GENERAL H-1B QUESTIONS

Q: What is an H-1B?

A: An H-1B is a nonimmigrant visa or status allowing skilled professionals in specialty occupations to work in the U.S. on a temporary basis. The employer in the H-1B application process is the petitioner, while the alien is the beneficiary. The alien must usually possess at least a bachelor's degree or an acceptable foreign alternative, although sufficient work experience may serve as a substitute for education requirements. H-1B status is usually given to engineers, professors, researchers, software programmers, and other foreign professionals. Aliens are typically permitted to work for a total of six consecutive years in the U.S. in H-1B status.

Q: What is USCIS?

A: U.S. Citizenship and Immigration Services (USCIS) is the federal agency responsible for matters involving aliens in the U.S. Such responsibility includes jurisdiction over immigrant petitions, such as those requiring a labor certification, although DOL itself still oversees the labor certification process. Prior to March 2003, USCIS was called the Immigration and Naturalization Service (INS). For a brief period, it was known as the Bureau of Citizenship and Immigration Services (BCIS). It is also sometimes simply called CIS. In our practice and online, we use the current accepted name: U.S. Citizenship and Immigration Services or USCIS.

Q: What is DOL?

A: DOL stands for the U.S. Department of Labor (DOL), which deals with the prevailing wage and Labor Condition Application (LCA) aspects of an H-1B petition.

Q: What is the difference between H-1B status and an H-1B visa?

A: H-1B status is a nonimmigrant status issued by USCIS. An H-1B visa is a nonimmigrant visa issued by a U.S. embassy or consulate abroad. Legal status allows you to stay legally in the U.S., while a visa allows you to travel to the U.S. legally and seek admittance. Once you enter the U.S. using an H-1B visa, you become an H-1B status holder. In short, status allows you to stay in the country, while a visa allows you to enter the country.

Q: What are the steps for filing an H-1B petition?

A: The following steps are generally required to file an H-1B petition:

1. Obtain a job offer from an employer located in the U.S.;
2. Obtain the prevailing wage for your job from the National Prevailing Wage Center (NPWC) or a private survey;
3. File an LCA and obtain approval from DOL;
4. Complete USCIS's H-1B forms and include a petition letter provided by the employer;
5. Submit a completed and signed H-1B petition to USCIS.

Note that our firm guides clients during steps 2 through 5 above. For more detailed information on the H-1B application process, click here.

Q: How long does it take to obtain H-1B status?

A: It usually takes two to three months for USCIS to approve an H-1B application. However, the alien worker or the sponsoring employer may request “premium processing” by paying an additional $1,225 fee. With premium processing, a case is adjudicated within 15 calendar days; otherwise, USCIS will refund the fee. You can find more information about premium processing here.

Q: How long in advance can I apply for an H-1B prior to actually starting H-1B employment?

A: You may apply for an H-1B visa six months before starting the H-1B job, but no earlier than six months. However, due to the H-1B cap, there is a huge rush to submit applications as soon as possible when the filing period begins (usually April 1). For instance, the H-1B cap for fiscal year 2018 was reached five days after the filing period began.

Q: What is the six-year H-1B limit?

A: Generally, when an H-1B alien has stayed in the U.S. cumulatively for six years, that alien is prohibited from further extending his or her H-1B status. Instead, the alien is required to change to a different status or leave the United States. An alien must stay outside the U.S. for one year before reentering as an H-1B status holder. However, there are some exceptions that allow an H-1B holder to extend H-1B status beyond the six year limit (such as during the green card application process).

Q: Is the attorney fee for an original H-1B application and an H-1B transfer the same?

A: Yes. Zhang & Associates typically charges an identical attorney's fee for either an original or transfer H-1B application since the amount of work required by the attorney is generally the same.

Q: Where is an H-1B petition filed?

A: All cap-exempt H-1B petitions should be submitted to the California Service Center. Other H-1B petitions can be filed at either the California Service Center or the Vermont Service Center, depending on the geographic area of employment. Please visit the USCIS website or contact your immigration attorney to determine the appropriate filing location.

Q: How does USCIS calculate the length of an alien’s H-1B status?

A: The total amount of time or length of status under an H-1B is the cumulative time that an H-1B worker has worked for all of her employers under H-1B status. The time she spends outside of the U.S. while her H-1B status is valid can be deducted from her H-1B maximum length limitation. This is referred to as “recapturing time abroad.”

PREVAILING WAGE AND LABOR CERTIFICATION

Q: What is a prevailing wage?

A: The prevailing wage is defined as the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment. The petitioning employer will pay the H-1B employee the higher of:

1. The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
2. The prevailing wage level for the occupation in the “area of intended employment,” which is defined as the Metropolitan Statistical Area (MSA) or the narrower Primary Metropolitan Statistical Area (PSMA).

Q: Which government agency determines the prevailing wage?

A: The National Prevailing Wage Center (NPWC) is charged with determining the prevailing wage. State workforce agencies (SWAs) are no longer involved in prevailing wage determinations.

Q: What are the key factors used to determine the prevailing wage for a position?

A: Factors used in determining a prevailing wage include:

• Job title;
• Job description;
• Educational and work experience required;
• Job location; and
• Type of employer (i.e. academic, government, or private)

Let’s consider the process of determining a prevailing wage through three examples.

Case Study 1

Flora and Bora are both professors of biochemistry. The two women have the same educational experience, and the job positions they’re currently in have the same job descriptions. Flora is employed by a university in Bloomington, Indiana, while Bora works for a college in New York City.

Everything else being equal, due to the differences in the area of employment, i.e. location and cost of living at these locations, the prevailing wage for Bora will be higher than the prevailing wage for Flora, even though they’re in equivalent job capacities.

Case Study 2

Momo and Shaniqua are social science researchers. Both live in Seattle, and their jobs require the same level of education and work experience. The University of Washington hires Momo, while a private company employs Shaniqua.

Everything else being equal, since they are employed in different sectors (i.e. public vs. private), their prevailing wages will be different, with Momo’s prevailing wage lower than Shaniqua’s.

Case Study 3

Ariel and Ursula are marine biologists who both live in San Diego, and have similar education and work experience. Sebastian’s, Inc., a private company, employs both of them. Ariel is a research scientist, while Ursula is a postdoctoral researcher.

Everything else being equal, since Ariel occupies a more senior job position and her job description accordingly encompasses more duties, Ariel’s prevailing wage will be higher than Ursula’s.

Q: How long does it take Zhang and Associates to obtain a prevailing wage level?

A: Not much time at all. Generally, we can obtain your prevailing wage level on the same day you request it.

Q: What is an LCA? What’s the difference between LCA and PERM labor certification?

A: LCA stands for Labor Condition Application, which is part of the H-1B nonimmigrant visa application process. An LCA is filed with DOL and contains a series of attestations including, among others, an agreement to pay H-1B employees at least the prevailing wage for the position in question. In most cases, an LCA may be filed online and approval will be received not long thereafter.

