Q: What are the requirements to get H-1B?

A: The H-1B is a nonimmigrant classification used by a foreign worker who is employed temporarily in a specialty occupation. The H-1B visa is issued to non-immigrant workers in specialty occupations. Essentially, these are all professional level workers - people working in jobs that require at least a bachelor's degree as a minimum entry requirement. This category allows such workers to be employed for up to six years.

Therefore, you must have the U.S. equivalent of a Bachelor's degree in a specialized subject, such as computer science, economics etc., and the job must require such specialization. There must be an U.S. employer who is willing to sponsor you, i.e. the employer offers you a job, and the job is a specialty occupation, which is the one that requires at least a bachelor degree in the relevant field.  

Q: What is a specialty occupation?

A: A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Q: How does the USCIS determine whether a job is a “specialty occupation” for H-1B purposes?

A: When determining whether a specific position is a “specialty occupation”, the USCIS will look into the job title, the job duties to be performed by the foreign worker, and the complexity of the business, etc. It is not enough that an employer requires bachelor’s degree for a specific position. Pertinent laws set some objective standards for determining whether a specific occupation requires a bachelor’s degree for entry into the occupation. USCIS will examine whether a job is qualify as a specialty occupation, according to the following criteria:

1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for the entry into the particular position;

2) Degree requirement is common to the industry in parallel positions among similar organization or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

3) The employer normally requires a degree or its equivalent for the position; or

4) The nature of specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Q: How do I know whether my job is a “specialty occupation”?

A: While some occupations are clearly “specialty occupations” as defined by laws and regulations, others are not so clear and the USCIS will make a decision on a case-by-case basis. For some professions such as computer programmer, general manager, librarian, consultant, designer, etc., determination of “specialty occupation” is a complicated process, and many factors should be considered.

Q: What is the H-1B quota and why there a quota?

A: The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Financial Year which begins on October 1. Applications for the upcoming Financial Year are accepted beginning on the preceding April 1 (or the first working day after that date). 

Those beneficiaries not subject to the annual quota are those who currently hold H-1B status or have held H-1B status at some point in the past six years and have not been outside the United States for more than 365 consecutive days. This annual quota has had a significant impact on the high tech industry. It has generally been set at 65,000 visas per year, with some exceptions for workers at exempt organizations like universities and non-profits. In 2000, Congress permanently exempted H-1B visas going to Universities and Government Research Laboratories from the quota.

Q: How many new H-1B visas are available for each fiscal year?

A: Currently, the new H-1B visas available for each fiscal year are 65,000. In addition, 20,000 foreign workers who obtained advanced degree (MS and up) in the U.S. are exempted from the 65,000 cap. If an alien applicant has obtained an advanced degree in the U.S., the alien applicant can use the additional 20,000 H-1B visas for advanced degree professionals.

Q: What cases are subject to the H-1B annual cap? 

A: Individuals who have never held H-1B status before are subject to the cap. They need to have their cases counted against the cap, unless the cases are being filed by a cap-exempt employer. Individuals who have previously held H-1B status generally would not be subject to the cap, even if they have held some interim status, such as F-1 or H-4. However, this would not be the case if their prior H-1B approvals were cap exempt.

Q: When can the H-1B cap petitions be filed? 

A: The lesson that should be clear from the past years is that it is best to file H-1B cap cases on April 1st. The USCIS permits H-1B cases to be filed by more than one potential employer on behalf of a single foreign national. However, it is not permissible to have a single employer file multiple H-1B petitions for the same beneficiary in an effort to increase one's chances in the lottery. 

H-1B petitions filed by cap-exempt employers may be filed at any time during the fiscal year, depending only on the needs of the employer and the availability of the potential employee.

Q: Which foreign nationals are affected by the H-1B visa cap?

A: Foreign nationals in other non-immigrant statuses such as B, F, J or H-4 who request a change of status to a first time H-1B are affected by the H-1B quota. Additionally, managers, recruiters, and human resource departments planning to bring a foreign national from overseas to work in the United States on an initial H-1B visa should also be concerned about the H-1B cap.

Q: Which foreign nationals are not affected by the H-1B visa cap?

A: Foreign nationals currently in H-1B status who need to file an extension or change of employer are not affected by the cap on H-1B numbers. Further, foreign nationals seeking employment through institutions of higher education, nonprofit research organizations, and government research organizations are not subject to the cap. Physicians previously in J-1 status who have agreed through a state health department to work in underserved areas (HPSAs or MUAs) in exchange for waiver of the J home residence requirement are also not subject to the numerical limitation.

