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 reserved for those who have attained higher education. 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Trade Agreement Cap (6,800) + Unused H-1B Caps from previous Fiscal Year(X) + Petitions that were Denied, Rejected or Withdrawn(X) = Annual Cap for Current Fiscal Year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 2024 H-1B Visa Petitions on April 1st, 2023.
- The USCIS fiscal year starts on October 1st and ends September 30th. Accordingly, fiscal year for 2024 would start on October 1st, 2032 and end on September 30th, 2024.
- Though there is no deadline as to when the H-1Bs should be submitted by, once the H-1B Cap is reached, USCIS will stop accepting cases for FY 2024.
- 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 several precautions that you may take to minimize the likelihood of your application being denied due to the Cap being reached. First, you must complete and submit the H-1B Petition as soon as possible. Please note that USCIS does not accept any petitions 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 for the highest chances of being selected. 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, applications for an a H-1B change of employer, renewal, or extension are not counted towards the current fiscal year cap.
- Those currently holding an H-1B Visa Status are not subject to the Cap. 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 H-1B 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 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 alone 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 does NOT guarantee that your application will be approved; it only guarantees that a decision will be made on your application within 15 days from receipt date of the processing fee. This means that depending 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?
H-1B 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 H-1B 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?
LCA stands for a Labor Condition Application. An employer must submit an 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 has not been 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 must wait for your application to be approved. Once the H-1B Petition is approved, you can start work according to the Employment Period given on the H-1B Approval Notice. For FY 2024, the employment period must be after October 1st, 2023. If your petition was filed from overseas, you are required to get H-1B Visa stamp in order to enter the U.S. on an H-1B Visa. If your petition was filed as a change of status, then 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 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 an 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 an 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, you can apply for an 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. It is important to keep in mind that every Consular Officer is different, depending on his/her caseload, your application can take different amounts of time. If you would like to expedite the transfer application process, you may pay the premium processing fee to have your application decided within 15 business days.
I formerly held 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 H-1B transfer enables valid H-1B 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 as 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.
- You can transfer as many times as you want. Do bear in mind that you are still subject to the H-1B 6-year 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. Delays in submitting the requirement documents can cause denial in one's H-1B Petition.
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 concurrently hold multiple H-1B visas but you may only work for one company at a time. For this reason, 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:
- Spouses and unmarried children under the age of 21 are considered H-1B dependents and are qualified for H-4 visas.
- An H-4 visa holder is allowed to enter the U.S. at the same time as or any time 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-1B visa of the principal immigrants expires or if the principal is laid-off or terminated from the employment, he or she loses the H-1B visa status and the dependents lose their H-4 derivative status.
- H-1B and H-4 are nonimmigrant visas 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.
- An 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 dependents 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 the H-1B renewal time frame, traveling is dependent on processing time. Processing time depends on where in U.S. you are located and where the H-1B Petition was filed. You can check the processing times on the USCIS website according to where the petition was submitted. You can travel while the process is pending, however, it is advisable that you take certain 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 sent to you overseas.
Please note that 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.
With premium processing is it unusual for a derivative beneficiary (H-4 spouse, child) not to receive approval of their application at same time as the principal?
Premium processing does not require USCIS to adjudicate applications for derivative beneficiaries at the same time as the principal, it is done as a courtesy.
Is my H-1B petition less likely to be approved after a second RFE?
Under the current administration multiple RFEs are more commonplace, it doesn't necessarily mean your petition won't be approved.
Can an H-1B amendment be filed with premium processing?
[Answer dependent on when question is asked] No, at this time premium processing is only for cap-subject H-1B petitions filed for “extension without change.”
Can I go to school while on H-1B status?
Yes, provided you maintain the employment your H-1B status is based on.
For H-1B employees working at an end-client site, is an itinerary required when filing an extension?
An itinerary is only required when the petition is filed for multiple work locations.
[Questions regarding pending legislation in general]/What impact will the current DHS spending bill have on the employment-based immigration system?
While Congress often considers many bills dealing with immigration issues, the majority are unlikely to become law.
I'm on H-1B status and want to switch employers [unaffiliated companies], do I need to wait for USCIS to issue a change-of-employer receipt notice or can I go by delivery confirmation that my petition was received?
Work for the new employer can commence once USCIS has received the change of employer petition, but if you want to be on the safe side you can wait for the receipt notice that your petition has been approved.
If I have an H-1B extension and I-485 pending at the same time and my H-1B extension is denied, can I stay in the US?
While you would no longer have H-1B status (assuming your current H-1B status is expired—if it's still valid, you would be H-1B until the expiration and then) you would be in a “period of authorized stay” [for how long?]
I'm in H-1B status with a newly approved I-140, can my spouse apply for employment authorization right away?
If H-1B status is properly maintained and your I-140 is current and valid, your spouse should be able to apply for employment authorization right away.
I'm in H1-B status and recently crossed a land border into [country that shares border with US] and CBP did not stamp my passport when I re-entered the US.
It's not unusual for this to happen at land borders, it should not be an issue unless [possible scenarios? Existing issues with status, need to supply record of travels?]
My employer wants to file an H-1B petition for me as [E category] before I file for my STEM OPT extension, what impact will this have on my extension application?
Usually an H-1B petition will have no impact on a STEM OPT extension application. [Unless…more specificity here of when there would be an issue?]
For an H-1B petition, what does consular processing mean?
This just means that the beneficiary of the petition will use the approval to apply for a visa at a US consulate, as opposed to petitions filed on behalf of a beneficiary within the US.
I had to travel outside the US for an emergency after my H-1B cap case was filed and received an RFE when I returned that dealt with my travel dates and maintenance of status, how should I respond?
