your application. It is essential to diligently gather and include all the requested information to ensure a complete and accurate petition.
- Another potential option to explore is to consider alternative nonimmigrant visa categories that may be suitable for your circumstances. Consulting with an experienced immigration attorney is highly recommended in such critical situations. They can provide valuable guidance and help you navigate through the available options to determine the most appropriate course of action for your situation.
Why is the H-1B application process so lengthy and how do I speed it up?
In order to expedite the application process, you must ask your employer to pay for premium processing.
Premium Processing Service is a service that beneficiaries can apply for with the help of an employer. This service does not promise an approval but ensures that a decision will be made within fifteen days. Depending on the circumstances of the case, you will get an approval notice, denial notice, Request for Evidence Notice, Notice of Intent to Deny or Notice of investigation for fraud or misrepresentation within fifteen days. Other than this fee, USCIS will only expedite their approval or denial process if your situation is an Extreme Emergency, Severe financial loss to a company or individual, USCIS error, Department of Defense or national interest situation, Humanitarian Situation.
Qualifications for H-1B?
Foreign nationals can temporarily work in the US in specialty occupations using an H-1B visa, a type of nonimmigrant worker visa. These visas are offered to skilled workers with an appropriate four-year college degree (either a bachelor's degree from a US institution or the equivalent from a foreign institution), as well as any necessary work experience. A unique H-1B visa is also available for fashion models.
Based on the guidelines outlined in the Foreign Affairs Manual, Consular Officers consider the following factors during the interview of prospective H-1B applicants:
- Labor Condition Application (LCA): The prospective employer must have filed an LCA with the Department of Labor (DOL) before submitting the H-1B application.
- Specialty Occupation Determination: Filing an LCA does not automatically establish the occupation as a specialty occupation. The Department of Homeland Security (DHS) is responsible for determining whether the proposed position qualifies as a specialty occupation and if the applicant meets the qualifications to perform services in that occupation.
- Qualifications for Specialty Occupation: To qualify for a specialty occupation, the applicant must have obtained a bachelor's degree or higher in the specific field, or possess equivalent education and experience. The applicant should have expertise in the specialty through progressively responsible positions related to the field.
- Certification Requirements: Consular officers review evidence of employment and job training to ensure that the beneficiary meets the minimum employment and training requirements specified in the labor certification application. They also verify if the applicant has fulfilled the post-secondary education and other formal training requirements.
- Temporary Nature of Position: The applicant must be coming to fill a position that is temporary in nature, aligning with the requirements of the H-1B visa category.
Describe an LCA.
LCA is a Labor Condition Application. An employer must submit an LCA to the U.S. Department of Labor to be able to obtain a H-1B Approval. If an LCA has not been approved by the U.S. Department of Labor, then USCIS will not approve an H-1B Petition.
When can I begin working after my H-1B is filed?
If you are filing a new H-1B application subject to the H-1B cap, you must wait for your application to be approved before you can start working. The Employment Period specified on the H-1B Approval Notice will determine when you can begin work, and for FY 2024, it must be after October 1st, 2023. If your petition was filed from overseas, you need to obtain an H-1B visa stamp to enter the U.S. on an H-1B visa. However, if your petition was filed as a change of status, you are not required to travel back to your home country for visa stamping.
If you are currently in valid H-1B status and a prospective company files a valid H-1B transfer, you can legally start working for the new employer as soon as USCIS receives the H-1B petition. Once the new H-1B petition is approved and your I-94 card is updated with the approval notice, you can continue working for the new employer until the expiration date on the I-94. However, if your application is approved without an I-94, you must stop working immediately, leave the U.S., apply for an H-1B visa in your home country, and be readmitted into H-1B status to continue working legally.
If you are currently an F-1 student working under OPT (Optional Practical Training), an L-1 transferee, or hold another temporary employment visa, you cannot begin working with your H-1B employer until your H-1B application is approved. If your status has not been terminated by USCIS, you can continue working at your current company until the H-1B visa is approved. However, if your status has been terminated, you may be required to leave the country and be readmitted after the H-1B visa is approved in order to begin working.
Can I apply for H-1B to continue working if i am an F-1 Student working on an OPT permit?
If an applicant meets the minimum requirements for an H-1B visa and the intended employer is willing to petition for them, they can apply for an H-1B. However, it is crucial to note that if the H-1B application was not filed in a timely manner, the applicant may not continue working until the H-1B petition is approved. When the OPT (Optional Practical Training) or F-1 academic program expires, the applicant must cease working unless their H-1B has been approved. It's important to remember that F-1 visa holders are generally subject to the H-1B cap unless they are petitioning with a university or a non-profit cap-exempt organization. Therefore, F-1 students need to carefully time their applications.
If an H-1B petition for a change of status is filed within the 60-day grace period following the completion of OPT, the applicant can remain in the US in legal status during the period between the completion of OPT and the start of H-1B eligibility. However, they will not be allowed to work legally during this time until the H-1B is approved. If it's not possible to file an H-1B cap case before the end of the F-1 status and the grace period has expired, the applicant must maintain status by enrolling in another program or depart the US if no other viable option is available. It is crucial to seek guidance from a knowledgeable attorney to discuss the specific details of each individual case, as there may be alternative options available that the applicant may not be aware of.
Why is the H-1B transfer taking longer than my initial H-1B application? I am in the process of moving my H-1B from my old employer to a new one.
Since H-1B visas are employer-specific visas, a transfer of an H-1B visa will be handled in the same way as a new H-1B application. Therefore, the anticipated time frame for transferring an application should be similar to that of a new application. Processing a transfer application differs solely from processing a new application in that a transfer application is not subject to the H-1B cap. It's crucial to keep in mind that each consular officer has a unique workload, thus the processing time for your application may vary. You can pay the premium processing fee to have your transfer application processed more quickly and have a decision made within 15 business days.
If I previously had H-1B status and then switched to H-4 after finding a new employment, do I need to submit a fresh H-1B application?
No and yes. Every H-1B petition, whether it is a change of status or change of employer, is processed as a new petition since H-1B applications are employer specific. You would be qualified to petition for a change of status and avoid the H-1B cap because you haven't left the country for a year. This restricts you to the amount of time still allotted for your prior H-1B application. If not, you can leave the nation for a year before coming back to restart the 6-year clock.
What is an H-1B transfer?
The H-1B transfer allows individuals who hold a valid H-1B visa to change employers by filing a new petition, as long as they are in lawful status and have not engaged in unauthorized employment since their last lawful admission. There is no need to obtain a new H-1B stamp, as the visa will be transferred automatically.
Here are some important points to consider regarding H-1B transfers:
- Only your employer can submit the H-1B transfer petition on your behalf. You cannot file the transfer petition yourself.