PERM stands for “Program Electronic Review Management,” and it is part of the permanent residency application process. PERM is the system used in labor certification applications. The system was developed by DOL to streamline the filing and processing of labor certifications for foreign workers, and went into effect on March 28, 2005. All labor certifications filed after this date are required to be filed in accordance with PERM regulations. In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the job market before filing the application. If no qualified and willing U.S. workers, including U.S. citizens and permanent residents, are found during recruitment, then the employer can submit a PERM application. When filing, the employer or its attorney must submit ETA Form 9089 either online or by mail. The main distinctions between PERM and the previous labor certification process is that, under PERM, labor certification applications can be submitted online; most cases are adjudicated within a three-month timeframe; recruitment requirements are standardized (and more expansive); and no supporting documentation is required at the time of filing (however, if the PERM application is selected for an audit or review, then such documentation must be filed). 

On a general note, the regulatory standards for applying for an LCA are much lower than those governing PERM labor certifications.

Q: How long does it take for Zhang & Associates to obtain an approved LCA?

A: Because electronic filing is available, we can generally obtain a certified LCA within seven business days of the date we submit an employer’s ETA Form 9035.

Q: Should the title and salary in my H-1B petition match those in my LCA?

A: Yes, since H-1B-sponsoring employers are required to pay either the prevailing wage or the actual wage paid to similarly situated workers, whichever is greater.

Q: How do I know if my salary offer meets the prevailing wage requirement?

A: We recommend that you consult an experienced immigration attorney who will be able to match your salary offer against USCIS’s accepted benchmarks.

PREMIUM PROCESSING

Q: What is the premium processing fee?

A: Premium processing is an expedited service that allows you to obtain a decision on your H-1B petition within 15 calendar days of receipt by USCIS. The service costs $1,225 and this fee cannot be waived. The premium processing fee must be submitted in a separate check or money order (do not include both fees in one check).

Q: How do I file a request for premium processing?

A: You should complete and sign Form I-907 (Request for Premium Processing Service), and submit this to the appropriate USCIS Service Center with a separate check for $1,225. The I-907 should be sent to the service center where your I-129 (Petition for Nonimmigrant Worker) is either currently pending or being filed. Be sure to send the forms to the address specifically designated as the Service Center's Express Mail Address. Don’t forget to read our page about premium processing here.

Q: Who is eligible for the premium processing service?

A: Premium processing is available to those employers who file a Form I-129 to classify a beneficiary under one of the following categories: E-1, E-2, H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, TN, R, and Q-1.

Q: What are the advantages and disadvantages of premium processing?

A: The primary advantage of premium processing is that you will receive a decision within 15 calendar days of the receipt of your application by USCIS. However, if the quota has already been reached at the time of filing and the petition is subject to the annual H-1B quota, USCIS will reject the petition just as it does with non-premium processing cases. 

The primary disadvantage of premium processing is the steep $1,225 fee. However, if USCIS does not process your application within 15 calendar days, the agency will refund the fee and still continue to expedite adjudication of your application.

Q: Whom should I contact about the premium processing request that I filed?

A: You should contact the Service Center where you filed your petition (either the Vermont or California Service Center). The California and Vermont Service Centers’ premium processing e-mail address can be found on the current I-129 instructions. At time of writing, they are csc-premium.processing@dhs.gov and vsc-premium.processing@dhs.gov, respectively.

BASIC REQUIREMENTS

Q: What are the requirements an H-1B employer needs to meet?

A: A petitioning employer’s two major requirements are as follows:

1. The H-1B employer must have the ability to pay its H-1B employee.
   • For instance, say John wants to hire a computer programmer for his start-up company. He promises to pay an alien worker $50,000 a year. However, he currently has only $800 in his company’s bank account. In this situation, John fails the “ability to pay” test.
2. The job offer to an intended H-1B beneficiary should be a bona fide offer.
   • In other words, there must be real business needs for the position to be filled by an alien worker.

However, there’s more to an employer’s requirements than the above. To see what specific requirements apply to your case, it is best to obtain legal advice from an experienced attorney. In the meantime, you can find more information on our H-1B requirements page.

Q: What kind of legal responsibilities do employers have to assume for their H-1B employees?

A: The employer must ensure that:

1. The employer will pay the H-1B employee the higher of:
   
   
   • The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
   • The prevailing wage level for the occupation in the intended area of employment.
2. Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
3. There is no current strike or lockout involving the prospective H-1B worker's position at his workplace;
4. The employer will provide notice of filing of the requisite LCA to the employees’ collective bargaining representative for the H-1B occupation or, if lacking such a representative, will conspicuously post such notice at the work site for either 10 consecutive days or within 30 days before filing the LCA;
5. The employer will maintain for public examination:
   
   
   • A copy of the LCA filed,
   • Documentation of the salary paid to the H-1B employee,
   • An explanation of how the actual wage was determined, and
   • Documentation of the basis used for the prevailing wage;
6. And the employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates employment prior to the end of the authorized employment period.

Depending on the type of violation committed by the employer, civil penalties may be assessed ranging from $1,000 to $35,000 per violation. Furthermore, employers who commit certain violations may be prohibited from participating in the H-1B program or other immigrant programs for a minimum of one year.

Q: How do you define “financial resources?” Is the company required to make a certain amount of money in order to be eligible to sponsor an H-1B petition?

A: No, a petitioning employer doesn’t even necessarily have to be profitable in order to sponsor H-1B workers. Employers ultimately need to show they have the cash flow or equity reserves to pay the H-1B employee(s).

Consider the following.

Background

XYZ is a nascent tech company that has not yet reached profitability. It has, however, received $3 million in investment funding, and has demonstrated a real business need to hire a foreign worker.

Is XYZ eligible to petition for an H-1B worker?

Yes. Although XYZ is not yet profitable, it is able to pay its employees using the $3 million cash reserves. The company is therefore eligible to sponsor H-1B petitions.

Background

ABC is an IT consulting company currently operating without a profit. However, it has signed a contract with a client to work on an IT project starting October 1, 2019. The client will pay engineers from ABC $120 per hour for the prospective job.

Is ABC eligible to petition for an H-1B worker?

Yes. Since ABC will be able to pay its new employees working on this project when they start work on October 1, the company is eligible to sponsor H-1B petitions.

Q: What are the major requirements for an H-1B employee?

A: The major employee requirements for H-1B workers are listed below:

1. Specialty occupation
   
   
   • A specialty occupation requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include, but are not limited to: engineers, nurses, professors, researchers, computer programmers, and other professionals.
2. Educational requirements
   
   
   • The position usually requires that the alien possess at least a bachelor's degree or its equivalent. If the applicant was awarded his or her degree from an institution not located in the U.S., that degree will have to be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a U.S. degree or its equivalent, no prior employment experience is required.
3. Work experience
   
   
   • If an alien does not meet the educational requirements, degree-equivalent experience or training may be substituted. In general, USCIS considers three years of professional experience to be the equivalent of one year of college education.
4. Licensure
   
   
   • If a license is required under state law to practice a specific specialty occupation, the alien worker must hold the appropriate license.

Let’s consider these H-1B worker requirements in an example.

Background

Niall, an Indian national, has been working as a network analyst for more than six years. He has an associate’s degree in computer science, which entailed two years of college education. Niall now wishes to apply for H-1B status so he can work in the U.S. in the same occupation.

Does Niall meet H-1B employee requirements?

Yes. Specifically, the minimum educational requirement has been met because every three years of related work experience can be deemed one year of college education. In Niall’s case, two years of college education can be substituted by his six years of work experience. This work experience, combined with his two-year associate’s degree, therefore ensures Niall meets the minimum four-year degree requirement.