Unfortunately, any travel while a change of status is pending results in the request being canceled. The H-1B could still be approved for consular processing, but there's not really any way to respond to the RFE that would fix the cancellation.
I applied for change of status from [current] to H-1B and my [current status] I-94 will expire soon but my H-1B is still pending, do I have a problem?
Usually, you will be in a period of authorized stay while a change of status application is pending. [What is duration of authorized stay period? 30 days?]
I had an interview for my employment based I-485 a while ago and the case is still pending, would contacting my Congressperson make a difference?
If your priority date has remained current, contacting the office of your Congressperson may be helpful—USCIS is not infallible and sometimes loses track of applications.
I am a [profession] on H-1B and my employer has multiple worksites—originally, I only worked at one, but now he/she wants me to work at an additional site. Does this require a new LCA?
This depends on whether the additional work site is within normal commuting distance of the original site—if yes, then no new LCA will be necessary (note that if your hours or job duties change substantially an H-1B amendment must still be filed). But if not, you will probably need to file an amended H-1B petition as well as a new LCA.
My H-1B extension was denied and my I-94 expired, but my employer has filed an appeal, what is my current status?
You are currently out of status and may be here unlawfully—your employer filing an appeal does not grant you any status. Outside of the appellate process, any other petition or application filed once you're out of status should be for consular processing. If you remain in the US, you will most likely be issued a Notice to Appear (first step in removal proceedings) and should consult an attorney about how to proceed.
If my pending H-1B extension is denied, can I leave the US and re-enter on a B1/B2 visa?
While this seems like a plausible course of action, you should be aware that there are potential problems, for instance your H-1B extension denial could result in you being in the US unlawfully. You should also be aware that for people who have been in the US for an extended period of time on H-1B status, Customs and Border Protection may be more inclined to deny you entry as a B1/B2 visitor.
I'm in H-1B status with an amendment pending and my I-94 expires [distant future date], what happens if my amendment is denied?
If your employment is still available, you should be able to work through your original H-1B petition end date. Rarely USCIS will make a negative “status” determination in denying an H-1B amendment application, in that case you would be in the US unlawfully and need to leave.
When an H-1B change of employer is approved, when do I need to start work with the new employer? How long can I continue to work with my original H-1B employer?
As long as your original H-1B employer's approval remains valid, you can continue to work with them. You don't ever have to start working for the new employer, and in the event that you don't join them within 60 days, that employer should withdraw their H-1B petition.
I applied for an H-1B visa [abroad], but it was sent for administrative processing—while it was pending, I got a [better] job offer from a different employer, can I transfer my H-1B to the other employer and receive a stamp upon approval of the new petition?
You should be able to schedule a new interview based on a new H-1B petition, but you will likely have to withdraw the pending visa application.
I received an RFE for my H-1B petition and so did my spouse on his/her H-4 application, is it okay to send the responses to both in the same envelope?
There's no problem, in fact, you should send both responses in the same envelope to make sure USCIS receives the files together.
My I-94 is valid until [future year], can I travel out of the US while I have an H-1B amendment pending?
It used to be the case that you could leave the US as long as your existing H-1B status and “stamp” were current, but under this administration the better course of action is to wait for your amendment to be approved so that there will be no question when you try to re-enter the US.
My online case status shows that my H-1B extension has been approved, when will I receive the notice in the mail?
Generally, you should receive the I-797 notice 7-10 days after your case status is updated electronically.
I had two H-1B petitions (from different employers for different projects) selected in the lottery, can I let both cases continue, or do I need to withdraw one?
As long as the employers and employment obligations are truly unrelated, there is no need for you to withdraw either. If you receive approvals on both, you will have to decide on one and then the employer you do not select should withdraw their approved petition. Withdrawing the H-1B is the petitioning employer's responsibility, not yours.
I'm on OPT and received an approval in my H-1B lottery case with a start date of [X], can I change my employer before [x]?
You will not have H-1B status until X, for you to change your employer would involve the original H-1B employer withdrawing their approved petition. This withdrawal before the start date of [X] could mean the loss of your “cap number” and H-1B eligibility. You should consult an attorney for advice pertaining to the facts of your case, but generally no change of employer should be attempted prior to an approved H-1B start date.
When do I found out if my H-1B cap petition was approved? **dependent on when asked**
There is no definite answer but based on cases our firm dealt with last year, most H-1B cap receipt notices will finish being sent out by the end of May.
How long does USCIS take to respond to an RFE response (normal processing)?
Usually, USCIS will respond within 60 days of receiving an RFE response, but they don't have a deadline—some cases may take longer.
I have permanent residence status in Canada and am in an H-1B position in the US, can I live in Canada and make a daily commute across the border for work?
Generally, this should be possible, but you should consult with an attorney regarding the specific facts of your case prior to relocating just to be sure. As long as your H-1B job and worksite remain the same you should not have to file for any amendment.
I'm in H-1B status and my I-94 is valid, but I have an amendment pending, can I travel overseas without any negative immigration consequence?
While USCIS previously issued a memo stating that traveling with a pending amendment was okay if your passport had a valid H-1B visa and you carried the receipt notice for your amendment with you…under this administration, the safest course of action is to wait until your amendment is approved before leaving the country.
I have a pending H-1B lottery case, can I travel out of the US?
If you leave the country while your H-1B petition is pending, the petition will be converted to consular processing. So, if your petition is approved, in order to be in H-1B status you would need to get your visa “stamp” at a consular office.
While I'm on H-1B, is it possible for my parent(s) to come to the US with me as a dependent?
Your parent(s) are not eligible for H-4 status, but an extended B-2 Visa may be an option for him/her/them under the category of “household member.”
Is there any way to verify if my employer has filed an H-1B petition for me?