- The following documents are crucial for the approval of an H-1B transfer:
- Copies of educational documents, including degrees and transcripts (if they are in a foreign language, make sure to provide translated documents)
- Copy of educational evaluation, if your college degree was obtained outside of the U.S.
- Copies of all existing immigration-related documents, such as previous H-1B petitions, forms, Labor Condition Applications (LCAs), and supporting letters
- Forms I-485 and I-140, if you have applied for them
- Copies of three recent pay stubs
There is no set deadline for starting your new employment after an H-1B transfer. The timing is solely up to you, but it is recommended to begin the new employment before the expiration or termination of your previous employment for your own safety.
H-1B transfer petitions are not subject to the H-1B Cap, except in cases where you are transferring from a non-profit organization to a cap-subject company. In such cases, you will be subject to the H-1B Cap.
It is not necessary to inform your current employer about your transfer. The process can be completed without their involvement or knowledge.
You can transfer your H-1B visa multiple times, but it's important to note that you are still subject to the overall 6-year limit of H-1B status. After reaching the maximum 6 years, you will be required to leave the U.S. You may be eligible for other visa options or apply for a green card to continue your stay in the United States.
The processing time for an H-1B transfer varies depending on the filed petition. If all the required documents are submitted correctly, the process usually takes around 4 to 8 weeks. However, it's recommended to check the USCIS website for the most up-to-date processing times, as they can vary based on the location of employment and workload at the USCIS service center handling the petition.
With Company A, where I am currently employed on an H-1B visa, my transfer to Company B is still pending. I'm not sure I still want to work for Company B, though. Do I get to stay with Company A?
As long as Company A hasn't canceled your H-1B application with USCIS, you are permitted to continue working for Company A even after Company B approves your application. You are allowed to work for more than one company at once while simultaneously holding multiple H-1B visas. Due to this, we frequently advise H-1B candidates not to quit their current positions before their transfer requests have been accepted. You will either have to leave the United States or keep your status by switching to H-4 or another type of status if you later decide not to quit your job but the company has cancelled your H-1B with USCIS.
What about my partner and kids? Can I bring them to the US with me?
H-4 is a nonimmigrant visa that allows dependents of an H-1B visa holder to enter the U.S. and stay with the H-1B visa holder as long as they are in valid status and legally employed by the sponsoring company.
The H-4 visa provides the following provisions:
- Spouses and unmarried children under 21 years old qualify as H-1B dependents and are eligible for H-4 visas.
- An H-4 visa holder can enter the U.S. simultaneously with or at any time after the H-1B visa holder.
- Dependents can remain in the U.S. as long as the principal H-1B visa holder maintains valid status. If the principal's H-1B visa expires, or if they are terminated or laid off from employment, both the principal and the dependents lose their H-1B and H-4 statuses, respectively.
- H-1B and H-4 visas are nonimmigrant visas and cannot be used as a permanent residency option in the U.S.
- H-4 visa holders are allowed to travel in and out of the U.S. as long as their visas are valid.
- H-4 visa holders are not authorized to work in the U.S.
- H-4 visa holders can attend school in the U.S. as long as they maintain valid status.
My wife was offered a job on H-4 status. When can she begin working?
Dependents on H-4 visas are not permitted to work for pay under any circumstances. H-4 dependents may work even when there is no pay, though. For instance, if your wife receives an internship offer with no payment other than credit, she might be permitted to accept the position. Another illustration may be if your wife volunteers at the library or shelter in your community.
Your wife would be able to change her H-4 status to that of an H-1B when her sponsor employer submits the necessary papers to the USCIS if she accepts a job that will sponsor her for an H-1B visa.
Does H-1B Status impact my travel to and from the US?
When an individual is on an H-1B visa, there are important guidelines to follow when entering and departing the U.S. Failure to comply with these guidelines may jeopardize the validity of the H-1B status.
If you are applying for an H-1B petition as a change of status, traveling outside the U.S. will automatically invalidate your request to change to H-1B status. If the petition is later approved by USCIS, you will need to apply for an H-1B visa at a U.S. Consulate before entering the U.S. with H-1B status. It is not recommended to travel while an H-1B transfer is pending.
If you are applying for an H-1B extension, you can travel outside the U.S. without applying for an H-1B visa. However, you must notify USCIS to have the new Form I-797, Notice of Approval, mailed to you overseas. It is important to use the latest approval notice when entering the U.S. to ensure the I-94 is also extended.
If you are applying for an H-1B transfer, you can travel outside the U.S. if you have a valid passport, H-1B visa, and Form I-797, Approval Notice of H-1B. If your H-1B visa expires before your reentry to the U.S., you will need to stay abroad until your new visa is approved.
It is crucial not to travel during the 240-day automatic extension of work authorization after the current H-1B period has expired. Traveling during this time will require you to stay abroad until the extension is approved and apply for a new visa to reenter the U.S. in H-1B status.
During the H-1B renewal process, travel plans depend on processing times, which vary depending on the location of the applicant and where the H-1B petition was filed. It is advisable to check the processing times on the USCIS website for the specific filing location. While the process is pending, you can travel, but it is recommended to take necessary precautions before leaving the U.S. It is important to present the latest approval notice upon reentry to ensure an I-94 is issued with the updated expiration date. Therefore, notifying USCIS to have the new approval notice sent to you overseas is necessary.
Please note that these are general guidelines for traveling with a pending or transferring H-1B visa. It is highly recommended to consult with an attorney who can provide personalized advice based on the specific circumstances of each case.
Is it common for a derivative beneficiary (H-4 spouse, child) to not receive approval of application at the same time as the principal with premium processing?
The premium processing of derivative beneficiaries' applications is only expedited by USCIS as a courtesy.
After a second RFE, is my H-1B petition less likely to be approved?
No, multiple RFEs are not rare. It does not mean your petition will not be approved.
Can premium processing be implemented towards an H-1B amendment?
At this moment, premium processing is only for cap-subject H-1B filed for “extension without change”.
Am I allowed to be a student while on an H-1B visa?
Yes, you can definitely attend school, just as long as you maintain your job position that your visa is based on.
Is an itinerary necessary if H-1B employee is on a client site?
Only when there are multiple work locations.
Do I need to wait for USCIS to provide a change-of-employer reception notice before switching jobs [to unaffiliated organizations] while I am in H-1B status, or can I rely on delivery confirmation that my petition was received?
Work for the new employer can begin as soon as USCIS receives the change of employer petition, but you can wait until you receive notification that your petition has been approved if you want to be safe.
Can I stay in the US if my H-1B extension is rejected and I have an I-485 pending at the same time?
You would be in a "period of authorized stay" [for how long?] even though you would no longer have H-1B status (assuming your current H-1B status has expired; if it is still valid, you would remain H-1B until the expiration and then).
I am in H-1B status with an approved I-140. Can my spouse file for employment authorization immediately?