Of course, there’s more to worker requirements than the above. To see if you qualify for an H-1B visa, it is best to obtain legal advice from an experienced attorney. Until then, see our H-1B requirements page for more information.

Q: What does “benching” refer to?

A: “Benching” occurs when an employer stops paying an H-1B employee when his or her work is not currently needed. When business slows down or the alien has no work to do, employers might stop paying them and resolve to start paying them again after business picks up. In other words, benching refers to an employer paying an H-1B employee only when necessary. Per DOL rules, benching is no longer allowed. And so if business slows, an employer must continue to pay the H-1B employee or else terminate the employment.

In short, the only way the employer can stop paying wages to an H-1B worker is by bona fide termination of employment. An employer cannot pay H-1B wages only when it deems it beneficial to do so.

Background

Kevin is an H-1B employee who works for Season’s Greetings, which manufactures seasonal products. During the summer, demand for their products is very low, and Kevin has little to no work to do. Season’s Greetings is considering not paying Kevin until the busy autumn season picks up in a couple months.

Can Season’s Greetings stop paying Kevin for just a few weeks?

Absolutely not. Kevin’s employer must either lay him off or continue to pay him the full wage, even if Kevin is not performing any work.

EDUCATIONAL REQUIREMENTS

Q: What should I know about H-1B educational requirements?

A: H-1B educational requirements specify that the alien must possess at least a bachelor's degree or its equivalent. If the applicant was awarded a degree from an institution outside of the U.S., that degree must be evaluated to determine if it is comparable to a U.S. degree. If the alien possesses a U.S. degree or its equivalent, no prior employment experience is required.

However, professional work experience can be substituted for education: USCIS generally considers three years of professional work experience as the equivalent of one year of college-level education. Using this formula, for example, an alien worker lacking a bachelor’s degree would need to have 12 years of relevant work experience to meet the minimum education requirements.

In addition, your degree and the position you wish to hold must be related. If an alien worker is applying for a job as a stockbroker, for instance, the worker should have a degree in finance or economics.

Let’s explore the above in two real-world examples.

Background

Lois Lane would like to come to the U.S. from Germany to work as a journalist. She has a bachelor’s degree in mathematics, and has been working as a copy editor at Der Spiegel for one year.

Would Lois Lane meet H-1B educational requirements?

Unfortunately, no. Her four-year degree is unrelated to the position she seeks, and she has accrued only one year of relevant work experience.

Background

Aditi, an Indian national, has a bachelor’s degree in physics. She hopes to come to the U.S. to work as an engineer.

Would Aditi meet H-1B educational requirements?

Yes, Aditi does satisfy the educational requirements since she has a bachelor’s degree in a field that is related to her intended occupation.

For more information on educational (and other) requirements, click here.

Q: I have an associate’s degree, which required only two years of schooling, from a college in my home country. Can my work experience substitute for the additional college education required?

A: If an alien does not meet the educational requirements, degree-equivalent experience or training may be substituted. USCIS generally considers three years of professional experience the equivalent of one year of college education.

Cue another real-world hypothetical.

Background

I.T. Pei has a two-year associate’s degree in computer science from his hometown in China, and has been working as a network analyst for more than six years. He wants to apply for an H-1B visa to work in the U.S. in the same capacity as his current job.

Would I.T. Pei meet the minimum educational requirements for an H-1B?

Yes, the combination of I.T. Pei’s two-year degree (in a relevant field) and six years of professional work experience, which is considered equivalent to two years of college education, satisfies the minimum H-1B educational requirements.

Q: I actually did not continue my education after high school (secondary school). Could I still qualify for an H-1B?

A: Perhaps. It may be possible to qualify for H-1B status without holding a bachelor’s degree if you have sufficient professional work experience in a field related to your proposed H-1B employment. If you have no education, a minimum of 12 years of professional experience may substitute for a four-year bachelor’s degree. Time spent in degree programs that you didn’t complete may also be used to meet H-1B requirements, provided you have accompanying professional work experience and a detailed credential evaluation is obtained.

Consider these real-world hypotheticals.

Background

Cristal would like to come to the U.S. from her native El Salvador on an H-1B visa to work as a systems analyst. Cristal has never gone to college but has gained extensive experience over the past 12 years working as a systems analyst in San Salvador.

Even though she lacks postsecondary education, would Cristal meet H-1B educational requirements?

Probably. Even though Cristal does not have a bachelor’s degree, she may still qualify for an H-1B by substituting her 12 years of experience for the education requirement. Since every three years of work experience can substitute for one year of education, Cristal’s 12 years of working as a systems analyst will substitute for four years of college-level education, which just so happens to be the minimum requirement.

Background

Juan, a Mexican national, is a computer programmer. Juan attended college for a bachelor’s degree, but after three years in the program, Juan quit studying and started working as a computer programmer. He’s been in this job position for the past three years.

Even though he lacks postsecondary education, would Juan meet H-1B educational requirements?

Again, it’s probable. Even though Juan did not complete his bachelor’s degree program, his three years of study may still be used towards the H-1B requirement. Assuming that a detailed credential evaluation pans out, Juan’s three years of college study plus his three years of professional work experience would be considered equivalent to four years of college-level education.

Q: I have an undergraduate degree from a foreign country. Would that count for H-1B purposes?

A: It depends. All foreign degrees need to be evaluated on an individual basis to determine whether they are equivalent to an undergraduate degree offered by an accredited university in the U.S. Our firm helps clients obtain foreign degree evaluations through a third-party credential evaluation service.

THE H-1B CAP

Q: What is the H-1B cap?

A: The H-1B “cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on H-1B visas (or authorized to change to H-1B status if already in the U.S.). You are subject to the cap if you are applying for a new H-1B visa or if you are petitioning to change your status to H-1B status from another nonimmigrant status (such as F-1, L-1, J-1, etc.). Read more about the H-1B cap in our article on the topic.

Q: What is the current H-1B cap?

A: There are actually two H-1B caps: one for applicants with bachelor’s degrees (known as the “regular cap”) and one for applicants with a master’s degree or higher (known as the “master’s cap”). Congress has authorized an annual maximum of 65,000 visas available in the regular cap, and 20,000 visas available in the master’s cap.

Among the 65,000 regular cap spaces, a maximum of 6,800 visas is reserved for foreign workers subject to the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

For additional information on current H-1B cap issues, refer to here and here.

Q: Are all H-1B petitions subject to the annual cap?

A: No. The following H-1B petitions are not subject to the yearly numerical limitations set by Congress:

1. Petitions for H-1B status extensions;
2. H-1B petitions sponsored by institutions of higher education (or a related or affiliated nonprofit entity), governmental research organizations, or nonprofit research organizations;
3. H-1B petitions for concurrent employment where the alien worker is presently in H-1B status that was subject to the H-1B quota;
4. H-1B petitions to change employers where the current H-1B holder was subject to the H-1B quota;
5. Those who have had H-1B status in the past six years who were subject to the H-1B quota; and
6. Those seeking H-4 dependent status (i.e. a spouse or children of an H-1B visa holder).

 CHANGING JOBS AND MULTIPLE H-1Bs

Q: Can I apply for multiple H-1Bs?