You will need to check with your employer, there is no way for H-1B beneficiaries to independently check unless you get the receipt number for the filing.
I'm currently H-1B, can I change status to F-1 to [further my education] and then return to H-1B status?
You should be able to apply for a change of status to F-1 to get [x degree] and then have an employer file an H-1B petition on your behalf so you can resume the remainder of your 6 years of status.
I've been H-1B for [x amount of time less than 6 years] but will now be changing to F-1 status to pursue a degree in a different field. After I graduate, will I need to re-enter the H-1B lottery to gain employment?
No, a degree and seeking work in a different field has no impact on your having already been counted against the H-1B cap—so long as your initial H-1B period was less than 6 years you should remain cap-exempt.
I changed status to H-1B last year and am currently valid but don't have an H-1B visa stamp, I will be traveling to [border city/state] soon, will the lack of stamp be a problem?
While travel inside the US shouldn't present a problem, in [border city/state] there may be immigration checkpoints—they're not looking for a valid visa stamp. What you need is proof of status: your valid passport and copy of I-94 should suffice.
I have a change of status from H-1B to F-2 pending, can a new employer file an H-1B for me now?
While it's possible, you should be aware that the last approval to take effect would determine your status. You should consult with an attorney so that you do not end up in F-2 unable to accept gainful employment.
If I change to a new H-1B employer can my spouse continue working with his/her H-4 EAD?
Yes, your change of employer should not affect your spouse's EAD. But if the I-140 approval is less than 180 days old, the employer may still revoke it and your spouse's EAD would not be extended.
I applied for an H-1B visa at a consulate and received a 221(g) notice, is it okay for another employer to file an H-1B petition on my behalf while the 221(g) case is pending?
Yes, the other employer can file an H-1B petition for consular processing. [What if 221(g) case resolves favorably and the other H-1B petition is also approved? Is first in time valid? Does beneficiary have their pick of employer?]
How does consular processing for H-1B work if the beneficiary is in the US?
The H-1B approval will not come with an I-94 card—ordinarily the beneficiary would need to leave the US and return with a valid H-1B status.
A new employer has filed an H-1B change of employer petition on my behalf, while that's pending, I'm staying with my original H-1B employer. Will it be an issue if my original employer files an H-1B extension for me during this time?
No, you can have multiple H-1Bs filed on your behalf [provided they are from legitimately different/unrelated employers] with no problem.
I'm about to reach the 6-year maximum of H-1B time, so I have applied for change of status to [x, actual question says H-4]. After I change status to X, if I obtain an I-140 approval, could I use that to return to H-1B?
Yes, in most cases, those who are in a current legal status and were previously in H-1B status will be able to use a valid I-140 approval to extend status beyond the 6-year maximum.
I'm currently in H-1B status and will soon be going abroad to visit family, I need to go to the consulate to get a new visa stamp, how does [USCIS memo] impact me?
The USCIS memo only impacts adjudication of H-1B petitions. In any case consulates may request more information to ensure that an H-1B job is/remains legitimate.
What is an Alien Number? Do I get one if my H-1B is approved?
An A Number is generally assigned to identify an immigrant after there has been a petition approved on their behalf OR if they have been in removal proceedings. There will not be an A number on your H-1B approval notice unless you have received an I-130 or I-140 approval before and that was disclosed in the petition.
My H-1B petition was selected in last year's lottery but ultimately denied. That denial was appealed, can I re-apply to this year's lottery while the appeal is pending?
Yes. A pending appeal of an H-1B case doesn't prevent other H-1B petitions/lottery entry.
Can I file an H-1B change of employer petition if I'm out of the 60-day grace period?
If the 60-day grace period has expired, that does not prevent you from being the beneficiary of an H-1B petition—it will however need to be filed for consular processing (meaning you will need to travel outside of the US to gain status).
I'm currently employed by a 501(c)(3) nonprofit while on OPT, do they qualify as a cap-exempt employer for H-1B purposes?
Not all non-profits meet the requirements for cap-exempt employers, without more information, the answer is “maybe.” If your nonprofit employer is “related to” or “affiliated” with an institution of higher education or does research, it is possible they will be considered cap-exempt.
I was working for one employer in H-1B status but switched to a new employer when they filed a change of employer petition on my behalf. If the change of employer petition is denied, can I return to my original H-1B employer?
As long as your original H-1B employer's petition is still valid (and they did not withdraw when you left for the other employer), nothing should you prohibit from returning to that employment.
If my H-1B change of employer petition is denied, can I keep working with my current employer?
Yes, a USCIS denial of a change of employer does not cancel/discontinue your otherwise valid H-1B status with your current employer.
Can I change status from H-1B to F-1 even if I have an approved I-140?
While there's no bar to this status change, an approved I-140 indicates immigrant intent that's not compatible with F-1 status, so denial is likely.
While I was working on OPT, my employer filed an H-1B petition for me that was denied. I then transferred my SEVIS program to another course of study so that I could continue work on CPT. My employer is going to file another H-1B petition, will USCIS be questioning my maintenance of F-1 status? If they find out that my CPT wasn't properly authorized (and I violated F-1 status) will my H-1B petition be denied?
USCIS will require evidence of maintenance of your current status, so it's possible that they may find you to have violated your F-1 status if the CPT wasn't properly authorized. However, failure to maintain status will not necessarily result in denial of your H-1B petition, it is possible that it could be approved for consular processing, and you would then need to travel outside of the US and apply for your H-1B visa from there.
I received a 221(g) notice at my H-1B visa interview and it has been [length of time] without any further information, is there anything that I or my employer can do to expedite the case?
Currently consular processing in your situation takes 2-3 months, you may try to e-mail the consulate directly but that is not guaranteed to gain a response much less a result. The 221(g) notice comes from the consulate, USCIS has very little to do with that stage of your visa application.
