What is the H-1B visa program?

The H-1B visa program is used by U.S. businesses to employ foreign workers in occupations that require theoretical and practical application of highly specialized knowledge and a bachelor's degree or higher (or its equivalent), such as scientists, engineers, or computer programmers.

Starting the H-1B

Do I need an employer to apply for an H-1B? And who can be the employer?

Yes, you need an employer to apply an H-1B on your behalf. This employer must be an U.S employer that is a person, firm, corporation, contractor or other association or organization in the US with an IRS tax ID number.

Can I retain my own lawyer instead of the company's lawyer?

Yes.

LCA Issue

How much should my employer pay me?

Your employer should pay you at a greater wage of prevailing wage for the occupation in the area of intended employment.

What is the prevailing wage?

The wage rate of H-1B nonimmigrant workers and other workers in similar jobs will be paid the actual wage for the occupation at the place of employment, or the prevailing wage level for the occupation in that geographic area, whichever one is higher.

What if my employer does not offer me a wage above the prevailing wage?

You can contact our office for solutions.

What happens if the employer reduces my work hours?

The employer has to apply for another part time H-1B status for you.

Can I take a vacation?

Yes if you were given the vacation benefit by your petitioning employer

Can I be transferred to another location?

Changing locations for the same employer requires an amended petition. However, if a new LCA is not needed, an amended petition is not required

Can I do a different job at another location?

Probably Not.

Initial H-1B filing

What is CAP?

By law, the congressionally mandated a quota cap of 65,000 for new H-1B visas per fiscal year, subject to certain limited exceptions. The advanced degree exemption is 20,000 H-1B visas.

Who will be subject to CAP?

Most companies and other organizations are subject limitation. Unless your employer falls under CAP exempt categories, it is subject to CAP.

What are the CAP exempt organizations?

CAP exempt organizations include, but not limit to, institutions of higher education, some institution or organization affiliating to them, and some non-profit research organizations, or some governmental research organization, etc. Note that if a petition incorrectly indicates that it is exempt from any of the H-1B numerical limits, the petition will be denied if no H-1B visa numbers are available and the filing fees will not be returned.

How long did it take for the prior FY 2009 congressional mandated H-1B caps to be reached?

In April 2008, USCIS implements the random selection process for petitions, USCIS included petitions in the random selection process that are filed during the first five business days available for filing H-1B petitions for a given fiscal year, rather than just the first two such days.

When can employers file an H-1B petition for fiscal year 2010?

April 1, 2009 is the first day petitions may be received for an October 1, 2009 start date.

What happens when the cap is reached?

When it is determined that the numerical limitations have been reached, USCIS employs a random selection process to choose among the petitions received on the "final receipt date." If the "final receipt date" falls within any one of the first five business days, the random selection will be run using all the cap-subject petitions received during those five days.

If the limits are reached during that period:

• 20,000 Reached - USCIS randomly selects from these petitions ahead of selection for the 65,000 limit.
• Over 20,000 Not Selected - Considered with other H-1B petitions in the random selection for the 65,000 limit.
• Under 20,000 - Ongoing approvals counted toward the 20,000 cap until the limit is reached.

If USCIS finds out that my employer is filing multiple petitions for me, what will USCIS do?

USCIS will deny or revoke all petitions filed by an employer for the same H-1B worker if more than one is filing is discovered, according to the interim final rule published on March 24 in the Federal Register. If duplicate or multiple petitions are discovered, whether one or more such petitions are approved, USCIS will data enter all those duplicative petitions, retain all fees, and either deny the petitions or, if a petition was approved, revoke the petition. The petitions will not be returned to the petitioner

Do the new rules referencing multiple filings on behalf of one worker apply to a parent company and its affiliated entities?

The rule does not prevent related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on legitimate business need.

How long does it take to get an H-1B?

It depends on several factors, such as whether the quota is available and what employer is petitioning for you. It usually takes somewhere between two and three months. However, if you request for Premium Processing, you will have a result within 15 days since USCIS received the case.

How much is it for the Premium Processing?

$1000.

Can I add a Premium Processing when my H-1B case is pending?

Yes.

Who should pay for the Premium Processing fee?

Either the employer or the employee could pay it.

How much is the H-1B application fee?

It depends. It may include a $ 320 of H-1B filing fee, $ 750 or $1500 of the ACWIA fee and a $ 500 of the Anti-fraud fee.

Who should be pay for the application fees?

USCIS will only accept company checks or legal representative's checks. Personal checks will not be accepted. Moreover, each application fee should be paid by separate checks.

During the H-1B status

Can I visit my home country while in H-1b status?

Yes! But make sure to have all paperwork done properly and stay there only for a shorter period.

What documents do I have to obtain for my return to the United States?

Before you travel, make sure your visa in your passport is valid. If your visa has already expired, you need to go to a US consulate and apply for a new one. You also need to bring your original H-1B approval notice, the I-129 application forms. You may also need to have your current employer to write a letter stating that your job with the employer is still valid

How long can I stay overseas on an H-1B visa?

Generally, do not stay overseas if you want to get back to the U.S. unless you have emergency or job necessity and you have all paperwork done properly. There is no definite time period for staying overseas. The longer you stay overseas, the more troublesome your future immigrant applications will be.

How will my leave of absence be counted to my six years of stay if I stay overseas for one month?

Generally speaking, no.

When can I renew my visa so that I can travel?