Q: What kind of educational institutions can be H-1B cap exemption?

A: U.S. Citizenship and Immigration Services (USCIS) exempts individuals working at certain organizations from the annual H-1B cap. Specifically, the exemption applies to anyone employed at an institution of higher education; a related or affiliated nonprofit entity; a nonprofit research organization; or a governmental research organization. According to statutes enacted by U.S. Congress, an institution of higher education is defined as an education institution in any State that:

1) admits only those students that have graduated from high school or the equivalent;

2) authorized within such State to provide a program of education beyond high school;

3) able to award a bachelor’s degree or provides at least a 2-year program for full credit toward such a degree;

4) is a public or other nonprofit institution; and

5) is accredited by a nationally recognized accrediting agency or association, or has a pre-accreditation status, and can meet the accreditation standards within a reasonable time.

Q: I obtained a Masters Degree from a Canadian university, can I use the additional 20,000 H-1B visas for advanced degree professionals?

A: No. The additional 20,000 H-1B visas are only granted to foreign workers who obtained advanced degree in the U.S.

Q: I am currently in H-1B status, am I subject to the annual cap if I change employment and my new employer files an H-1B petition in my behalf?

A: No, current H-1B workers are not subject to the annual cap.

Q: Who can file H-1B petition for a foreign worker?

A: H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file a petition with the Bureau of Citizenship and Immigration Services (USCIS).

A H-1B petition must be filed by a U.S. employer. The U.S. branch or subsidiary of a foreign company is considered as a “U.S. employer” for H-1B purposes, if its U.S. entity meets the following requirements: 

1) it engages a person to work within the U.S.;

2) it has the authority to hire, pay, fire, and supervise employees; and 

3) it has an IRS Tax ID Number, also known as Employer ID Number (EIN).

Q: What is the definition of United States Employer, to hire H-1B workers?

A: The employer is the official petitioner of the H-1B, and must be a "United States Employer" or its agent. The definition of a U.S. employer is a "person, firm, corporation, contractor, or other association, or organization" in the U.S. The employer must also 

1) seeks the service of the person as specified in the petition process, 

2) has or will have an employer-employee relationship with the person, and 

3) has a U.S. Internal Revenue Service tax identification number. 

A foreign entity may file a petition to employ an H-1B worker in the U.S., if it has a U.S. "branch office" and has the requisite tax identification number.

Q: What kind of employers are the "H-1B Dependent Employers"?

A: The H-1B legislation requires certain employers, called H-1B dependent employers to advertise positions in the U.S. before petitioning to employ H-1B workers for those positions. For firms of 50 employees, an H-1B dependent employer is defined as having more than 15% of their employees in H-1B status. Smaller firms are allowed to have a higher percentage of H-1B employees before becoming 'dependent'.

Q: What is Labor Condition Application (LCA)?

A: H-1B petitioning employer is required to file a Labor Condition Application (LCA) with the Department of Labor (DOL) attesting to a number of items, including payment of prevailing wages for the position, and the working conditions offered. The LCA must be certified by DOL before the H-1B petition is filed with USCIS.

Q: How long can an alien be in H-1B status?

A: Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. However, there are a few exceptions to the six-year limit, which allow a foreign worker to extend their H-1B status beyond six years.

Q: How to extend H-1B status beyond the six-year maximum period?

A: A foreign worker can obtain an extension of H-1B status beyond the six-year maximum period if he or she meets one of the following conditions:

1) The 365 days or more have passed since the filing of a Labor Certification (Form ETA-9089), or an employment-based immigrant petition (Form I-140) if Labor Certification is not required; or

2) An employment-based immigrant petition (Form I-140) has been approved but due to the retrogression of priority date, the foreign worker is unable to obtain Green Card.

Q: How can I extend H-1B status for one (1) year at a time beyond the six-year maximum period?

A: You will be able to extend H-1B status in one-year increments beyond the six-year limit if your Labor Certification application (Form ETA-9089) or your employment-based immigrant petition (Form I-140) has been pending for 365 days or more. Therefore, to be eligible for the one-year extension at a time, a  Labor Certification application or I-140 petition must be filed before the H-1B reaches the 6th year.

Q: How can I extend H-1B status for three (3) years at a time beyond the six-year maximum period?