Can I work for more than one H-1B employer at the same time?
Yes, so long as each H-1B employer petitions and receives approval on your behalf.
My OPT expires [future date] and I'm being sponsored for an H-1B cap case this year, but I need to travel out of the country for a few weeks, will this impact my H-1B petition?
If you leave or are out of the country while your H-1B case is pending, it will only be approvable for consular processing (not change of status). So, in the event that your case is selected in the lottery and approved, you would need to leave the US and apply for an H-1B visa from there.
Is there a new/proposed rule that would prevent people from extending H-1B status beyond 6 years?
At this time no such regulation has been proposed. Extension of H1-B status is also based on law, so any change would need to be approved by Congress.
Can I have H-1B petitions from more than one employer pending with USCIS? If both/all my petitions are approved, do I then have my pick of employers?
Yes, multiple H-1B filings are permitted. And in the scenario where all your pending petitions are approved, you do the choice of employment is yours. [After you make a selection, the employers you did not pick should withdraw their approved petitions].
Can an H-1B extension denial be appealed? And can the beneficiary stay in the US while the appeal is pending?
H-1B extension denials can be addressed by filing an appeal or a motion to re-open/reconsider within 33 days of the denial. Neither of those avenues provide for legal status, so if your current H-1B status has expired you will be accruing time for unlawful presence purposes. To stay in the US during the pendency of an appeal/motion to re-open/reconsider is a dangerous gamble, if the beneficiary is still denied, they will face the penalties for the time they remained out of status.
I'm changing to a new H-1B employer where my job title will be [X]—will this be an issue/questioned by USCIS?
The job title itself is not as important as the job duties listed, and selection of the proper SOC (standard occupational classification) code used for the LCA filing by the H-1B employer. As long as USCIS recognizes what's filed with the LCA and reflected by the documentation in support of the H-1B petition as a specialty occupation, the job title itself should not be an issue.
My H-1B change of employer was denied and my I-94 has already expired. How do I change employers?
Unfortunately, your options are limited, once your I-94 expired you were out of status and began to accrue time towards unlawful presence. To pursue employment in the US, you will likely have to leave the country and find a new H-1B employer to petition on your behalf, gain approval, and then obtain an H-1B visa stamp abroad before being able to properly return on H-1B status.
My H-1B change of employer petition has been pending for more than 240 days, do I need to stop working?
The 240-day limit usually applies to extensions with the same H-1B employer after your I-94 has expired. For a change of employer, you should be able to continue while the petition is pending.
H-1B related: I was working in F-1 status on OPT based on a pending H-1B petition, my OPT employment authorization ended [x date] while my petition was still pending. USCIS denied my H-1B petition [less than 2 months later]. I then tried to transfer my SEVIS record to another program of study, but my DSO told me because my records reflected degree completion, I would have to leave the US, is this right?
Usually you would have a 60-day grace period after the end of your OPT employment on [x date] during which you should be able to transfer your SEVIS record to another course of study or prepare to leave the US. However, your situation is becoming more common with the government refusing to put students SEVIS records back in active status so that they can change their course of study during the grace period. Until there's a uniform policy, your DSO is not wrong—you will most likely have to leave the US or re-apply for F-1 status based on your admission to a new program of study.
Is it true that the H-1B minimum salary has been raised to [x: actual Q = $90,000, $130,000]?
No such proposal has become law, many immigration related bills are introduced in Congress but few ever pass. <For the latest legislative developments in immigration, check our current events section.>
I received an H-1B visa “stamp” [x] years ago, but never went to the US and the H-1B employer later revoked the petition. I'm currently sponsored for H-1B status now, do I need to re-enter the lottery?
Being approved for an H-1B petition and receipt of a visa stamp generally means that you have already been counted against the H-1B cap and are now exempt—able to file with another employer at any time.
When is someone counted against the H-1B cap? Approval of a cap case or some other event?
USCIS has been inconsistent on this issue; one answer is that yes, approval of a cap-subject petition (that isn't revoked before October 1) means that the beneficiary is counted against the cap. But the language of the INA contemplates a broader definition of those who “[receive] a visa” or are “otherwise granted” H-1B status. One interpretation of that is that if your H-1B petition has been approved for consular processing but you never receive a visa stamp, then you are not counted against the cap. So, it would be prudent to discuss the specific facts you are concerned about with an attorney if you find yourself questioning whether you're cap-exempt.
COMMONLY ASKED: Can I travel outside the US while my application for change of status from [X] to H-1B is pending?
If you leave the US while you have an H-1B change of status application pending, that change of status will be considered abandoned and the application, if approved, will be sent for consular processing. In that event you will have to travel outside of the US and apply for an H-1B visa from overseas.
H-1B related: Can my employer sponsor me for a green card while I'm on OPT or do I need to be in H-1B status first?
There's no bar to the green card process being started while you're on OPT. There is no requirement to be in any special visa status for a green card to be sought.
Can a start-up or firm with very few employees be an H-1B petitioner? Does such a petition have a lower chance of being approved?
There is no minimum number of employees required to be an H-1B petitioner, so long as the employer has a need for a specialty occupation position to be filled and an EIN they can file.
While these petitioners are usually required to submit more documentation to demonstrate the legitimacy of their business to USCIS, if filed properly there should not be issues with approval.
USCIS online case status shows that my H-1B petition was denied, will my employer/the attorney/authorized representative/etc. receive an e-mail with the reasons for denial?
USCIS does not issue denial notices via e-mail—receipt will be either by fax or regular mail.
I am reaching the end of the 7-year period for L-1A status and have an approved I-140, can I switch to H-1B status once the 7 years is over?