A: Yes, you can apply for multiple H-1Bs. You are allowed to work for more than one U.S. employer, but must have an I-129 (Petition for Nonimmigrant Worker) filed by each petitioning company.

Also, note that as long as you are in H-1B status and have been counted against the H-1B quota in the past six years, your petition to work for another employer concurrently is not subject to the cap.

Consider the following.

Background

Howard has been working for Company A as an H-1B employee for one year; he was previously subject to the H-1B cap. Howard would now like to work for Company B as well.

Can Howard work for both companies as an H-1B employee?

Yes. In order to do so, Howard must have Company B file an H-1B petition for him and receive a new H-1B. This new application will not be subject to the cap since Howard already gained H-1B status through the cap when Company A sponsored him a year ago.

Q: Can I have a part-time H-1B job? If I currently have H-1B status under my full-time employer, is there anything I need to do?

A: Yes, you can have a part time H-1B.

A U.S. employer may petition for a part-time H-1B job on your behalf. As long as your work hours are at least 50 percent of the normal full-time hours in your industry, and provided you satisfy all other requirements for an H-1B, you can also obtain part-time H-1B status.

Alternatively, if you already have H-1B status, you can apply for a concurrent H-1B for another part-time job. In this situation, there is no set number of hours that you must work for each employer. You should ask the new prospective employer to apply for a part-time H-1B visa on your behalf. You are permitted to keep two or more concurrent H-1Bs.

Q: I am in H-1B status now, and I would like to change jobs. How long does it take to obtain a new H-1B with a new employer?

A: If you would like to change jobs, your new prospective employer must file a new H-1B application and pay all the applicable fees. The procedure is similar to that of the initial H-1B petition filed by your current employer. It generally takes between two and three months to obtain approval of an H-1B petition submitted by a new employer. However, you may begin working for your new employer as soon as the new H-1B petition is filed with USCIS, provided you are not subject to the H-1B quota.

Q: When can I legally begin to work for a new employer if my current H-1B employment status was subject to the H-1B Cap?

A: As soon as the new H-1B petition is filed on your behalf with USCIS.

Consider this example.

Background

Sam works for King Tut’s, the company that sponsored his H-1B status. His H-1B was subject to the cap. Currently, Sam is considering taking a job with Cleopatra, another company.

When is Sam permitted to start working for Cleopatra?

Sam can resign from his position at King Tut’s immediately after Cleopatra has submitted an H-1B petition on his behalf with USCIS.

Q: My current H-1B sponsor is an institute of higher education and therefore eligible for the H-1B quota exemption. I now want to change my job and work for a private company. Can I work for the private company as soon as a new H-1B petition is filed by the company?

A: You can in two situations: either when your prospective new employer’s H-1B petition is selected and approved in the annual quota, or otherwise if you had H-1B status in the past six years and were already subject to the H-1B cap.

Q: Does my previous employer have to cancel my H-1B?

A: No, this isn’t required.

Q: What documents regarding my first H-1B employment do I need to present for a new H-1B petition filed by a new employer? I’m seeking to merely transfer jobs.

A: Whenever you transfer from one H-1B employer to another, USCIS may ask you for evidence that you maintained proper H-1B status by working for the previous employer. This evidence usually includes paycheck stubs and possibly an employment verification letter.

Q: While working for Employer A, I was in H-1B status. I quit working for Employer A and converted to H-4 status. Now, another employer has offered me a job and applied for an H-1B on my behalf. Can I begin working for Employer B while waiting for H-1B approval?

A: Potentially. If your first H-1B with Employer A was, within the past six years, subject to the H-1B quota, you will be able to begin working for Employer B as soon as the petition is submitted. If your first H-1B was not subject to the quota and your new employer is not cap-exempt, you cannot begin working for Employer B until the new H-1B petition is filed, selected in the quota, and approved.

Q: How do I know if my H-1B transfer has been filed with USCIS?

A: USCIS sends petitioners of H-1B transfers a receipt, which serves as confirmation that your H-1B transfer was successfully filed. A certified return receipt for an H-1B transfer petition issued by any post office branch should also be sufficient evidence that your H-1B transfer has been filed. A delivery confirmation by an express mail company can also serve as confirmation of filing.

Q: I was previously in H-1B status but am now in F-1 (student) status. I would like to re-apply for H-1B status. Is my new petition for H-1B status subject to the H-1B quota?

A: If your previous application was subject to the H-1B cap within the past six years, you will not be subject to the cap again. However, if you have been out of the U.S. for more than one year, you will be subject to the cap, regardless of whether or not your previous H-1B position was subject to the quota.

Q: As a current H-1B employee who was subject to the quota, what do I need to know about the “portability rule?”

A: A current H-1B employee who has already been subject to the H-1B cap in the past six years may start to work for a new employer when the employer files a new petition. You do not have to wait for the petition to be approved before starting work for a new employer in this situation.

Consider this hypothetical to clarify the above.

Background

Todd, a Taiwanese national, is an H-1B worker who was subject to the quota. He has worked for his current employer for one year and now wishes to change employers. Todd has snagged the perfect job with a new employer, Company X. Company X files an H-1B petition for Todd so that he can work for Company X. The petition is received by USCIS on January 23, 2018.

When can Todd begin working for Company X?

Because of the portability rule, Todd can begin working for Company X on the day it receives a notice that USCIS received the petition it filed on Todd’s behalf, i.e. January 23, 2018.

LOSING A JOB WHILE IN H-1B STATUS

Q: Can a U.S. employer discharge an H-1B employee because there are other qualified U.S. workers available? If so, does the discharged H-1B employee have any legal claim (e.g., discrimination) against the employer?

A: A U.S. employer is permitted to replace H-1B workers with qualified U.S. workers. The H-1B employee has no claim like discrimination since U.S. employers have the statutory right, but not the obligation, to give job preference to U.S. workers over H-1B workers. However, when an H-1B employee is hired, he or she cannot be treated differently from similarly situated U.S. workers.

Let’s look at an example.

Background

Drumpf, Inc. employs dozens of H-1B employees in the construction industry. Because of political considerations, it searches for a pool of U.S. workers with the same qualifications as the current H-1B employees. After finding these U.S. workers, Drumpf, Inc. decides to fire all of its H-1B employees, replacing them with the qualified U.S. workers it found.

Is Drumpf, Inc. allowed to replace all of its H-1B workers with U.S. workers at once?

Yes. Moreover, the company is not committing a violation and therefore cannot be sued by the terminated H-1B employees for discrimination. 

Q: I anticipate that my current employer is going to lay off many H-1B employees, myself included. I want to stay in the U.S. What should I do?

A: In anticipation of an impending layoff, you have the following options:

1. You should actively seek other employment opportunities and secure an alternative employer willing to file a new H-1B petition for you before you are laid off by your current employer. Bear in mind that a part-time job also qualifies for H-1B petitioning purposes.
2. If you decide to go back to school, you should start the application process as early as possible to get an I-20 before being laid off. This will enable you to quickly change to F-1 student status. Bear in mind that many community colleges can issue I-20s on the same day the application for admission is filed, provided all requirements are met. This offers a temporary reprieve for H-1B holders to keep lawful status in the U.S. after being laid off.
3. Aliens with dependent spouses should encourage their spouses to seek job opportunities or to apply for academic programs, and to get independent status (i.e. H-1B or F-1), so that they may change their status to be dependent on their spouses' status (i.e. under H-4, or F-2) after being laid off.
4. Those who have relatively strong research backgrounds might be able to qualify for permanent residency under EB-1 or EB-2 NIW petitions. While their applications are pending, they should try to keep independent nonimmigrant status. If that's not possible, we suggest that they consult with an experienced attorney and file Forms I-140 and I-485 concurrently, which gives them valid I-485 pending status. (Please be aware that the concurrent filing option may not be available for nationals of India, China, and perhaps other countries for EB-2 NIW because of the visa backlog.)