If your I-140 is up to date and legitimate and your H-1B status is still in effect, your spouse may immediately submit an application for employment authorization.
I entered [country with US border] through land while I was in H1-B status, however CBP did not stamp my passport when I returned to the US.
This frequently occurs near land borders; it shouldn't be a problem until [potential scenarios? Existing difficulties with status; is a record of travels required?]
What effect does it have on my extension application if my employer wishes to file an H-1B petition for me as [E category] before I apply for my STEM OPT extension?
The petition will not influence your extension application.
What is consular processing for an H-1B petition?
This simply implies that as opposed to petitions submitted on behalf of a beneficiary within the US, the beneficiary of the petition will utilize the permission to apply for a visa at a US consulate.
How should I react to an RFE regarding my travel dates and maintenance of status that I received after my H-1B cap case was filed and I had to leave the country for an emergency?
Sadly, any trip while a status change is pending results in the cancellation of the request. There is no way to respond to the RFE in a way that would prevent the cancellation, even if the H-1B is authorized for consular processing.
Do I have a problem since I applied for a change of status from [current] to [H-1B] and my [current status] I-94 is about to expire but my H-1B is still pending?
While your application for a change of status is processing, you will typically be in a period of allowed stay.
Would contacting my Congressperson make a difference in my employment-based I-485 case, which is still pending after I had an interview for it some time ago?
Contacting the office of your Congressperson may be beneficial if your priority date has remained current; USCIS is not faultless and occasionally loses track of applications.
I am a [profession] on an H-1B visa, and my employer has several locations. Initially, I only worked at one of the locations, but now he/she wants me to work at another. Does this call for a fresh LCA?
A new LCA won't be required if the extra work site is within a reasonable commute of the previous location; but, if your hours or job tasks significantly alter, an H-1B amendment will still need to be submitted. But if not, you'll likely need to submit a new LCA as well as an amended H-1B petition.
What is the status after my company filed an appeal after my H-1B extension was rejected and my I-94 expired?
Your employer's filing of an appeal does not grant you any status; you are currently out of status and may be present illegally. Any additional petitions or applications submitted after you lose your immigration status should be for consular processing only, excluding the appellate procedure. If you choose to stay in the US, you will probably receive a Notice to Appear, which is the first step in removal proceedings. You should then decide how to move forward by speaking with a lawyer.
Can I leave the US and re-enter on a B1/B2 visa in the event that my current H-1B extension is rejected?
Although this seems like a reasonable course of action, you should be aware that there may be issues. For example, if your H-1B extension request is denied, you may end up in the US illegally. Additionally, you should be aware that Customs and Border Protection may be more likely to refuse your admission as a B1/B2 visitor if you have been in the US for an extended period of time in an H-1B status.
What will happen if my amendment is rejected when I'm in H-1B status with a pending amendment and my I-94 expiring at [future date]?
You ought to be permitted to continue working through the expiration date of your first H-1B petition if your job is still open. Rarely would USCIS deny an H-1B amendment application based on a negative "status" determination; in that instance, you would be in the US illegally and would need to depart.
When must I begin working for the new company after my H-1B change of employment request has been approved? How long may I be employed by my initial H-1B employer?
You may continue to work with your first H-1B employer as long as their approval is still in effect. You are under no obligation to begin employment with the new employer, and if you don't start with them within 60 days, they should revoke their H-1B petition.
My H-1B visa application was sent for administrative processing. During this time, I got a better job offer. Am I allowed to transfer my visa and get a stamp upon approval of the new petition?
Possibly, but you will have to withdraw the pending visa application first.
I got an RFE for my H-1B petition, and my spouse got one for his/her H-4 application. Is it acceptable to send the answers to both in the same envelope?
There is no issue; in fact, to ensure that USCIS receives the documents simultaneously, you should send both responses in the same package.
I have an H-1B amendment waiting, but my I-94 is good until [future year]. Can I leave the US at this time?
Previously, you could leave the country as long as your H-1B status and "stamp" were still valid, but under the current administration, it is preferable to wait for your adjustment to be accepted so that there would be no confusion when you attempt to re-enter.
When will I get the letter notification that my H-1B extension has been authorized, according to my online case status?
The I-797 notice should typically arrive 7–10 days after your case status has been updated electronically.
Can I continue with both of my H-1B petitions—which were submitted by two distinct companies for two different projects—or do I need to withdraw one of them?
If the job positions are unrelated, you do not have to withdraw either one. If you get approved for both, you must choose one.
Can I change jobs before the start date of [X] if my H-1B lottery application was approved while I was on Optional Practical Training?
Since you won't have H-1B status until X, switching jobs would require the original H-1B employer to revoke the petition that was approved in order for you to do so. Your "cap number" and H-1B eligibility could be lost if you withdraw before [X] starts. A lawyer should be consulted for guidance specific to the circumstances of your case, but generally speaking, no attempt should be made to shift employers before an approved H-1B start date.
What is the time that USCIS takes to respond to an RFE response?
Typically, within 60 days of receiving the RFE response.
Am I allowed to cross the border for work if my H-1B is for the U.S., but I reside in Canada?
You will not have to file for an amendment if your H-1B job and worksite are the same.
I have a valid I-94 and H-1B status, but there is a pending amendment. Can I travel abroad without risking my immigration status?
You should wait until your amendment is approved before departing the nation, just to be safe.
Am I allowed to leave the country if my H-1B lottery case is still pending?
If your petition is approved, you need to get a “stamp” at a consular office to be in H-1B status. This will happen if you leave the country when your petition is pending.
Are my parents able to come to the U.S. as dependents while I am on H-1B?
No. An option for them may be an extension of B-2 Visa as “household members”.
Can I check if my H-1B petition was submitted by my employer?
No, you must confirm with your employer unless you have the receipt number.
Can I change from H-1B to F-1 status?
Yes. You can change to F-1 status to complete your education and then your employer can fill out an H-1B to resume the rest of the six-year status for this visa.
If I switch from H-1 to F-1, do I need to enter the H-1B lottery again to get a job?
No, as long as your initial H-1B period did not go past six years.
I recently converted my status to H-1B and am currently valid, but I do not have an H-1B visa stamp. Since I will shortly be visiting [a border city or state], would this present a problem?
Although travel within the US shouldn't be problematic, there may be immigration checkpoints in [boundary city/state]—they aren't looking for a valid visa stamp. Your current passport and a copy of your I-94 should be sufficient as proof of your current status.
Can a new employer file an H-1B for me now that my application for a change of status from H-1B to F-2 is pending?
Although it's conceivable, you should be aware that your position would be determined by the most recent approval to take effect. So that you do not find yourself in F-2 and unable to accept gainful job, you should speak with an attorney. Call us today.
Can my spouse use his or her H-4 EAD to continue working if I switch to a new H-1B employer?