First, time spent in L-1A status usually counts towards the 6-year maximum period for H-1B status. And while a valid I-140 can be used to extend H-1B status beyond 6 years, it can not be used to extend L-1A status.
Second, an I-140 approval alone does not make you H-1B cap-exempt, if you had been previously counted against the cap, it would not be an issue to change to H-1B status. If that's not the case for you, you will need to enter the H-1B lottery in order to have a chance of gaining the status.
I changed to H-1B status but was previously on OPT and had time left, is there any way to revert status and use that remaining time?
Most likely no, that period of OPT time is lost once you change to H-1B status.
I filed an H-1B extension shortly before my I-94 expired, can I apply for a change of employer while my extension is still pending?
While you will be in a period of authorized stay, timely filling of an H-1B extension followed by I-94 expiration usually means a change of employer (commonly referred to as an H-1B transfer) will only be approved for consular processing.
Is it true that H-1B cases with level 1 wages are being denied?
No, our firm has seen a number of H-1B RFEs with level 1 wages, but an RFE is not a denial—it is still possible to properly respond and receive approval. For more specific advice pertaining to your case, please consult an attorney.
I received an RFE on my H-1B [extension] petition questioning my job duties with a level 1 wage, how likely am I to be approved?
RFEs are being regularly issued on petitions with level 1 wages, it's possible to successfully respond, but a more detailed answer would have to involve the specifics of your case.
If I file for an H-1B change of employer do my H-4 dependent(s) also need to file a transfer?
Dependents of a primary H-1B beneficiary who has filed for a change of employer are not required to file a transfer, but it's not uncommon for them to do so in order for status end dates to all match.
I am [outside the US] with my H-1B cap case pending, can I apply for a visitor visa? Will this impact my H-1B petition?
While it's possible for you to apply for a B-2 visa “stamp,” but there's a good probability you will denied as the pending H-1B petition shows immigrant intent (incompatible with visitor status). Even if that visa is denied, it should not have any impact on your pending case.
What sort of evidence can be shown at the consulate to prove that I'm working with a client?
Similar to what you would submit a response to an RFE, the consulate is looking for an end-client letter acknowledging your duties, details of the project you are working on, and the location/contact information. If the client is unwilling to write a letter, you will have to put submit as much evidence to prove the same as you can.
Do I still have a 60-day grace period if an employer revokes my H-1B approval?
The grace period should apply even if an H-1B employer has withdrawn their approved petition.
When does the 60-day grace period start for someone in H-1B status—the date of termination or the last paycheck?
The grace period starts to run from the day an H-1B employee is terminated.
If I'm H-1B and quit my job, do I still get the benefit of the 60-day grace period?
The most current regulatory language suggests that the grace period applies to voluntary as well as involuntary termination.
I'm currently in H-1B with an H-4 change of status and EAD application pending, can I continue working?
You can continue working on H-1B status until you receive approval of your change to H-4, after that you will need to wait for your H-4 EAD approval to resume employment. Sometimes your EAD will be approved at the same time as your change of status to H-4, but this is not something you should count on.
Can my original H-1B employer revoke their approved petition while I have an H-1B transfer to a new employer pending? Is there any way to prevent this?
An employer petitioner can always revoke their approved H-1B petition. However, f your new employer filed the H-1B transfer while you were still in valid H-1B status, your old employer's revocation should not have any negative impact on your status.
I was working in H-1B status but was fired and the employer revoked the approved petition. I switched to H-4 status, can an employer file an H-1B petition on my behalf now?
Usually yes, once you received the H-1B approval and were counted against the cap, regardless of your termination and the revocation, a new employer should be able to file a petition on your behalf without having to enter the lottery.
I'm about to max out my 6 years of H-1B time and have an approved I-140 with my current employer. Can I file for an H-1B transfer to a new employer or an extension of status even if the position with the new employer is completely different from what I do with my current employer?
The approved I-140 from your current employer (provided more than 180 days has elapsed) will typically allow you to extend H-1B status beyond the 6 years.
I have [x time] left in H-1B status but USCIS granted me an H-1B extension that is [x] years beyond the 6-year maximum, does this mean it's okay for me to continue work after the 6-year mark?
Most likely no, this was probably an error on the part of USCIS that you should not rely on. When USCIS makes a mistake that won't excuse any time accrued in unlawful presence or detrimental impact on your status. Unless you have an approved I-140 that can be used to extend your H-1B status beyond the 6 years, you should plan to either change to another nonimmigrant status that you qualify for or prepare to leave the country.
I'm currently in H-1B status with an approved I-140, if I change to H-4 EAD, will this impact my green card case?
Most likely no, the I-140 approval and priority date will not be affected by any change in nonimmigrant status.
I'm on OPT and my H-1B petition was selected in the lottery, but the project it was filed for will end soon—what happens if an RFE is issued, can I move to a new project?
While it's not uncommon, someone in your situation should consult an attorney. It's likely that the project's end date will result in the H-1B petition's denial and your options for salvaging it are fairly limited—finding a new client within commuting distance of your current employer may be a solution, but even this gets mixed results from USCIS.
If my H-1B extension is denied, can I change employers?
As long as your I-94 is not expired, you should be able to file for a transfer. And an expired I-94 would lead to your application being sent for consular processing (meaning travel outside the US and getting a visa stamp at the consulate to re-enter on H-1B status with the new employer).
I have a pending appeal of the denial of my PERM, can I use this as a basis for extending H-1B status beyond the max 6-year period?
If your appeal has been pending for more than 1 year, you should be able to get a 1-year H-1B approval with any employer.
Will being in H-1B status make my family-based green card application be processed any faster?
No, your non-immigrant status will have no impact on the wait time for an immigrant visa. You can expect a wait time of up to [sibling-sponsored: 10] years.