A: You will be eligible to extend H-1B status in three-year increments beyond the six-year limit if your I-140 petition has been approved, but you are unable to Form I-485 to obtain Green Card, due to the retrogression of priority date.

Q: Who can an H-1B alien work for?

A: H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. H-1B aliens may work for more than one U.S. employer, but must have an I-129 petition filed by each employer.

Q: What if the alien circumstances change?

A: As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change employers without affecting status, but the new employer must file a new I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer business will not affect the alien status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

Q: Must an H-1B alien be working at all times?

A: As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.  

Q: What is H-1B visa’s “dual intent”? Can an H-1B alien intend to immigrate permanently to the U.S.?

A: Unlike other non-immigrant visas such as F and J that do not allow immigrant intent, H-1B visa has dual intent, which among other things, allows filing of immigrant applications without affecting their non-immigrant status.

An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (PR) status without affecting H-1B status. This is known as "dual intent", and has been recognized in the immigration law since passage of the Immigration Act of 1990. 

Q: Can an H-1B employee work for more than one employer?

A: Yes, H-1B workers may work for more than one U.S. employer, but each employer involved must file an H-1B petition and the petition must be approved.

Q: Can I change H-1B employer?

A: Yes, you may change H-1B employers and at the same time keep you H-1B status, but the new H-1B employer must file a new H-1B petition for you properly before you begin working for the new employer.

Q: I am currently in H-1B status and will change employer. When can I work for the new employer?

A: According to the H-1B portability rule, you can start to work for the new employer after your new employer properly files the H-1B petition in your behalf. You do not need to wait till the new H-1B approval to change your employment. For more information about H-1B portability, please read our special section on H-1B Portability Issues Related to Change of Employer.

Q: I am in F-1 status and have filed immigrant petition, can I change status to H-1B?

A: Yes, you may change status to H-1B even after you filed immigrant petition. Although H-1B is a non-immigrant visa, it allows immigrant intent and an H-1B petition cannot be denied on the immigrant intent basis.

Q: Must I work at all times to keep my H-1B status? and  is a part-time worker eligible for H-1B?

A: As long as the employer/employee relationship exists in compliance with the H-1B requirements, you are in valid status. Just like other workers, you may be on vacation, sick or maternity leave, or otherwise inactive without affecting your status. A foreign H-1B worker can also work part-time, but the work hours must be specified in the H-1B petition.

Q: I am in H-1B status. Due to not enough workloads in the company, can I work part-time? 

A: Yes, you can. The part-time H-1B option offers flexibility that may assist the employer during times when workloads are reduced or variable. Individuals may find that it provides an option for maintaining status and opens a number of options for employment, other than the full-time, single-employer model. 

While most H-1B workers hold full-time positions, the H-1B forms and procedures allow for the possibility of part-time employment. This provides a number of options and variations, including the possibility of holding both a full-time and part-time job, working multiple part-time jobs, or simply working part time. 

Q: What is the taxation status of H-1B workers?

A: H-1B workers are legally required to pay the same taxes as any other U.S. resident, including Social Security and Medicare. Almost any person who spends more than 183 days in the U.S. in a calendar year is a tax resident and is required to pay U.S. taxes on their worldwide income.

The exceptions to this rule are very few in number; they include the case of students on F-1 and people who would like to leave the U.S. but are prevented from doing so by a medical problem. From the IRS perspective, it doesn't matter if that income is paid in the U.S. or elsewhere. If an H-1B worker is given a living allowance, it is treated the same by the IRS as any other U.S. resident.

Q: What is the H-1B employment requirement for for the petitioning U.S. employer?

A: According to the USCIS, H-1B aliens may only work for the petitioning U.S. employer, and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules of DOL are followed. 

H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer. Enforcement of these rules depends upon the employee, however. The Department of Labor has neither the authority nor the manpower to investigate violations of these rules unless and until a complaint is made.

Q: In addition to H-1B visas, What re the other worker's visa available?

A: In addition to H-1B visas, there are a variety of other visa categories which allow foreign workers to come into the US to work for some period of time. L-1 visas are issued to foreign employees of a corporation. Under recent rules, the foreign worker must have worked for the corporation for at least one year in the preceding three years prior to getting the visa. 

An L-1B visa is appropriate for nonimmigrant workers who are being temporarily transferred to the United States based on their specialized knowledge of the company's techniques and methodologies. An L-1A visa is for managers or executives who will either manage people or an essential function of the company. There is no requirement to pay prevailing wages for the L-1 visa holders. 