You can renewal your visa at consulate abroad. The Department of State in Washington D.C. no longer accepts application for domestic visa revalidation since July 17, 2004.

What happens if I get a promotion?

It has no adverse effect on your H-1B status! However, you may need to consult the attorney whether an H-1B amendment is needed.

What constitute a material change on employment that needs an H-1B amendment application?

The material change may include, but not limit to: major job duties, other significant conditions that requires a change of Labor Condition Application.

Can I be transferred from the parent company to a subsidiary?

Yes.

Can I do stock trading while on an H-1B status?

This is a VERY frequently asked question. There is no reason that you can not do stock trading in your leisure time as long as you are still working for your petitioning employer under the same terms and conditions of the H-1B petition. Disclaimer: this is not an INS' official opinion on this issue.

What happens if the employer is going to be sold to another company?

Find out if the buying employer is going to keep you and is willing to file petition on your behalf. Otherwise seek other options.

What happens if the employer out of business?

You will be out of status if you do not take other options

What happens if the employer's reconstructing?

You might need to file an H-1B amendment. However, if the new entity assumes all of the obligations and rights of the predecessor companies, and the terms and conditions of the H-1B employment remain the same, the amendment is not needed. Consult an experienced immigration attorney for updated information if you are in such situation.

Can my employer fire me? What happens if I am going to be fired or laid off?

Your employer can get ride of you for any reason if they want. Basically, there is no job security under the H-1b category unless you are a part of a union contract. In order to maintain the legal status, an H-1b holder has to learn how to work hard, work well for the employer. What the employer lost is his/her money (H-1b filing fee, wages paid and air ticket for your return), what you lost is your legal status. I am sorry to say so but this is the reality. This is one of the disadvantages the H-1B status holders have. (However, this is not the end of your world! Talk to your immigration attorney if you feel like the bad luck is approaching).

How long can I stay in the U.S. legally if my employer fires me or if I am laid off?

There is written documents regarding this issue. However, the director of the Service's Business and Trade Services Branch took the position that there is no grace period when the H-1B employment is terminated. If you know you are going to be out of job or you have actually be laid off, try your best to change to another nonimmigrant status, for example, to H-4, F-1, B-2, etc. DO not sit there doing nothing about your status.

Can I change job?

Generally, you can change your job. But you may have to have your employer file another H-1B petition in your behalf before you change your job.

Can I transfer my H-1B status to another employer?

It is not clear what you mean "transfer" your "H-1b visa". If you are asking whether you can use your current H-1B status to work for another employer, the answer is No. If you are asking if you can find another employer to work for, the answer is yes. Your H-1B visa is "owned" by the petitioning employer. If you want to work for another employer, the new employer has to obtain another H-1B status on your behalf before you start to work.

Can I go back to my previous employer after I start to work for my new employer and I find the new employer is worse than the first one?

If your H-1B with the first employer is still valid, legally speaking, you can go back to work for the first employer. I say "legally speaking" because your H-1B is still valid unless the former employer files a cancellation petition or INS revoked the H-1B. Practically, it depends on whether your former employer wants you back. If yes, you are ok, otherwise you have to seek other solutions. This is not applicable if you are working for more than one employer under more than one H-1bs.

During the period your H-1B extension petition is pending, can I continue to work for the current employer?

Yes. As long as you receive the H-1B filing Receipt Notice from USCIS.

When can I start to work for the new employer?

If you are already an H-1B holder, you can start to work for a new employer upon the filing of your new H-1B; if you do not have an H-1b, you cannot start your work until your employer receives a new H-1B approval notice.

My current H-1B status is going to expire, but I have not yet received the new approval. Can I stay legally in the United States while waiting for the USCIS' notice?

You can legally stay in the United States during the period your H-1B petition is pending.

Can I change field?

No if you want to keep your current H-1B status.
Yes if you are qualified for another status or have another H-1B petition filed by another employer and approved by the USCIS

Can I change from H-1B status to L-1 status?

It is possible but it is very difficult to do it.

Can I change from H-1B status to F-1 status?

Yes if you are admitted by a college.

Can I change from H-1B status to H-4 status?

Yes if your spouse is an H-1b holder.

Can I be transferred from the parent company to a subsidiary?

Yes.

Can I have more than one H-1B status at the same time?

You can have more than one H-1B status petitioned by different employers. But you cannot start to work for the new employer until we file a new H-1b petition if you are already in an H-1B status.

How long do I have on H-1B status?

6 years. You may be able to have an H-1B extension beyond 6 year. However, your immigration application must have been pending for more than 365 days.

When can I start the green card application?

Most likely you will need your employer's sponsorship.  You need to discuss it with your employer.  After you have obtained your employer's support, you then send your updated resume to This e-mail address is being protected from spambots. You need JavaScript enabled to view it for free evaluation of your green card options.

After H-1B Status

I have completed my six year H-1B time and now I am returning to my country.  When can I come back to work in H-1B again?

You can get another six year H-1B after you have stayed outside the US for one year.

I just got laid off.  What do I need to do?

You should contact an experienced immigration attorney immediately or contact us immediately to find out other options or strategies.  Basically if you intend to stay in the US, you need to file change of status application immediately to avoid status gap.

Above are sample FAQs.  Please Contact Xielaw if you have more questions.  Please be advised that the answer to above questions may not be applicable to your specific case.  If you have specific questions and you are not a Xielaw client, you need to check our fee based consultation services.