My employer claims an I-140 was approved but refuses to give me the receipt number, is there any way for me to get this on my own?
You should be able to submit a Freedom of Information Act (FOIA) request to USCIS and get ahold of most of the I-140 filling.
I'm currently in H-1B status, can I file two change of status applications (one to F-1 and one to H-4) at the same time?
While there's no prohibition on simultaneous filing of multiple change of status applications, keep in mind that the last application to be approved will govern your status. So as soon as your preferred status is approved, be sure to withdraw your other application(s)—beware that sometimes withdrawal requests are ignored/overlooked and the later (undesired) change of status may go into effect anyway.
Can completion of a 1-year online master's degree program qualify for H-1B master's cap?
A master's degree from an accredited public university will qualify for the master's cap, even if the course is completed online/distance-learning.
If I have a degree from a university that lost its accreditation what impact will this have on my H-1B petition?
As long as the university had its accreditation when you received your degree, USCIS will regard that as an accredited degree—the university's loss of standing after conferral should not have any adverse effect on you.
I will be working in [foreign country] for a year while in H-1B status, do I need to file an amendment showing my work location in [foreign country]?
You can only be in H-1B status if you are working in the US—nothing needs to be filed if you are working overseas. However, when you return to the US an amendment may be required if your work location or job duties have changed.
My visa application was denied at the consulate, is it possible for an attorney to accompany me?
Attorneys are not permitted to be present during visa interviews, but you can have your counsel contact the consulate by phone or e-mail following the interview.
How soon after H-1B approval can I apply for a visa “stamp”?
Consulates will typically be willing to accept your application starting 90 days before the date your H-1B position will begin.
Would tickets for speeding and running a red light impact my H-1B petition/renewal?
Most likely no—low-level traffic offenses should not affect your H-1B case.
I was in H-1B status working for [x amount of] time but changed to H-4 and my H-1B petition was revoked, am I prevented from returning to H-1B status now?
Unless USCIS revoked your H-1B petition on the grounds of fraud, you should remain cap-exempt and able to return to H-1B status without going through the lottery again.
My H-1B petition was selected in this year's lottery, can I switch employers before October 1st?
While USCIS has permitted some beneficiaries to make a change of employer before October 1st or the start date of their petition, it's not recommended that you try to do this on your own. You should wait for your “cap” petition (with the original employer petitioner) to be approved or until after October 1st (whichever is later) otherwise you run the risk of having your cap case denied/losing your cap number and H-1B eligibility.
I want to stay with my current employer until my H-1B change of employer has been approved. Will USCIS inform my current H-1B employer that another employer has filed an H-1B transfer on my behalf?
Typically, USCIS will not disclose any information to your current H-1B employer about a transfer filed by another company.
My H-1B was selected in [previous year]'s lottery but I received a denial, do I have to go through the lottery again?
Yes, you will not be regarded as cap-exempt just because your petition was selected in a previous lottery, actual H-1B approval is required in order to forego the lottery.
My H-1B petition was filed with regular processing on [past date], can I upgrade to premium processing now because the original filing date was [before premium processing deadline]? **dependent on the year's premium processing dates**
No USCIS is no longer accepting premium processing filings beginning [x date], once [x date] passed, you cannot change to premium even if you filed prior to that. Premium processing is expected to resume [whatever date given by USCIS].
Can I be F-1 and H-1B at the same time?
No, you can only be in one non-immigrant status at a time. Consult with an attorney if you are interested in how to work while in F-1 status or study while in H-1B.
I've heard that [job title: computer programmers] are no longer eligible for H-1B status, is this true?
USCIS did issue a memo stating that entry-level computer programmers would not automatically be considered a “specialty occupation” for H-1B purposes, this does not mean computer programmers are being denied status wholesale. Instead, the burden is on the petitioner to demonstrate that the position they want to fill with an H-1B employee meets the criteria for a specialty occupation in line with its designated SOC code through evidence of the specific job duties and qualifications required.
Can I come to the US if I have a pending H-1B amendment?
Previously there was guidance stating that you could enter the US if you had a valid H-1B visa “stamp” and the receipt notice for your H-1B amendment or extension. But under the current administration, this is probably not advisable, and you should wait for approval.
I'm currently working on OPT in F-1 status and my employer will be filing an H-1B on my behalf for the October 1 start date, there is also another H-1B employer filing for me, but I would prefer to stay with my current employer. If the other employer's petition is the only one that gets approved, is there any way for me to transfer that H-1B to my current employer? Or can I stay by continuing to work on OPT instead?
To remain on OPT you would need any approved H-1B petition to be withdrawn before October 1. And then you should make sure that you contact your designated school official (DSO) to check that your SEVIS record was not marked as completed upon the approval you withdrew. Once October 1 passes and you have an H-1B approval, that will be your status and you should start work accordingly. If you want to return to the employer, you are currently with, they will need to file an H-1B transfer for you after that date.
My employer filed an H-1B amendment for me that has been pending for some time, now another amendment is necessary—do we need to wait for approval on the first amendment or can we file while it's pending?
There is no reason to wait for the first amendment to be approved and while premium processing is not in effect, filing while a previous amendment is still pending is fairly common.
Would an H-1B petition from one employer have an effect on a PERM case filed by a different employer?
H-1B petitions and PERM/I-140 cases are independent of one another and there should be no impact one way or another.
I left the US in [x month/year] after using the full 6 year of H-1B time, can I enter this year's lottery with a new H-1B petition?
After 6 years of H-1B status, individuals must typically travel and remain outside of the US for a full year as of the time of filing before they can be sponsored in the H-1B lottery.
When H-1B premium processing is suspended, does that include extensions and transfers too?
Yes, suspension of premium processing applies to all H-1B filings.