Q: I am currently in H-1B status but was recently fired. Can I change my status to B-2 (tourist) to remain legally in the U.S. ?

A: As soon as your employment with your H-1B sponsor is terminated, you immediately lose H-1B status. USCIS officers used to be allowed to exercise their discretion in granting another nonimmigrant status if an alien applied for one within 10 days after losing status. However, since April 2002, USCIS has practiced a zero tolerance policy. This means that if you are out of status, adjudicators will not be likely to approve a change of status. In addition, you must prove you possess bona fide nonimmigrant intent when you seek to change your status to B-2. We recommend you consult with an experienced immigration attorney regarding this complicated matter.

Q: I am currently in H-1B status but was recently fired. Can I change back to H-1B status once I get a job offer?

A: You can only apply for a change of status if you are already in valid status, and losing your H-1B employment immediately terminates your H-1B status, meaning that you will not be in valid status. However, if you applied to change to another status before you were laid off, your pending change of status qualifies as being in valid status. If you have been laid off only for a short period of time, and even if you have not filed for a change to another status, you could still try to file a new H-1B transfer application. USCIS may or may not use its discretionary power to grant you a new H-1B.

Background

Mr. Lin filed his change of status from H-1B to H-4 a week before he was fired.

When will Mr. Lin be eligible for a new H-1B visa?

While Mr. Lin’s change of status application is still pending, a new H-1B petition can be filed on his behalf.

Q: My H-1B employer has laid me off. Now I am in the process of changing to F-1 (student) status. My H-1B I-94 has not yet expired. Can I work for my former employer if I am offered the same position again before the expiration of my H-1B I-94?

A: If you have been laid off, your H-1B is no longer valid, even though you have a valid H-1B I-94. If your former employer offers you the same position as before, it will still need to apply for an H-1B visa on your behalf.

Q: I have an H-1B from my previous employer, which did not cancel the H-1B after I quit my job and started to work for another employer under a new H-1B filed by said employer. Can I go back to work for my previous employer without filing an H-1B again?

A: Yes.

Q: I was laid off by my employer, but the expiration date of my H-1B status (as stated on my I-94 card) is next year. Am I still in valid H-1B status?

A: No. Your H-1B status is tied to your employment. Thus, after your employment is terminated, you are no longer in valid H-1B status, even though your I-94 may still be valid until a later date.

Q: I received a letter from my employer notifying me that I will be laid off at the end of this month, but that he will give me a month of extra pay. When will I be considered no longer in valid H-1B status?

A: You are considered no longer in valid H-1B status when your employment terminates, which in this case, is the end of this month. The fact that your employer will give you a month’s extra pay, which technically means you are earning wages until the end of next month, doesn't change the time of termination of your employment.

Q: I heard that after being laid off, an H-1B holder has 10 days to change to another status. Is that true?

A: Strictly speaking, no. USCIS has made it clear that there is no such 10-day grace period. H-1B status holders are officially out of valid status at the time their employment is terminated. However, as of January 2017, a new regulation makes available a grace period of up to 60 days for certain nonimmigrants, including H-1B holders, who have fallen out of status. Such a loss of status could stem from the end of authorized employment or even from the sudden loss of an H-1B worker’s job. Note that USCIS has the authority to approve or deny the grace period, and is empowered to stipulate how many days a certain out-of-status H-1B holder can enjoy during an approved grace period. For more information on this regulation, click here.

Q: I am an H-1B employee. What if I continue to stay in the U.S. after being laid off by my employer? Are there any negative consequences?

A: If you remain in the U.S. after being laid off, any future applications for adjustment of status may be denied for this reason. The longer you stay, the lower your chances of successfully changing to any other status in the future.

ISSUES WHILE IN H-1B STATUS

Q: Can H-1B employees take a long unpaid leave for personal or family reasons while still remaining in valid H-1B status?

A: Yes, H-1B employees may take long unpaid leave without affecting their status. Keep in mind that if leave is taken, you will not be paid. Furthermore, employers may terminate employment at any time for any reason, and if your employment is terminated, you will lose H-1B status immediately. 

Q: My employer's business has decreased dramatically. As a result, he asked me to take three months of unpaid leave and thereafter come back to work. Will I be considered to be out of valid H-1B status?

A: Yes, you will be considered to be out of status if your employer asks you to take unpaid leave. Moreover, the employer is in effect “benching” you, which is a violation of immigration law.

Q: What if my employer asks me to take vacation or a leave of absence, but still pays me full salary? Will I be considered to be out of valid H-1B status?

A: In this scenario, you’ll still be in valid H-1B status.

Q: What if my employer asks me to take vacation or leave, but pays me a partial salary? Will I be considered to be out of valid H-1B status?

A: It depends on many things, including your employer's salary schedule, your overall compensation from your employer, and other factors. We suggest that you consult with experienced attorneys regarding this scenario. Talk to a Zhang & Associates attorney by clicking here.

Q: I am not in H-1B status, and an employer has offered me a job. During the H-1B application process, can the employer revoke my job offer and terminate the H-1B process? If so, do I have any legal recourse?

A: Your employer may withdraw both your job offer and your H-1B petition before the H-1B petition is approved. Unfortunately, you do not have any legal rights against your employer if your employment is at will.

Q: I am in H-1B status now. If I am laid off, what must I do if I want to remain in the U.S.?

A: You may need to change to another nonimmigrant status (such as an F-1, F-2, or H-4) as soon as possible. As long as you file your change of status application in time, you will be allowed to remain in the U.S. while your case is pending.

Q: I am not currently in H-1B status, and my employer submitted the H-1B petition for me before the expiration date of my current status. My status has now expired but I still have not heard anything from USCIS regarding my petition. Can I legally remain in the U.S.?

A: It depends on whether or not the H-1B quota was immediately available to you when your status expired. If the H-1B quota was available at the time of expiration of your previous status and the employment starting date listed on the H-1B application is on the date of your status expiration, you may remain in the U.S. legally. Otherwise, you will be out of status.

Q: While my H-1B is pending, can I legally work for my employer?

A: If you have never been in H-1B status before and you do not have another permit to work (such as OPT or EAD), you cannot work until after the H-1B is approved. If you are the beneficiary of an H-1B transfer petition and there is no H-1B quota issue, you may legally work for the new employer as soon as the new H-1B petition is filed with USCIS.

Q: In what situations can an H-1B worker extend H-1B status beyond the maximum period of six years?

A: There are only two situations in which a foreign national in H-1B status can extend her visa status beyond the six-year limit.

Scenario 1

To apply for permanent residence, an H-1B alien might choose to file Form I-140 (i.e. employment-based immigrant petition) or a PERM labor certification application. If the worker filed one of these forms at least 365 days before the end of his six-year H-1B time limit and the application is still pending, then he can extend his H-1B status beyond the six-year limit.