Yes, your spouse's EAD shouldn't be impacted by your new employer. However, the employer may still rescind the I-140 approval if it is less than 180 days old in which case your spouse's EAD would not be prolonged.
Can another employer file an H-1B petition on my behalf while the 221(g) case is still pending after I submitted an application for an H-1B visa at a consulate and received a 221(g) notice?
The other employer may submit an H-1B petition for processing at the consulate. [What happens if the 221(g) case is successfully resolved and the second H-1B petition is likewise granted? What about first in time? Does the beneficiary get to choose their employer?]
How does H-1B beneficiary consular processing operate if the beneficiary is in the US?
I-94 cards are not typically issued along with H-1B approvals; instead, the beneficiary must depart the country and then return with a current H-1B status.
I am continuing to work for my original H-1B employer while an H-1B change of employer petition has been filed on my behalf by a new company. Will there be a problem if I request an H-1B extension from my first job during this period?
No, there is no issue with filing several H-1B petitions on your behalf [as long as they come from genuinely distinct/unrelated businesses].
I've applied for a change of status to [x; the exact question states H-4] because I'm going to exhaust my H-1B time limit of six years. If I get an I-140 approval after changing to the X status, may I then switch back to the H-1B status?
Yes, in the majority of circumstances, individuals who are currently in a legal status and who were previously in an H-1B status may use a valid I-140 approval to extend status past the 6-year limit.
How will the [USCIS memo] affect me as someone who is now in H-1B status and who will soon be traveling to another country to visit family? I need to go to the consulate to receive a new visa stamp.
Only the adjudication of H-1B applications is affected by the USCIS memo. Consulates may in any event ask for extra details to confirm the legitimacy of an H-1B job.
Explain what an Alien Number is. If my H-1B is accepted, do I get one?
An immigrant is often given an A Number if their petition has been approved on their behalf OR if they have been subject to removal proceedings. If you haven't previously received an I-130 or I-140 approval and that information was revealed in the petition, there won't be an A number on your H-1B approval notification.
In the lottery last year, my H-1B petition was chosen, but it was ultimately rejected. Can I reapply to the lottery for this year while the appeal is pending since that denial was appealed?
Yes. Other H-1B applications or lottery entries are not barred because an H-1B case is still on appeal.
If I have beyond the 60-day grace period, can I still submit an H-1B change of employer petition?
Although the H-1B petition must be filed for consular processing (requiring you to leave the US to obtain status), if the 60-day grace period has passed, you are still eligible to receive one.
While on OPT, I'm employed by a 501(c)(3) organization; are they considered cap-exempt employers for H-1B purposes?
Without more details, the answer is "maybe" because not all non-profits satisfy the criteria for cap-exempt employers. It's likely that your nonprofit employer will be regarded as cap-exempt if they are "related to" or "affiliated" with a university or do research.
If my change of employer petition on my H-1B visa is denied, can I return to my original H-1B employer?
You can typically return to your original H-1B employer as long as their petition is still valid and has not been withdrawn during your employment with the new employer.
If my H-1B change of employer petition is denied, can I continue working with my current employer?
Yes, if your current H-1B status with your current employer is still valid, the denial of a change of employer petition does not automatically affect your ability to continue working with your current employer.
Can I switch from H-1B to F-1 status even if I have an approved I-140?
While it is technically possible to switch from H-1B to F-1 status, having an approved I-140 indicates immigrant intent, which is not compatible with F-1 student status. As a result, it is likely that your F-1 application would be denied.
Can I work for multiple H-1B employers simultaneously?
Yes, it is possible to work for more than one H-1B employer at the same time. However, each employer must file a separate H-1B petition on your behalf, and each petition must receive approval from USCIS. You cannot work for additional employers without the appropriate H-1B approval for each employment opportunity.
I attended my H-1B visa interview and received a 221(g) notice. It has been a considerable amount of time without any further information. Is there anything I or my employer can do to expedite the case?
Typically, consular processing in situations like yours takes approximately 2-3 months. If you haven't received any updates or additional information after a significant amount of time, you may consider reaching out to the consulate directly via email. However, it's important to note that contacting the consulate does not guarantee a prompt response or resolution. The 221(g) notice is issued by the consulate, and USCIS has limited involvement in that stage of your visa application.
If I go abroad for a few weeks before my OPT ends [future date] and am being sponsored for an H-1B cap case this year, how would this affect my H-1B petition?
Your H-1B case will only be approved for consular processing if you depart the country or are abroad during the waiting period (not for a change of status). You would therefore need to leave the US and apply for an H-1B visa from abroad if your application were to be chosen in the lottery and granted.
Is there a new or pending regulation that would prohibit prolonging H-1B status for more than six years?
No such regulation has as of yet been proposed. Since the extension of the H1-B status is likewise governed by law, any changes would require congressional approval.
Can I have pending H-1B applications with the USCIS from more than one employer? Do I have a choice of jobs if both or all of my petitions are approved?
Yes, you may submit more than one H-1B application. Additionally, if all of your petitions are approved, you have the freedom to choose your place of employment. The employers you didn't choose should withdraw their approved petitions after you make your choice.
Can you appeal a denial of an H-1B extension? Can the recipient remain in the US while the appeal is being considered?
Within 33 days after the decision, H-1B extension requests can be addressed by submitting an appeal or a motion to re-open/reconsider. Since neither of those options provide legal status, if your present H-1B status has already expired, you will be accumulating time for the purpose of an unlawful presence. Staying in the US while an appeal, request to reopen, or reconsideration is pending is a risky bet since if the beneficiary is still denied, they will be penalized for the time they were out of status.
Will USCIS raise a concern or inquiry about my decision to switch to a new H-1B company and my new work title of [X]?
The work duties mentioned and the appropriate SOC (standard occupational classification) code choice made by the H-1B employer for the LCA file are more crucial than the job title itself. The job title itself shouldn't be a problem as long as USCIS accepts the information provided in the LCA and supported by the H-1B petition as a specialist profession.
My request to alter my H-1B employer was rejected, and my I-94 has now expired. How can I switch jobs?
Your alternatives are unfortunately restricted since after your I-94 expired, you lost your immigration status and started building up unlawful presence time. You will probably need to leave the nation in order to look for a new H-1B employer who will file a petition on your behalf, receive approval, and then obtain an H-1B visa stamp abroad before you can legitimately return on H-1B status in order to pursue employment in the US.
Do I have to quit working because my H-1B change of employer petition has been on hold for more than 240 days?
After your I-94 has run out, extensions with the same H-1B employer are often subject to the 240-day restriction. You should be permitted to continue working for the new employer while the petition is being processed.