Does an H-1B extension filed for the same position at the same work site require a new LCA?
If the LCA from the original filing is still valid, it can be used, but be aware that the extension will only be approved for the remainder of the LCA's duration. If the LCA is expired, then, yes, you need a new LCA in order to file an H-1B extension even if everything remains unchanged from the original petition.
Will there be fewer H-1B cap cases permitted this year?
ANSWER PER USCIS COUNT FOR YEAR INQUIRED ABOUT.
Do I need to stay with the employer 180 days after their successful filing of an I-140 for me in order to extend my status? Can I move to a new employer before that period is over?
The 180-day period is not one which you need to stay with the employer, it is the amount of time that the I-140 must remain valid (not revoked by that employer).
We responded to an H-1B RFE, but the case was still denied. Do I get my filing fees refunded?
No, your filing fees are not contingent upon approval. USCIS only returns filing fees when an H-1B case is not selected in the lottery.
On H-1B status can I travel between the continental US and Puerto Rico if I don't have a visa stamp?
Puerto Rico is a territory of the United States, you only need valid ID to board the plane.
I worked for [less than 6 years] in H-1B status back in [past year] and returned to my home country. Can an employer now apply for H-1B on my behalf as cap-exempt and reclaim the remainder of H-1B time?
Currently there is no expiration on unused H-1B time, so an employer should be able to sponsor you for H-1B without having to enter the lottery.
My H-1B was approved for employment at a non-profit, am I able to transfer to a for-profit company?
The answer depends on whether the initial H-1B employer was cap-exempt—not all non-profits qualify as such. If they were cap exempt, then either the for-profit company would need to sponsor you for an H-1B cap case through the lottery or you maintain the non-profit and for-profit positions at the same time.
I'm currently on OPT, if my H-1B petition is approved, will I need to travel outside the US for stamping? If not, can my dependent (who is abroad) receive a stamp?
Unless your H-1B petition was sent for consular processing, there will be no need for you to receive a stamp. Assuming your dependent qualifies for H-4 status, he/she should be able to apply for a stamp at the consulate
I've been working on OPT after graduating with a master's degree from a private nonprofit US university that lost its accreditation. Can my employer file an H-1B for me under the master's cap?
Master's cap petitions require the degree to be from a US accredited public or non-profit university. USCIS may look to the school's accreditation at the time the degree was conferred as well as when the H-1B petition is filed. So, to avoid issues later, your employer may want to file the petition under the regular cap.
Do the job duties listed on my H-1B extension need to match those used for my approved I-140?
If the H-1B employer was the one who filed the PERM that was the basis for your approved I-140, then the job duties should be similar. But if your approved I-140 comes from a different employer, this is not something to be concerned about.
Can someone working in H-1B status also have an H-4 EAD?
No. You can only be in on non-immigrant status at a time—an H-4 employment authorization document requires H-4 status, which is incompatible with currently being on an H-1B visa.
I worked in H-1B status for [less than 6 years] and then left the US for [more than 1 year], now an employer has filed a cap-exempt H-1B petition for me. Do I have a full 6 years of H-1B time now?
No. The cap-exempt petition filed will recapture the remainder of the 6 years of H-1B time you have. In order to “reset” the clock, an employer would have to file a regular cap petition (entering the lottery again) after you have been outside of the US for more than one year.
My STEM OPT expires [date], which is when my employer will file an H-1B petition for me, do cap-gap protections apply in my case?
As long as your OPT does not expire before the H-1B petition is filed, you should qualify for cap-gap protection.
How long does an H-1B change of employer case take with regular processing? Can I upgrade to premium processing later?
At this time, USCIS is taking in the neighborhood of [6 months] to adjudicate H-1B cases with standard processing. Provided there is no suspension of premium processing, you should be able to upgrade at a later date.
If I have an H-1B amendment pending, can I still file for a change of employer? Does the new employer need to be notified about my pending amendment?
If your I-94 is valid, you should be able to file an H-1B transfer even if you have an amendment pending. There's no need to notify your [potential] new employer about the pending amendment. However, you should consult an attorney just to be sure about the facts of your specific case.
I have been in H-1B status for 5 years (having changed from F-1) and have not left the US at all in this time, so I don't have a valid H-1B visa “stamp.” Will there be a problem if I seek a stamp now?
Since your H-1B petition was just a change of status and not sent for consular processing, it is not unusual for you not to have a “stamp.” The “stamp” is a travel document and not necessary for H-1B status—the delay in seeking a “stamp” for travel purposes should not make any difference.
Can I really start working with a new employer as soon as an H-1B transfer is filed on my behalf? Are there any risks to this?
While it's true that you can immediately begin working with the new employer upon their filing, the risk is that USCIS may deny your petition for a change of employer and you would be left without any valid status.
My initial H-1B status was obtained via a master's cap petition (even though I graduated from a for-profit university) and now USCIS has issued a notice of intent to deny on my latest H-1B petition (based on the cap issue), what can I do in this situation?
It's very likely that your current H-1B petition will be denied, but there are potential arguments to be made and you should consult with an attorney about the specifics of your case.
If my H-1B extension is denied, do I have to stop working immediately or can I continue to work through the end of my current H-1B status?
You can continue to work until your H-1B status expires, extension denial notwithstanding.
Can I attend school full-time while in H-1B status?
As long as you maintain your employment as described by the approved H-1B petition, there should be no problem with pursuing your education as a full-time student.
If my H-1B was filed with regular processing, can I upgrade to premium now? Will this make it more likely I'll receive an RFE?
If premium processing is available, there should be no problem with “upgrading” any time after you've filed. Our firm does see more RFEs issued on petitions filed with premium processing due to the time constraints placed on USCIS making a decision in such cases.