In other words, he won’t be forced to leave the country since he’s waiting for a decision on his immigrant petition. The hypothetical worker can obtain this extension on an annual basis, and there is no limit to the number of times he can obtain it, provided his immigrant petition is still pending.

Let’s consider Scenario 1 in the context of a real-world example.

Background

Robert’s employer files a PERM application on his behalf on April 1, 2018, one month before Robert reaches the five-year anniversary of his H-1B approval (i.e. May 1, 2018). However, the PERM application becomes delayed due to randomly selected auditing. Fast forward to April 2019, and Robert’s six-year H-1B limit is slated to occur in just one month.

Will Robert have to leave the country if a decision on his PERM petition doesn’t come before May 1, 2019?

No, not necessarily. Since Robert’s PERM application is still pending, Robert’s employer can file an extension on his behalf so that he can remain in H-1B status beyond six years.

Now, if Robert’s PERM is approved before the six-year mark of his H-1B status, then Robert will need to file Forms I-140 and I-485 with U.S. Citizenship and Immigration Services (USCIS). Robert will be able to extend his H-1B status on the basis of these petitions, if the I-140 and I-485 are pending when his status lapses.

Scenario 2

An alien worker files an I-140 petition, which is approved. However, an immigrant visa number is unavailable to the alien due to retrogression in the relevant category. In such a situation, the alien can extend her H-1B status in three-year periods of time beyond the maximum of six years.

Let’s consider Scenario 2 in the context of two real-world examples.

Background

Ozzie is an aviation engineer from China. At the time he retains Zhang & Associates for a PERM case, Ozzie has only 10 months left before the end of his sixth year in H-1B status. Six months later, our PERM specialty team receives notice that Ozzie’s PERM application has been approved. Ozzie files his I-140 petition immediately thereafter. Because of severe visa backlogs for Chinese nationals, however, Ozzie cannot concurrently file his I-485 application with Form I-140.

With four months before Ozzie’s H-1B status expires, can Ozzie extend his H-1B status?

Yes, if his I-140 petition is approved before this date. If it is, then Ozzie’s employer can file an H-1B extension request based on the approved I-140 and the unavailability of visa numbers. If granted, the extension will last for three years, after which it must be renewed.

Background

Dr. Hoolahey is an Indian national currently in H-1B status. Six months before his six-year maximum, Dr. Hoolahey files a National Interest Waiver (NIW) I-140 petition with the help of our experienced attorneys. Three months later, the NIW is approved. However, because of severe retrogression in visa numbers for Indian nationals, Dr. Hoolahey is nable to concurrently file his I-485 application with Form I-140.

Is Dr. Hoolahey eligible for an H-1B status extension beyond the six-year limit?

Yes. Based on his approved NIW I-140 application, and because an immigrant visa number is unavailable to him, Dr. Hoolahey is eligible to extend his H-1B status for an additional three years.

It’s also possible for an H-1B worker to “recapture” time spent abroad during H-1B status. The six-year limit on H-1B status is based on a foreign national’s six years of stay in the U.S. So if an alien worker entered the U.S. and did not leave the country until her H-1B status expired, then her maximum time in H-1B status has occurred. Conversely, if an alien traveled outside the U.S. while in H-1B status, his time spent abroad isn’t factored into the six-year time limit. Note, however, that H-1B workers must request that their time spent abroad is recaptured; USCIS does not automatically initiate this process.

Q: Am I eligible to be the beneficiary of a new H-1B petition after having already exhausted the six-year limit under a previous H-1B visa?

A: Yes. To be eligible again, a foreign national must depart the U.S. for at least one year. Thereafter he or she qualifies for H-1B status with another six-year maximum through a new petition. After the individual has departed from the U.S., he or she must undergo the same application process that was necessary for the first H-1B visa. This includes securing an employment offer, the employer submitting Form I-129, being selected in the annual lottery, having the petition approved, and applying for a visa with a U.S. consulate or embassy that has jurisdiction over an alien’s place of residence abroad.

Consider the following.

Background

Jen, an Indian citizen, has reached the limit on the number of years she can remain in the United States with H-1B status. She wishes to work in the U.S. for another six years under a new H-1B visa.

What must Jen do to be eligible as the beneficiary of a new H-1B visa?

Jen has to return to India for at least one year. After she has secured an employment offer, Jen’s employer thereafter must submit Form I-129 and wait for approval, after which she can apply for a visa with a U.S. consulate in India. Upon approval of her application, she may return to the U.S. for up to six more years, provided her extension is approved after the first three years.

H-1B AND GREEN CARD (IMMIGRANT) PETITIONS

Q: Is there a relationship between applying for an H-1B and applying for an immigrant petition (i.e. a green card)?

A: No, the two petitions are independent of each other. You may apply for a green card with or without an H-1B, and an H-1B does not itself automatically lead to permanent residence.

Q: Can I submit an employment-based immigration petition before obtaining H-1B status?

A: Yes. An employment-based immigration petition does not require an H-1B petition. We have successfully helped many aliens obtain immigration petition approval before they obtained H-1B status. Moreover, filing an employment-based petition does not preclude one from being the beneficiary of an H-1B visa, as the H-1B classification is a “dual intent” visa.

Q: What does “dual intent” mean?

A: H-1B workers are permitted to have dual intent, which means that they can intend to come to the U.S. by way of either nonimmigrant or immigrant pathways. Accordingly, filing an immigrant petition, i.e. either an I-130 or an I-140, won’t affect the status of an H-1B application.

Q: Does the employer sponsoring my green card petition have to be the same employer that sponsored my H-1B?

A: No. While an H-1B employee may end up being sponsored for a green card by his or her H-1B employer, this is not required. Green cards relate to prospective employment, and an alien does not have to work for the petitioning employer until the underlying application for permanent residence is approved.

Q: I have already filed an I-485 (adjustment of status) petition. Do I still need to keep my H-1B status?

A: You might want to consider extending or maintaining your H-1B status because if you don’t and your I-485 adjustment is denied, you will be immediately out of status.

Q: How do I keep my H-1B status if my I-485 is pending and I want to travel abroad?

A: There are two ways to keep your H-1B status after traveling abroad. First, you can obtain an H-1B visa from a U.S. consulate in a third country or in your home country. This will allow you to come back to the U.S. to work for your H-1B sponsoring employer. Second, you can travel back to the U.S. with advance parole, which will allow you to continue working for your H-1B employer. You will also be able to request an H-1B extension or change of employer at a later date if you so choose.

Q: What is my status when I come back to the U.S. with an H-1B visa?

A: You are in H-1B status and your I-485 adjustment of status case is still pending.

Q: I’m currently in the U.S. under H-1B status and would like to travel abroad. Can I obtain an H-1B visa to come back to the U.S. while my green card application is pending?

A: Yes. By law, an H-1B visa allows dual intent. Therefore, you can obtain an H-1B visa for re-entry even if your PERM, I-140, or I-485 is still pending. In other words, your pending immigration petition should not be an issue when you apply for an H-1B visa at a U.S. embassy or consulate abroad. However, there are always risks involved when traveling back to your home country for visits. Alternatively, if you are already in the I-485 pending stage, you may use advance parole for travel. It is always a good idea to consult with an experienced attorney to avoid any problems.