Regarding an H-1B petition, I was employed in F-1 status on OPT; nevertheless, my OPT employment authorization expired on [x date] while my petition was still pending. My H-1B petition was rejected by USCIS [less than two months later]. I subsequently tried to transfer my SEVIS record to another program of study, but my DSO said I would have to leave the US because my records showed degree completion. Is this correct?
After your OPT employment expires on [x date], you typically have 60 days of grace during which you can transfer your SEVIS record to another course of study or get ready to depart the country. However, given that the government won't restore students' SEVIS records to active status so they can change their course of study within the grace period, your circumstance is becoming increasingly typical. Your DSO is correct—you will most likely need to leave the US or reapply for F-1 status depending on your acceptance to a different program of study—until there is a unified regulation.
The H-1B minimum wage has been increased to [x: real Q = $90,000, $130,000]. Is this accurate?
As many immigration-related proposals as are offered in Congress fail to pass, no such proposal has ever been made into law. Check out our current events area for the most recent immigration legislation changes.
I was granted an H-1B visa "stamp" [x] years ago, but I never visited the US. Subsequently, the H-1B employer had the petition canceled. Do I have to re-enter the lottery if I'm already sponsored for H-1B status?
In general, getting an H-1B petition granted and receiving a visa stamp indicates that you have already been charged with violating the H-1B cap and are no longer eligible to file with another employer. for
When is a person counted against the H-1B cap? A cap case's approval or some other occasion?
The answer is yes, the beneficiary is counted against the cap if the petition is approved and not revoked before October 1. However, USCIS has been inconsistent on this matter. However, the definition of people who "[receive] a visa" or are "otherwise granted" H-1B status is larger than what is implied by the INA's statements. According to one interpretation, you are not included in the cap if your H-1B petition has been authorized for consular processing, but you never receive a visa stamp.
Am I allowed to travel outside of the US while my application for a change in my status from one visa to H-1B is pending?
If you leave the country while your H-1B change of status application is still pending, the application will be submitted to the consulate for processing even if it is accepted. In that case, you would have to leave the country and apply for an H-1B visa there.
With regard to H-1Bs: Do I have to be in H-1B status before my employer will sponsor me for a green card or can they do so while I am on OPT?
Starting the green card application procedure while you are still on OPT is not prohibited. A green card can be applied for without being in any specific visa status.
Can a startup or small business appeal for an H-1B visa? Does the likelihood that such a petition will be accepted decrease?
As long as the firm has an EIN they can apply with and a need to fill a specialty occupation post, there is no minimum number of employees needed to be an H-1B petitioner.
While these petitioners frequently need to provide USCIS with additional proof of their company's validity, if filed properly, there shouldn't be any problems with acceptance.
My H-1B petition was denied, according to the USCIS online case status. Will my employer, the attorney, the authorized representative, etc. receive an email outlining the reasons why?
Denial notices are not sent via email by USCIS; instead, they are received via fax or traditional mail.
I have an approved I-140 and am approaching the end of the 7-year period for L-1A status. Can I change to H-1B status when the 7 years are up?
First, the 6-year maximum period for H-1B status normally includes time spent in L-1A status. Additionally, whereas a valid I-140 may be used to extend H-1B status for an additional six years, L-1A status cannot be extended.
Second, merely receiving an I-140 approval does not free you from the H-1B cap; if you had previously been included in the cap's calculation, switching to H-1B status would not be problematic. If that's not the case for you, your only opportunity of obtaining the status is through participating in the H-1B lottery.
I used to be on OPT and had time left when I transitioned to H-1B status. Is there a way to go back to my prior status and spend my remaining time?
Most certainly not; if you switch to H-1B status, the OPT time is lost.
Can I apply for a change of employers while my H-1B extension is still pending if I filed one just before my I-94 expired?
While you will be in a period of authorized stay, a change of employment (often referred to as an H-1B transfer) will typically only be approved for consular processing if an H-1B extension is submitted on time and followed by I-94 expiration.
Is it accurate to say that H-1B cases with level 1 pay are rejected?
No, our company has seen several H-1B RFEs with level 1 pay; nevertheless, an RFE does not imply a denial; it is still feasible to submit a complete response and obtain clearance. Please speak with an attorney for more detailed legal counsel on your situation.
How likely am I going to be approved? I received an RFE on my H-1B [extension] petition disputing my job duties with a level 1 income.
RFEs are frequently sent out in response to petitions with level 1 salaries; while it is possible to respond successfully, a more thorough response would need to take into account the particulars of your case.
Do my H-4 dependents, if I submit for an H-1B change of job, also need to file a transfer?
Although they are not obligated to do so, dependents of an H-1B primary beneficiary sometimes submit transfers in order to ensure that their status end dates coincide.
Can I apply for a tourist visa while my H-1B cap case is ongoing while I'm [outside the US]? Will this have an effect on my H-1B petition?
You may be able to apply for a B-2 visa "stamp," but there is a significant chance you will be rejected because the active H-1B petition indicates immigration intent, which is incompatible with visiting status. Even if the visa is rejected, it shouldn't affect your ongoing case in any way.
How can I demonstrate that I am working with a customer at the consulate?
The consulate requires a letter from the end-client confirming your responsibilities, outlining the specifics of the project you are working on, and providing address and contact information—much like you would when submitting a response to an RFE. You will need to provide as much supporting documentation as you can if the client refuses to produce a letter of agreement.
If an employer revokes my H-1B approval, do I still have a 60-day grace period?
Even if an H-1B company has withdrawn their authorized petition, the grace period should still be in effect.
If an individual is in H-1B status, which date—the last day of employment or the date of termination—begins the 60-day grace period?
A H-1B employee's termination triggers the start of the grace period.
Do I still receive the benefits of the 60-day grace period if I am an H-1B and resign from my position?
According to the most recent regulatory text, both voluntary and involuntary terminations are covered by the grace period.
Can I continue working if my H-1B status changes to an H-4 and my EAD application is still pending?
Up until your request to convert to H-4 is approved, you can continue working under the H-1B status; however, you must wait until your H-4 EAD application has been approved before you can start working again. Sometimes your change of status to H-4 will be authorized at the same time as your EAD, but you shouldn't bank on it.
While my H-1B transfer to a new company is still pending, may my initial H-1B employer revoke the petition they approved? Exists a means of stopping this?
Any employer petitioner with an accepted H-1B petition may do so. However, if your new company submitted the H-1B transfer application while you were still in possession of a valid H-1B status, the revocation by your former employer shouldn't have any adverse effects on your status.
I was fired and the company had the approved petition cancelled while I was employed on an H-1B visa. Can an employer now file an H-1B petition on my behalf if I changed to an H-4 status?
In most cases, yes. 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 if you earned the H-1B approval and were counted against the cap.
My six years under the H-1B program are set to expire, and my present employer has given me an authorized I-140. Even though the position with the new employer is entirely different from what I do with my present employer, may I still apply for an H-1B transfer or extension of status?