I'm in H-1B status with a valid stamp, if I change to H-4, can I still travel outside of the US and re-enter on my H-1B stamp?
Once you change to H-4 status, you cannot use your H-1B stamp for travel purposes (except to Canada or Mexico for under 30 days). You will need to obtain an H-4 stamp to properly return to the US on H-4 status.
Can a single H-1B petition cover working at two different sites on two different projects?
Yes, the H-1B employer can file an LCA for multiple worksites and different projects and once that is approved, such an H-1B petition can be filed. An itinerary will usually be required accounting for where the beneficiary will be and when.
My employer filed an H-1B amendment for me 2 months after I moved to a new employer, is this cause for concern?
If by “new employer,” you mean a new end client/new job site (but ultimately your employment agreement/the right to control remains with the H-1B employer who filed the amendment in question), then it is clear your employer should have filed the amendment prior to your relocation (unless the new end-client is within normal commuting distance from your original job-site). If, however, “new employer” means you have an approved H-1B transfer, your old employer filing an amendment has no impact on you.
Do I need to be paid while on maternity leave in H-1B status?
H-1B employees are entitled to the same rights as other workers, under current US law maternity leave can be unpaid, so you will not be violating status if your leave is unpaid.
Is it okay to collect gambling/lottery winnings while on H-1B status?
Winning is not the issue, provided you're not gambling enough for it to qualify as another job, there's no issue with occasionally gambling.
Do I need a new visa stamp for traveling once my H-1B amendment is approved?
Unless your current “stamp” is expired, you can still travel on it. An H-1B amendment doesn't require you to get a new stamp.
I recently moved to a new client, but an RFE was issued for my pending H-1B cap petition asking for a client letter, can I submit a letter from the client I'm at now?
No, the RFE from USCIS is seeking a letter from the end-client noted in your original filing. If you send a letter from the current client, this will most likely result in a denial.
I'm about to max out of my 6 years of H-1B time but due to [compelling medical reasons: actual Q states beneficiary has premature newborn that must remain in the ICU] I'm unable to travel/leave the country. Can my H-1B status be extended for medical reasons?
The 6-year maximum for H-1B status is set by law and there are no exceptions for humanitarian reasons. People in situations like yours, truly unable to travel, may attempt to apply for a change of status to B-1/B-2, but be aware that you won't be allowed to work.
I was laid off from my H-1B employment and have filed for a change to B-2 status, if I find another job can I go back to H-1B by having that employer file for me with premium processing?
Most likely your return to H-1B status would have to come from a petition sent for consular processing—the immigrant intent of H-1B status makes the transition from B status problematic and unlikely to be accepted as a simple change of status.
My H-1B is pending and I'm on cap-gap, can I complete a master's degree at another university, and will the new SEVIS number affect the processing of my H-1B case?
Your SEVIS record is still active on cap-gap, so it will simply be transferred to the new university (no new number issued) when your master's program starts. As far as your H-1B case, this will only be reflected as you continuing to maintain valid F-1 status.
I'm H-1B and signed a 2-year commitment with my current employer, but I am not happy and wish to change employers. Will USCIS deny my transfer request because of the offer letter I signed?
USCIS does not get involved with employment-related contractual disputes. While H-1B employers are not allowed to penalize beneficiaries for wanting to seek other employment, you should consult with an attorney who specializes in employment law as to whether the offer letter you signed is truly binding.
I have an approved H-1B petition for full time employment and another for a concurrent part-time position, should I include both on my visa application?
The visa will only be granted on the basis of one petition, but the consular officer needs to be made aware of the other.
I'm an H-1B employee at company A and have a transfer pending for company B. After approval, can I remain with company A for 6 months more before moving to company B?
While it's possible to remain with company A (so long as they do not revoke their H-1B approval) and transfer to company B after 6 months…this is not a good idea for company B (and if they have legal counsel, they will probably be advised not to accept this course of action on your part) and may cause problems for you when seeking later status adjustments, visa applications, etc..
How far in advance can I apply for an H-1B extension?
H-1B extensions can be filed 6 months prior to the requested start date.
I will be laid off by my H-1B employer in 30 days, what do I do if I can't find a job before I'm laid off and USCIS is notified? Is it possible to change to B or F status?
Your H-1B status will end the last day of your job, filing for change of status will require you to be in current valid status. I would recommend that you consult with an attorney further about the specifics of your case.
December of this year will make 6 years of H-1B time for me, if I leave the US prior to October 1, will I be able to apply for a “fresh” H-1B in next year's lottery?
No. You need to be outside of the US for a full year at the time that the petition is filed on your behalf in the lottery to be eligible for 6 more years of H-1B time. Next year's lottery will start in April, it's already too late for you at this point.
My H-1B was selected in the lottery but I received an RFE based on the client letter and the case was denied. Is there an appeals process? Or can I apply for H-1B with a new employer without entering the lottery?
You can file an appeal or a motion to re-open/reconsider within 30 days of the denial. Barring a successful outcome there, you are not cap-exempt and will likely have to re-enter the lottery next year with a new H-1B petition.
My employer filed an H-1B extension for me prior to expiration of my I-94. After that I received approval on an I-140, do I need to wait for the extension to be approved before filing an I-485?
To gain I-485 approval, there cannot be more than a 180-day gap between the filing and an approved status period. So, while you can file the I-485 with the H-1B extension pending, depending on when your I-94 expired, it's possible you should wait for the extension to be approved rather than risk denial based on exceeding the 180-day period.
I received an H-1B visa stamp from my old employer, but that passport is expired now, can I still travel on this stamp or do I need to go for stamping again?
If the stamp in your expired passport is still valid you can use that by simply presenting the old passport along with your current passport and the receipt notice for your new employer's approved H-1B.