Q: What is the registration requirement for online H-1B Labor Condition Application

A: Beginning from 10/1/2008, employers and their representatives will not be able to file and obtain certification of the Labor Condition Applications for H-1B, H-1B1, and E-3 Nonimmigrants, ETA 9035E unless the employer and the representative first file and complete registration online. Registration may not take too much time, but some employers and representatives may need extra time. 

Q: What is the USCIS Premium Processing Service? 

A: By filing Form I-907 and paying a fee of $1,000, an employer may request to have certain petitions, including H-1B petitions, reviewed within 15 calendar days of filing. This fee is in addition to the normal H-1B filing fees that must be paid. 

Premium processing can greatly assist in obtaining a prompt decision in a H-1B petition. However, it does not increase one's chance of acceptance in any lottery of cap-subject filings. It also does not permit a start date of employment or cap-subject cases of any earlier than October 1 of that year.

Q: How could the H-1B aliens who return to the U.S. using Advance Parole will be able to resume the employment authorization which is inherent in the H-1B status?

A: The current rule is that the H-1B aliens who return to the U.S. using Advance Parole will be able to resume the employment authorization which is inherent in the H-1B status, if as the following conditions are met: 

1) The employment is resumed with the same H-1B employer, 

2) The H-1B approval must remain valid, even though one does not need a valid H-1B visa stamp.

Q: How does the USCIS know whether the job requires a bachelor degree? and how long can a person in H-1B status?

A: It is usually based on industry standard and some publications, such as The Dictionary of Occupational Job Titles. The H-1B workers must be paid the prevailing wage. The H-1B can be initially for three years and can be renewed for another three years. After six years, it can be renewed one year or three years a time under certain conditions.

Q: How many H-1Bs can I apply at the same time? Can two employers file H-1B petitions for the same beneficiary at the same time?

A: Yes, the person must maintain at least one H-1B status and most people only maintain one H-1B at a time. But the law does not preclude you to maintain two H-1Bs at the same time. One can be a full-time job and the other can be a part-time job.

Q: Currently, I am in practical training status. When is the best time to apply for H-1B?

A: After you go to work for a while and you get familiar with the environment, you will have an idea as to whether you want to stay or not. It is always better to apply as early as possible. There are two reasons for this. First, once you get your H-1B, it is much easier for you to change job. Second, due to the change of the law, you do not have to worry about the six-year limit for H-1B.

Q: What materials and documents do I need to file the H-1B by myself? and how long does the process take to get the H-1B approved?

A: Your employer needs to provide some basic information regarding the company and the position offered to you, and your have to prepare basic information and documents about yourself, such as diploma, resume, passport and I-94, etc. You need to fill  the required forms and your employer has to review and sign the papers. It usually takes two to three months to obtain an H-1B status approved by USCIS, provided the H-1B quota has not been filled.

Q: What standard is used by USCIS in adjudicating the H-1B, and what is the percentage of being approved?

A: USCIS will see whether the position is a specialty occupation, i.e. whether it requires a bachelor degree, and whether the beneficiary has the required degree, or its equivalent, and whether employer has the work for the beneficiary to do, and whether it has the financial ability to pay the beneficiary. 

In practice, it mainly depends on the employer's situation. The larger the employer and the higher the salary, the more likely the application gets approved. The rejection rate is low. Even very small and new employers can successfully file H-1B petitions.

Q: What are the employer exemptions from the "additional fee"?

A: The employer exemptions from the H-1B application "additional fee" includes several situations:  

• Nonprofit entity engaged in “established curriculum-related clinical training of students”;
• Primary or secondary education institutions;
• Any employer who is filling for a second extension of stay for an H-1B nonimmigrant;
• Non-profit or governmental research organizations;
• Institutions of higher educations and related or affiliated non-profit organizations.

Q: My husband is a PhD student, and I am in United States with F-2 visa. Currently, a local company wants to hire me as a technician, can I apply for H-1B and work for the company?

A: Yes. you can change your non-immigrant F2 visa to H-1B visa, and work for the company. Your current F-2 visa status can be changed.

Q: To save money, can I applying for H-1B visa by myself ? and can I work before the H-1B approval is granted?

A: Get an H-1B should be straightforward, but you need to know the various rules and procedures. A lot of people do succeed in obtaining H-1B visa by themselves. Until the USCIS approves the petition and the non-immigrant status has been changed, any work by a non-immigrant will be considered unauthorized.