You can normally extend your H-1B status past the six years if your current employer's approved I-140 has been submitted and has been granted (if more than 180 days have passed).
I have [x time] remaining in my H-1B status, but USCIS has given me an extension that extends my status for [x] years past the maximum of 6. Does this mean I may continue working after the 6-year mark?
Most likely not, you shouldn't rely on this because it was probably a USCIS mistake. There will be no justification for any time spent in an unauthorized presence or adverse effects on your status if USCIS makes a mistake. You should make plans to either switch to another nonimmigrant status that you are eligible for or be ready to depart the country unless you have an approved I-140 that can be utilized to prolong your H-1B status beyond the 6 years.
If I switch to an H-4 EAD while still in H-1B status with an approved I-140, how would this affect my application for a green card?
Most likely, a change in a nonimmigrant's status will not have an impact on the I-140 approval date or priority date.
I am now on OPT, and the project for which my H-1B petition was filed will soon come to an end. If an RFE is granted, may I transfer to another project?
Although it's not unusual, someone in your circumstances should speak with a lawyer. Finding a new customer nearby your current employer may be a solution, although even this has mixed results from USCIS. It is likely that the project's end date will lead to the H-1B petition's denial, and your choices for saving it are pretty limited.
Can I switch employment if my H-1B extension is rejected?
You ought should be able to submit a transfer request as long as your I-94 is valid. Additionally, an expired I-94 would result in the sending of your application for consular processing, which would require you to leave the country and obtain a visa stamp at a consulate in order to return on H-1B status with the new employer.
Can I utilize the fact that my PERM was denied as justification for extending my H-1B status past the maximum 6-year period while my appeal is still pending?
You should be able to obtain a 1-year H-1B approval with any company if your appeal has been waiting for more than a year.
Will my family-based green card application be handled more quickly if I have H-1B status?
No, it won't affect how long you have to wait for an immigrant visa because you are not an immigrant. A delay of up to [sibling-sponsored: 10] years is to be anticipated.
Is there a method for me to independently obtain the receipt number my company claims was granted on an I-140 but withholds from me?
You should be able to obtain the majority of the I-140 filing by submitting a Freedom of Information Act (FOIA) request to USCIS.
Can I simultaneously submit two change of status petitions (one for F-1 and one for H-4) if I currently have H-1B status?
While simultaneously filing more than one change of status application is not prohibited, keep in mind that your status will be determined by whichever application was accepted last. Therefore, make sure to withdraw your other application(s) as soon as your chosen status is authorized. Otherwise, the subsequent (unwanted) change of status may take effect even though withdrawal requests were disregarded or overlooked.
Can a 1-year online master's program be completed to qualify for the H-1B master's cap?
Even if the course was taken online or through distance learning, a master's degree from a recognized public university qualifies for the master's cap.
What effect will having a degree from a school that lost its accreditation have on my application for an H-1B visa?
The university's loss of status after the degree was conferred shouldn't have any bearing on you as long as USCIS still recognizes your degree as having been earned from an accredited institution.
Do I need to file an addendum indicating my work location in [foreign country] if I have H-1B status and intend to work in [foreign country] for a year?
There is nothing to file if you are working abroad; you can only get H-1B status if you are employed in the US. However, if your place of employment or your job responsibilities have changed when you return to the US, an amendment might be necessary.
Can I bring a lawyer with me after the consulate declined my request for a visa?
Attorneys are not allowed in the room during visa interviews, however you can ask your lawyer to get in touch with the embassy by phone or email after the interview if you like.
When may I submit an application for a visa "stamp" following the H-1B approval?
Consulates will normally accept your application beginning 90 days prior to the start date of your H-1B appointment.
Will getting a speeding ticket plus a red-light violation affect my H-1B petition or renewal?
Most certainly not; minor traffic infractions shouldn't have an impact on your H-1B case.
I worked in H-1B status for [x] number of months before switching to H-4, at which point my H-1B petition was revoked. Am I now ineligible to work in H-1B status again?
You ought to continue to be cap-exempt and be able to return to H-1B status without having to go through the lottery unless USCIS cancelled your H-1B petition due to fraud.
I won this year's lottery for an H-1B petition; can I change jobs before October 1?
It's not advised that you try to do this on your own, even though USCIS has allowed certain beneficiaries to change their employer before October 1st or the start date of their petition. If you don't wait until after October 1st (or until your "cap" petition with the original employer petitioner is approved), you run the danger of having your cap case refused and losing your cap number and H-1B eligibility.
Until my H-1B change of employer request has been approved, I want to remain with my existing employer. Will USCIS notify the other employer who filed an H-1B transfer on my behalf to my current H-1B employer?
Normally, USCIS won't provide any information regarding a transfer request made by another company to your present H-1B employer.
I was chosen for an H-1B in the lottery [the previous year], but I was denied; do I have to go through the lottery again?
In order to avoid the lottery, genuine H-1B approval is necessary; you will not be treated as cap-exempt just because your petition was chosen in a previous lottery.
Can I switch to premium processing now that my H-1B petition was initially filed with regular processing on [past date] because the filing date was [earlier than the deadline for premium processing]? depending on the deadlines for processing premiums for the year.
No. Beginning on [x date], USCIS will no longer accept files for premium processing. Once [x date] has passed, even if you submitted earlier, you cannot switch to premium processing. It's anticipated that premium processing will start up again on [USCIS's specified date].
Can I have F-1 and H-1B at once?
No, you can only have one non-immigrant status at one time.
Does [job title: computer programmer] still qualify for H-1B status despite rumors to the contrary?
Although the USCIS did release a letter suggesting that entry-level computer programmers would not necessarily be regarded as a "specialty occupation" for H-1B reasons, this does not mean that programmers in general are being denied status. Instead, it is the petitioner's responsibility to provide proof of the precise work duties and credentials necessary to show that the position they wish to fill with an H-1B employee satisfies the requirements for a specialist occupation in accordance with its assigned SOC code.
Can I enter the US if my H-1B amendment is still pending?
When the H-1B visa "stamp" was still in effect and you received the reception notice for your H-1B amendment or extension, you could enter the US. However, given the present government, it is generally best to wait for approval and instead avoid doing this.
Do we need to wait for the first amendment to be approved or can we file while it is still pending?
My company filed an H-1B amendment for me that has been sitting for a while.
While premium processing is not available, there is no reason to wait for the first amendment to be granted. It is also very uncommon to file while a previous amendment is still pending.
Would a PERM case brought by one employer affect an H-1B petition submitted by another?
PERM/I-140 cases and H-1B petitions are separate processes, thus there shouldn't be any interaction between them.
Can I submit a new H-1B petition and enter this year's lottery if I left the US in [x month/year] after using up my six years of H-1B time?
Before being sponsored in the H-1B lottery after six years of H-1B status, people usually have to leave the country and stay there for a full year as of the filing date.