Q: Do I have to apply for advance parole to travel abroad if I am in H-1B status and I have filed an I-485?

A: No. You can come back to the U.S. with an H-1B visa while your I-485 is still pending. Nevertheless, we suggest you apply for advance parole before you leave the U.S. This way, if for some reason you can’t obtain an H-1B visa overseas, you will still be able to return to the country with advance parole.

It is important to note that when you use an H-1B visa to return to the U.S., you must continue working for the H-1B sponsoring employer to keep your I-485 case pending.

Q: I was in H-1B status before traveling abroad but I came back to the U.S. with advance parole. What is my status now?

A: You are in parolee status, which means you can still work for your former H-1B sponsoring employer without an EAD card. To get back into H-1B status, you can file for an H-1B extension or change of employer. This act will end your parolee status and return you to H-1B status.

Q: I have an I-485 case pending, and I travel abroad without advance parole. If I come back to the U.S. with an H-1B visa and keep working for my former H-1B sponsoring employer, can I change employers later and file an H-1B transfer without jeopardizing my I-485 case?

A: Yes.

Q: I have an I-485 case pending. I am currently using an H-1B to work for my primary employer, but am also using an EAD card to work for another employer part time. Am I still in H-1B status?

A: You are no longer in H-1B status. However, you can use an EAD card to work for both employers. Also soon as you use the EAD card, your status is based on your pending I-485 adjustment of status case.

Q: My I-485 is pending, and I am in H-1B status. Can I keep my H-1B status even if I have a pending I-485?

A: Yes. More details about this topic can be found in our article here, but the following examples should help illustrate the relationship between H-1B status and a pending I-485 petition.

Sally

Sally is an H-1B worker who’s applying for both an EAD and advance parole. She can keep her H-1B status, since applying for an EAD or advance parole won’t affect H-1B status. However, it is important to note that while obtaining an EAD does not affect H-1B status, using it does. (For more details, see our article on this topic here.)

Ben

Ben is using an EAD to work for one employer and his H-1B to work for his H-1B sponsoring employer. Because Ben has petitioned for an adjustment of status and is currently using the associated benefits, i.e. the EAD, Ben is not in valid H-1B status.

Julia

Julia would like to use her advance parole to come back to the U.S. after a short trip abroad and continue working for her H-1B sponsoring employer. This will allow her to enter the country without obtaining a visa at a U.S. consulate abroad. Even if Julia uses her advance parole to come back into the U.S. without a valid H-1B visa, she can continue to work for her H-1B sponsoring employer. She will technically be in I-485 pending status. However, if she files an H-1B extension, she will be back in H-1B status.

John

John's spouse is currently in H-4 status and has also applied for an I-485 as a derivative beneficiary of John's immigration petition. John's spouse uses advance parole to re-enter the U.S. after a short trip abroad. Since John still has a valid H-1B status, John's spouse will keep her H-4 status.

H-1B AND CHANGE OF STATUS

Q: Can I change from H-1 status to F-1 (student) status?

A: Yes, you may file a request for change of status with USCIS after obtaining a completed Form I-20 issued by an approved school. Please note, however, that if you have filed an immigration petition before, your F-1 application may be denied by USCIS.

Q: I am currently in B-1 status. Can I obtain H-1B status?

A: Yes, if you satisfy the requirements for an H-1B visa. We have helped many B-1 visitors obtain H-1B status.

Q: I am in J-1 (exchange visitor) status. Can I obtain H-1B status?

A: Yes, you can obtain H-1B status if you satisfy all of the requirements for an H-1B, provided that you are not subject to the two-year home-country physical presence requirement associated with your J-1.

Q: I am currently in J-1 (exchange visitor) status and subject to the two-year home-country physical presence requirement. I do not have a waiver but would like to obtain an H-1B. What should I do?

A: We recommend that you consult with an experienced immigration attorney who may be able to offer some solutions based on your specific situation. Click here to contact a Zhang & Associates attorney who can help you with your case.

Q: If my employer petitions for an H-1B on my behalf, what should my spouse and children do?

A: Your spouse and children need to apply for H-4 status.

Q: My spouse is currently in H-1B status. Can I change my status from H-1B to H-4?

A: Yes. You should be aware, however, that an H-4 status holder is not permitted to work in the U.S. without obtaining employment authorization.

F-1 AND H-1B

Q: Can an H-1B employee go back to college or graduate school for further study? Do they need to change their status from H-1B to F-1? Under what circumstances is it unnecessary to change status?

A: An H-1B holder currently in valid status is allowed to go to school, either part-time or full-time, without an F-1. However, while the H-1B employee is attending school, she must continue to work for her H-1B sponsoring employer.

The H-1B employee will not be able to receive a teaching assistantship or compensation from her school, as that would require a change of status from H-1B to F-1. If the H-1B employee does not continue to work for her employer, she will lose H-1B status and must apply for a different status, like F-1.

Q: When an F-1 graduate is still in the OPT period, should he apply for H-1B? When should he apply for H-1B? What are the advantages and disadvantages of changing from F-1 to H-1B while the graduate still has several months of OPT left?

A: If you are in OPT (optional practical training) and have received a job offer, then you can apply for an H-1B as long as you meet all H-1B requirements, even if you have several months of OPT left.

One advantage of switching from F-1 to H-1B status is that it may be easier for you to re-enter the U.S. if you go abroad because H-1B visas allows for dual intent.

Another advantage of switching from F-1 to H-1B status while still having a few months of OPT left is that you’ll have something to fall back on if your H-1B application is denied (or if it isn’t even selected in the annual lottery for adjudication). Given that there have tended to be many more applications for H-1B visas than there are available H-1Bs, the H-1B cap is exhausted very quickly. Applications are selected via random lottery, with the unlucky petitions being returned to applicants unopened. If this happens to your application, at least you will still be in F-1 status and can rely on it as you plan your next move.

The following illustrations will help clarify the above.

Karen

Karen is an F-1 holder from Thailand and graduated in December 2017, which is when her OPT started. She is therefore allowed to work for a U.S. employer in OPT until December 2018. She’s strongly considering applying for an H-1B for fiscal year 2019 as soon as the filing period opens on April 1, 2018 (even though her OPT period has not yet finished).

The quota is almost certain to be filled quickly after April 1 (it has as early as within five days in recent years), so it is in Karen’s best interest to apply for an H-1B as early as possible to avoid missing the quota. If she waits for her OPT to end in December 2018, the H-1B cap for 2019 would have already been met back in April 2018 and she will have to wait until April 2019 to apply for an H-1B for fiscal year 2020.

Ryan

Ryan is an F-1 student in OPT. His OPT expires June 15, 2018, but he doesn’t want to apply for H-1B status since it’s only January 1, 2018.

However, by the time his OPT expires and he applies for H-1B status, the quota will already have been filled for the coming fiscal year 2019, and he will have to wait until April 2019 to petition for an H-1B for 2020. So even though he thinks time is on his side, Ryan should get to work on his H-1B.

Ali

Ali is an F-1 student in OPT that expires on June 15, 2018. It is only January 1, 2018, and Ali is contemplating applying for H-1B status. He knows that the quota is usually filled a few days after the filing period starts on April 1, so he decides to apply for H-1B status as early as possible.