Q: Can I apply for both H-1B and Green Card at the same time?

A: Yes, you can do either or both.

Q: I am applying for H-1B visa, will USCIS deny my application if I apply under the category of MS when I actually hold a Ph.D.?

A: Your application is fine if you employer indicates on the application that the offered position requires an MS. The fact that you possess a higher academic degree than what is required to fulfill the position has no impact on your application.

Q: My application for PR (I-140) is pending while my practical training period is almost over. Do I still need either work authorization or H-1B visa in light of my PR application?

A: Yes. Your application for PR (Green Card ) is irrelevant to your current non-immigrant visa status, and you need to maintain your legal status at all times.

Q: I have filed an application for change of status (I-485). My H-1B visa will expire next month. Do I need to file for an extension of H-1B?

A: You should file for an extension of H-1B immediately. USCIS should expedite your request under these circumstances.

Q: How much does it cost to hire a lawyer for an H-1B visa?

A: Anywhere between $1500-$3500.

Q: Having H-1B visa with one company, can I work for another company for a part time job?

A: Yes you can, but you have to get another H-1B visa for the second employer. Basically, you can hold more than one H-1B visa at the same time.

Q: During the process of my H-1B visa, if I get a better job offer, can I take that job?

A: Yes, You can take that job, but you need to apply for a new H-1B.

Q: I am coming up on the second three-year extension on my current H-1B visa. If I change employer three months into the extension, will I be able to use the remaining two years and nine months with another employer on a new H-1B ?

A: Yes you will, but you have to get a new H-1B visa.

Q: My H-1B is up for renewal after three years . Do I need a Labor Condition Application from Department of Labor to renew it?

A: Yes, you do need a Labor Condition Application (LCA) from Department Of Labor (DOL) to renew it.

Q: Is the Labor Condition Application specific to a state?

A: The forms ETA 9035 for LCA are federal. Therefore, they are the same all over U.S. The certified LCA itself, however, is valid only in the region where it is certified and for the job location it is certified.

Q: Can I work for other employer?

A: You need USCIS permission. It is possible to have USCIS permission for employment with more than one employer at a time, but it requires separate H-1B petition. In the absence of explicit permission, however, an H-1B employee may not work for any employer other than the one for which the petition was granted.

Q: I have an H-1B visa and I want to change my job. Is it possible for my new employer to file H-1B for me without my original H-1B document, which is with my present employer?

A: Yes, you do not need the original H-1B documents from your present employer to get a new H-1B. If it is needed, a copy of the old H-1B approval is sufficient to file for a change of employer, even though you have to go through the whole process of getting the H-1B approval.

Q: Is the new I-94 included in the H-1B approval notice?

A: H-1B approval notice will arrive on a white form with a watermark of the statue of liberty, and with the bottom portion being an I-94 to be cut.

Q: If my company is bought by another company, is my H-1B visa still valid?

A: According to USCIS, if the successor company undertakes all rights, liabilities, assets and privileges of the previous employer, the H-1 visas are valid even after the takeover.

Q: If I get promoted, do I need to get a new H-1B visa?

A: Technically, you do need a new H-1B. But if the job is sufficiently close in description and responsibilities, your employer can just send a letter to USCIS.

Q: Can I reenter U.S. if my multiple entry H-1B application is denied in Mexico or Canada?

A: Normally you can. But you should make sure that you don't turn in your I-94 at the border while leaving U.S. Then you have to fill in a new I-94 when you enter US by showing your visa and old I-94. After 9/11, it has become even more uncertain whether you will be allowed back. Please note, your reentry is not guaranteed.

Q: May I leave U.S. for a short time, after my H-1B petition has started?

A: While many applications are considered abandoned if you leave the country during the application, that is not true for H-1B. The reason is that H-1B is not your petition. It is your employer's petition. You can leave U.S. and upon obtaining approval of H-1B.

Q: What is the difference between Labor Certification and Labor Condition Application?

A: Labor Condition Application (LCA) is for H-1B petition, and the Labor Certification (LC) is for Green Card petition. The LCA is a very abbreviated procedure. It is merely a one-page form that is routinely certified by the Department of Labor. The Labor Certification is a much more complicated procedure, and it requires a lot more time and effort.

Q: Is Job Advertisement required for Labor Condition Application?