When premium processing for H-1B is temporarily halted, does that include extensions and transfers as well?
Yes, the suspension of premium processing applies to all types of H-1B filings, including extensions and transfers.
If I file an H-1B extension for the same position at the same work site, do I need a new Labor Condition Application (LCA)?
If the LCA from the original filing is still valid, it can be used for the extension. However, please note that the extension will only be approved for the remaining duration of the existing LCA. If the LCA has expired, then a new LCA will be required to file the H-1B extension, even if there are no changes to the original petition.
Will there be a reduction in the number of H-1B cap cases allowed this year?
The specific number of H-1B cap cases permitted in a given year is determined by USCIS. It is advisable to refer to the official USCIS count or the latest updates to get accurate information on the available number of H-1B cap cases for the year in question.
If my employer successfully files an I-140 petition for me, do I need to remain with them for 180 days before extending my status? Can I switch to a new employer before that period is over?
The 180-day requirement is not related to your employment duration with the specific employer. Instead, it refers to the validity period of the I-140 petition, which must not be revoked by the employer within 180 days. You are generally allowed to change employers before the 180-day period is over if you meet the necessary requirements for transferring your H-1B status.
We responded to an H-1B Request for Evidence (RFE), but the case was still denied. Will I receive a refund for my filing fees?
No, filing fees for H-1B cases are non-refundable and are not dependent on the approval of the petition. USCIS only returns filing fees in cases where the H-1B petition is not selected in the lottery.
Can I travel between the continental US and Puerto Rico on H-1B status without a visa stamp?
As Puerto Rico is a territory of the United States, you can travel between the continental US and Puerto Rico without the need for a visa stamp. Valid identification documents are sufficient to board the plane.
I previously worked in H-1B status for less than 6 years in [past year] and returned to my home country. Can an employer now file an H-1B petition on my behalf as cap-exempt and utilize the remaining H-1B time?
Currently, there is no expiration on unused H-1B time, so an employer should be able to sponsor you for an H-1B petition without going through the lottery and take advantage of the remaining duration of your H-1B eligibility.
My H-1B was approved for employment at a non-profit organization. Can I transfer to a for-profit company?
Whether you can transfer to a for-profit company depends on whether the initial H-1B employer qualified as cap-exempt. Not all non-profit organizations qualify as cap-exempt. If your initial employer was cap-exempt, you may need to go through the H-1B lottery if the for-profit company wishes to sponsor you, or you may need to maintain employment with both the non-profit and for-profit companies simultaneously.
I am currently on OPT. If my H-1B petition is approved, do I need to travel outside the US for visa stamping? Can my dependent (who is abroad) receive a stamp?
If your H-1B petition was not sent for consular processing, you will not need to travel outside the US for visa stamping. As for your dependent who is abroad, if they qualify for H-4 status, they should be able to apply for a visa stamp at the US consulate in their home country.
I have been working on OPT after completing a master's degree from a private non-profit US university that lost its accreditation. Can my employer file an H-1B petition for me under the master's cap?
To qualify for the master's cap, the degree must be from a US accredited public or non-profit university. USCIS may consider the accreditation status of the university at the time your degree was conferred as well as when the H-1B petition is filed. To avoid potential issues later, your employer may choose to file the H-1B petition under the regular cap instead of the master's cap.
Do the job responsibilities stated in my H-1B extension need to match those listed on my approved I-140 petition?
If the same employer filed the PERM labor certification that served as the basis for your approved I-140 petition, then the job duties should be similar. However, if the approved I-140 comes from a different employer, there is no need to be concerned about matching the job duties.
Is it possible for someone working on an H-1B visa to also have an H-4 Employment Authorization Document (EAD)?
No, it is not possible to have both an H-1B visa and an H-4 EAD simultaneously. You can only hold one non-immigrant status at a time, and having an H-4 EAD requires being in H-4 status, which is incompatible with being on an H-1B visa.
I worked on an H-1B visa for less than 6 years and then left the US for over a 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 available?
No, the cap-exempt H-1B petition filed on your behalf will recapture the remaining time of your original 6-year H-1B period. To "reset" the clock and have a full 6 years of H-1B time, an employer would need to file a regular cap-subject petition (entering the lottery again) after you have been outside of the US for more than one year.
My STEM OPT is set to expire on [date], and my employer will file an H-1B petition for me around that time. Will I be eligible for cap-gap protections?
If your OPT does not expire before the H-1B petition is filed, you should qualify for cap-gap protections. Cap-gap allows you to continue staying and working in the US until the H-1B petition is processed, even if your OPT has expired.
How long does it take for an H-1B change of employer case to be processed with regular processing? Can I upgrade to premium processing later?
Currently, regular processing for H-1B cases can take around 6 months or so for adjudication by USCIS. As long as premium processing is not suspended, you should have the option to upgrade to premium processing at a later date for faster processing times.
If I have a pending H-1B amendment, can I still apply for a change of employer? Does the new employer need to be informed about the pending amendment?
If your I-94 is valid, you should be able to proceed with filing an H-1B transfer even if you have a pending amendment. There is generally no requirement to inform your potential new employer about the pending amendment. However, it is advisable to consult with an immigration attorney to ensure that you understand the specific details of your case.
I have been in H-1B status for 5 years, having transitioned from F-1 status, and I have not traveled outside the US during this time, so I do not have a valid H-1B visa stamp. Will there be any issues if I apply for a visa stamp now?
If your H-1B petition was solely a change of status and was not submitted for consular processing, it is common not to have a visa stamp. The visa stamp primarily serves as a travel document and is not required for maintaining H-1B status. Therefore, the delay in obtaining a visa stamp for travel purposes should not cause any significant concerns.
Can I start working immediately with a new employer once an H-1B transfer is filed on my behalf? Are there any risks associated with this?
While it is true that you can commence working with the new employer once the H-1B transfer is filed, there is a risk that your petition for a change of employer may be denied by USCIS. In such a case, you would no longer hold valid H-1B status. It is important to weigh the potential risks and consult with an immigration attorney to understand the implications specific to your situation.
My initial H-1B status was obtained through a master's cap petition, despite graduating from a for-profit university. Now, USCIS has issued a notice of intent to deny my latest H-1B petition based on the cap issue. What can I do in this situation?
While it is highly likely that your current H-1B petition will be denied due to the cap issue, there may be potential arguments and legal strategies that can be pursued. It is crucial to seek guidance from an immigration attorney who can assess the specifics of your case and provide appropriate advice and representation.
If my H-1B extension is denied, do I need to cease working immediately, or can I continue until the end of my current H-1B status?
You can continue working until the expiration of your current H-1B status, even if your extension is denied. The denial does not invalidate your current H-1B status until its designated end date.
Can I attend school full-time while in H-1B status?