Unlike Ryan, Ali is on solid ground because of his early preparation. In the end, his H-1B petition is approved, and he’ll now enjoy H-1B status instead of F-1 status.

Generally speaking, enjoying OPT status while working for a U.S. employer offers a considerable amount of flexibility. First, you can have multiple employers as long as each job is related to your area of study. In contrast, under H-1B status, a foreign national can work for only the H-1B sponsoring employer. Second, you may have more time to look for another job if you are terminated unexpectedly or suddenly while you still have several months left on your OPT. In contrast, an H-1B employee will lose status immediately upon termination of employment.

Q: I am currently in OPT (optional practical training) and received a part-time job offer from a prospective employer. Can I apply for a part-time H-1B visa?

A: Yes, provided you satisfy the other H-1B requirements.

Q: I am currently in OPT (optional practical training). What is the minimum number of hours that I am required to work in order to qualify for a part-time H-1B visa?

A: Generally, a part-time H-1B job requires a minimum of 20 hours per week. If the part-time job offer is for fewer than 20 hours per week, you may still qualify for a part-time H-1B visa in some instances. We recommend you consult an experienced immigration attorney.

Q: I am in F-1 status but am not using my practical training period. Can I obtain H-1B status?

A: Yes, if you satisfy the requirements for an H-1B. A practical training period is not a prerequisite to obtaining H-1B status.

Q: I am currently in F-2 status. Can I apply for an H-1B? Should I change into F-1 (student) status first and then apply for an H-1B?

A: As an F-2 status holder, you’re eligible to apply for an H-1B so long as you satisfy all the requirements for H-1B. There’s no need to change into F-1 status before.

H-1B AND STARTING A COMPANY

Q: Can an H-1B beneficiary own a company? Can a foreign national own a company and file an H-1B petition on her own behalf?

A: Yes, an alien can own a company in the U.S. There’s no requirement that a business owner be a U.S. citizen or legal permanent resident. However, whether an alien may work for her own company is another matter. After all, you need authorization from USCIS to work for any company, including your own.

Your own company may, in some limited situations, apply for H-1B status for you. USCIS will want to see evidence that the new company is able to pay you, as the H-1B worker, at least the prevailing wage, as well as the company’s business plans, business lease, and other documents proving that it is in fact a real company. The company must also demonstrate that there’s a real business need to hire an H-1B worker. Lastly, the employer must have the power to hire, pay, supervise, and fire employees, including you, the alien-owner.

Consider these hypothetical case studies.

Background

Rodney is an MBA graduate about to enter the field of real estate development. He wants to start his own real estate development company in New York City and submit an H-1B petition for himself for a position as project manager. He meets all standard requirements needed to form a corporation in the State of New York, but in his savings account, he only has $5,000.

Is Rodney eligible to form a company that petitions for him for an H-1B visa?

No. Since a real estate development project in New York City entails significant capital investment, and Rodney only has $5,000 at his disposal, his business would no doubt fail to prove its ability to pay the prevailing wage of an H-1B project manager. Rodney, therefore, cannot form a company to petition for an H-1B for himself.

Background

Moe is a geoscientist with vast experience in oil and gas exploration. He previously worked in H-1B status as a geology consultant for his employer, a consulting firm, which serviced several corporate clients and paid him $100 per hour. A few years later, Moe decided to establish his own consulting firm, and many of his old corporate clients retained his services. Moe would now like his company to petition on his behalf for an H-1B senior consultant position.

Is Moe eligible to have his own company petition for an H-1B visa on his behalf?

Yes. First, there is a real need for that kind of position at a consulting company like Moe’s. Second, the prevailing wage for such a position in the area is $100,000 per year. Considering Moe’s prior hourly rate as a contractor and the consulting contracts his company has with corporate clients, his company should have no problem proving its ability to pay this high prevailing wage.

Q: Can a person holding F-1 status start a company and have the company hire him or her as an H-1B employee?

A: Yes, an F-1 student can start and own a company in the United States. Theoretically speaking, the bona fide company may sponsor the F-1 student as an H-1B employee.

Of course, USCIS will require proof that the new company is able to pay the H-1B holder at least the prevailing wage, and also that there is a real business need to hire this specific H-1B employee. Usually, these two factors are extremely difficult hurdles to overcome for an average F-1 student.

Consider the following.

Background

Adam is a Ph.D. student in nuclear science currently in F-1 status. He heard from his friend Moe, a geoscientist, that he could start a company and have it sponsor him as an H-1B employee. He followed the steps to form a corporation and submitted an H-1B application to USCIS, showing that he is indeed starting a real company in the business of designing nuclear reactors.

Does Adam have a chance at using his company to petition for an H-1B on his behalf?

Probably not. Even if Adam proves that his new company has the ability to pay the necessary salary for whatever H-1B position he has in mind, it is extremely difficult to prove that there is a real business need. Small, newly established companies like Adam’s are simply unable to do business in an industry dominated by well-established, large companies, which is typical of the nuclear industry.

QUESTIONS ABOUT ZHANG & ASSOCIATES

Q: How much experience does your firm have in handling H-1B cases?

A: Zhang & Associates has extensive experience with H-1B cases. We’ve handled thousands of H-1B petitions since our firm was established more than 20 years ago. And in these two decades, we’ve maintained a 99% H-1B approval rate.

Q: I live in Ohio, but your office is headquartered in Houston. Would you still be able to handle my H-1B case?

A: Yes. Since immigration is a matter of federal law, we can represent clients located throughout, and even outside, the U.S. And while our firm is headquartered in Houston, we also have offices in New York City, Los Angeles, Silicon Valley, Chicago, Seattle, and Austin, TX. We handle H-1B cases for clients, irrespective of where they reside, by employing the latest technology designed to facilitate superior professional services. If you’re interested into how far and wide our clients come to us from, check out this map.

Our experienced immigration attorneys are here to guide professionals through the complicated H-1B application process, and minimize any and all confusion or challenges. We understand how important an H-1B visa is to you, whether as the employer or the prospective employee. Our seasoned staff and years-long track record of success make Zhang & Associates the natural choice to facilitate your H-1B petitions.

For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:

General H-1B Topics

H-1B Articles

H-1B Visa: Temporary Workers in "Specialty" Occupations H-1B Requirements H-1B Services We Provide Applying for an H-1B Visa H-1B Advantages H-1B Limitations H-1B Documentation List Extending H-1B Status Beyond Six Years H-1B1 Subcategory: Free Trade Agreement H-1B2 Subcategory: Department of Defense H-1B3 Subcategory: Fashion Models Guidance on H-1Bs for Nurses H-1B Premium Processing and Related Issues H-4 Visas: Spouses and Children of H-1B Workers Frequently Asked Questions about H-1B Visas Filing Fees Attorney's Fees

The Cap USCIS Guidance on H-1B Cap Exemptions After the Cap Off-site Employees "Recapturing" Unused Time H-1B-Dependent Employers "Benching" H-1B Workers The Portability Rule Maintaining H-1B Status during Corporate Changes H-1B vs. O-1 Issues Relating to F-1 and OPT Issues Relating to Work, Travel, and Adjusting Status Memo: H-1B Status during the I-485 Waiting Period Memo: Be Aware of Abandonment Frequently Asked Questions about I-140 and I-485 Filing

 

Updated 04/26/2017