Generally, you can pursue full-time education while in H-1B status as long as you continue to maintain employment as specified in the approved H-1B petition. It is important to comply with the terms and conditions of your H-1B status and consult with an immigration attorney to ensure you are in compliance with the regulations.
Can I upgrade my H-1B petition from regular processing to premium processing? Will this increase the likelihood of receiving a Request for Evidence (RFE)?
If premium processing is available, you can upgrade your H-1B petition to premium processing at any time after it has been filed. It is worth noting that our firm has observed a higher incidence of RFEs with petitions filed under premium processing due to the time constraints imposed on USCIS in making a decision.
I am currently in H-1B status with a valid visa stamp. If I change to H-4 status, can I still travel outside of the US and re-enter using my H-1B visa stamp?
Once you change to H-4 status, you will no longer be able to use your H-1B visa stamp for travel purposes, except for short trips to Canada or Mexico (30 days or less). To properly re-enter the US in H-4 status, you will need to obtain an H-4 visa stamp.
Can a single H-1B petition cover working at two different locations on two different projects?
Yes, it is possible for an H-1B employer to file a single petition that covers work at multiple locations and on different projects. However, it is important to obtain approval for the necessary Labor Condition Application (LCA) that includes the relevant work sites and project details. Additionally, an itinerary should be provided to account for the beneficiary's work locations and schedule.
My employer filed an H-1B amendment for me two months after I switched to a new employer. Should I be concerned about this?
If by "new employer" you mean a new end-client or job site but the employment agreement and control remain with the H-1B employer who filed the amendment, then it is expected that the amendment should have been filed before your relocation, unless the new end-client is within a reasonable commuting distance from your original job site. However, if "new employer" refers to having an approved H-1B transfer, the amendment filed by your previous employer should not have any impact on your current situation.
Do I need to be paid during maternity leave while on 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 not receiving payment during your maternity leave will not be a violation of your status.
Is it permissible to collect gambling or lottery winnings while on H-1B status?
Winning gambling or lottery prizes is generally not an issue, as long as you are not engaging in gambling activities that qualify as another job or occupation. Occasional gambling and collecting winnings should not pose any issues with your H-1B status.
Do I need a new visa stamp for travel once my H-1B amendment is approved?
Unless your current visa stamp has expired, you can still use it for travel purposes even after your H-1B amendment is approved. An H-1B amendment does not require obtaining a new visa stamp.
If my H-1B cap petition is pending, and an RFE has been issued requesting a client letter, can I submit a letter from my current client?
No, the RFE specifically requires a letter from the end-client mentioned in your original H-1B filing. Submitting a letter from your current client is likely to result in a denial.
I'm nearing the end of my 6-year maximum H-1B period, but due to compelling medical reasons (such as a premature newborn requiring ICU care), I cannot travel and leave the country. Can my H-1B status be extended for medical reasons?
The 6-year maximum limit for H-1B status is set by law and does not provide exceptions for humanitarian or medical reasons. In such cases, individuals unable to travel may consider applying for a change of status to B-1/B-2, but it's important to note that you would not be authorized to work during that time.
I was laid off from my H-1B job and have filed for a change to B-2 status. If I find another job, can I switch back to H-1B by having the new employer file for me with premium processing?
In most cases, returning to H-1B status after being in B-2 status would require consular processing, as a change of status from B to H-1B may be complicated due to the underlying immigrant intent of H-1B status. It is unlikely to be accepted as a simple change of status. Consulting an immigration attorney would be advisable in your situation.
My H-1B petition is pending, and I'm currently on cap-gap status. Can I pursue a master's degree at a different university, and will the new SEVIS number affect the processing of my H-1B case?
Your SEVIS record remains active during the cap-gap period, so it can be transferred to the new university without a new SEVIS number being issued. Pursuing a master's degree at a different university should not impact the processing of your H-1B case. Your H-1B case is evaluated based on maintaining valid F-1 status during the cap-gap period.
I'm currently on H-1B with a signed 2-year commitment to my employer, but I am unhappy and wish to change employers. Will USCIS deny my transfer request based on the signed offer letter?
USCIS does not involve itself in employment-related contractual disputes. While H-1B employers are generally not allowed to penalize beneficiaries for seeking other employment, it is recommended to consult an attorney who specializes in employment law to assess the binding nature of the offer letter in your specific circumstances.
I have an approved H-1B petition for full-time employment and another approved petition for a concurrent part-time position. Should I include both on my visa application?
The visa will only be granted based on one approved petition, but it is necessary to inform the consular officer about the other approved petition during the visa application process.
I'm an H-1B employee with a pending transfer to a new employer. Can I continue working with my current employer for another 6 months before transitioning to the new employer?
While it is technically possible to remain with your current employer and then transfer to the new employer after 6 months (provided the current employer does not revoke the H-1B approval), this may not be viewed favorably by the new employer and could create complications for future status adjustments, visa applications, and compliance with immigration regulations.
How far in advance can I apply for an H-1B extension?
H-1B extensions can be filed up to 6 months prior to the requested start date mentioned in the extension application.
I will be laid off by my H-1B employer in 30 days, and I may not find a new job before the layoff and USCIS notification. Is it possible to change to B or F status?
If you are unable to secure a new job before the layoff and subsequent USCIS notification, your H-1B status will end on the last day of employment. To file for a change of status, you generally need to be in a current valid status. Consulting an attorney regarding the specifics of your case is recommended.
My H-1B period will reach 6 years in December of this year. If I leave the US before October 1, will I be eligible to apply for a "fresh" H-1B in next year's lottery?
No, to be eligible for another 6 years of H-1B time, you would need to spend a full year outside of the US at the time of filing the new H-1B petition in the lottery. Since next year's lottery begins in April, it is already too late for you to apply in that cycle.
My H-1B petition was selected in the lottery, but I received an RFE requesting a client letter and the case was eventually denied. Is there an appeals process? Alternatively, can I apply for an H-1B with a new employer without going through the lottery?
You can file an appeal or a motion to reopen/reconsider within 30 days of the denial. If those options are unsuccessful, you would generally need to re-enter the lottery with a new H-1B petition when seeking employment with a different employer.
I have an approved H-1B extension, and my I-94 has not expired. Can I file an I-485 while the extension is pending?
To have the I-485 approved, there cannot be more than a 180-day gap between the filing and the approved status period. While you can file the I-485 while your H-1B extension is pending, if your I-94 has already expired, it is advisable to wait for the extension to be approved to avoid potential issues related to the 180-day gap rule.
I have an H-1B visa stamp from my previous employer, but my passport with the stamp has expired. Can I still travel using the expired stamp, or do I need to go for stamping again?
If the visa stamp in your expired passport is still valid, you can present the expired passport along with your current passport and the receipt notice for your new employer's approved H-1B to travel.