A: No job advertisement is required for Labor Condition Application. Only internal notices need to be posted by the employer. Additionally, within 24 hours of filing an LCA, the employer is required to maintain certain documentation within his own premises.

Q: Is it true that only advanced degree (MS, Ph.D.) can have good chance to get approval of the Labor Condition Application or Labor Certification?

A: Generally, a Bachelor's degree in a defined subject area is sufficient for H-1B, and a Ph.D. has no additional significance.

For a Labor Certification., chances of success depend upon how many people can qualify for the job. If an advertisement is placed for a bachelor degree, chances are a lot more people will apply than would for a job that requires a Ph.D. degree. It is not advisable to tailor a job to suit your own needs. If the employer asks for restrictive requirements for the job, the Department of Labor will object to it. Also, the higher the qualifications, the bigger the salary must be.

It is not true that only advanced degrees have a good chance of success. There are a lot of variables that need to be considered.

Q: I am currently on H-1B for the past four years. Now I plan to go to school full-time, can I get another H-1B after I come out of school?

A: You will get an H-1B for only two years after you graduate from school, because you can get H-1B for total six years.

Q: I obtained my bachelor degree in my country, and a master degree in the US. Do I still need to show that my bachelor is equivalent to a US bachelor?

A: No. You have a master degree in US.

Q: When should I file for my H-1B visa extension?

A: You should file your request no earlier than four-six months before the expiration. Generally, filing the request three months before the expiration will be good.

Q: Is filing for an H-1B visa extension the same as filing a new H-1B? and can I use the previous LCA to fill for my H-1B extension?

A: The filing process is same as filing a new H-1B. You should get a new LCA approval..

Q: I am on an H-1B status and wish to start a company. Is it possible?

A: Yes, it is possible. You can open a company and then apply for either a full-time or a simultaneous H-1B for your own company. There are a few conditions applicable:

• First, you must be working in your own area of expertise.
• Second, your company must pay your wages even if the company is not making any money. Also, you cannot use your own company to get a Green Card.

Q: Can my employer pay me the salary less than the salary documented on my H-1B application?

A: It is illegal to do so, unless the H-1B papers mention that the employee can be paid on a part-time basis. The employers are not permitted to do it like this way.

Q: Can I have simultaneous H-1B? If so, is the six-year period calculated for the multiple visas?

A: It is permissible to hold many H-1B's separately as long as the total period does not exceed six years. For instance, if you held one part time and one full time H-1B for a year, you have only spent one year on H-1B. This is so even though you held two H-1B jobs simultaneously during this time. The jobs may be both part time, or one full time and one part time. The number of hours worked is irrelevant for this determination.

Q: If I apply for a change of employer or an extension of stay, am I subject to the yearly H-1B cap?

A: No. Once you have been granted H-1B status, you are no longer subject to the cap, even if you change employers or extend your status.

Q: Can an H-1B status worker immigrate permanently to the U.S.?

A: An H-1B foreign worker may be the beneficiary of an immigrant petition, apply for adjustment of status, or take other steps toward lawful permanent residence in the U.S. This is known as “dual intent”, as it has been recognized in immigration law since passage of the Immigration Act of 1990.

Q: I have an undergraduate degree from a foreign country. May I still obtain H-1B status?

A: It depends. All foreign degrees need to be evaluated to determine whether the foreign degree is equivalent to an undergraduate degree offered by an accredited university in the U.S.

Q: I have been offered a part time job. Do I still qualify for H-1B status?

A: Yes. As long as your work hours are at least 50% of the normal full time hours in your industry and you satisfy all other requirements for an H-1B, you are eligible to receive a part time H-1B visa.

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 based on 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 applicable fees, similar to the initial H-1B petition filed by your current employer. It generally takes between two to 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 under the new H-1B laws.

Q: When may I legally begin to work for a new employer?

A: As soon as your new H-1B petition is filed with the USCIS, provided you have an H-1B petition with another employer at the time of filing (i.e., you are in H-1B status when you filed your new H-1B petition).

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

An H-1B transfer receipt received from the USCIS is confirmation that your H-1B transfer was successfully filed with the USCIS. A certified return receipt of an H-1B transfer issued by any post office branch is also sufficient evidence that your H-1B transfer has been filed.

Q: I am in H-1B status now and would like to change jobs. Am I subject to the H-1B quota cap?

A: No. If you are in H-1B status, you are not subject to the H-1B quota cap.

Q: I was in H-1B status but am now in F-1 (student) status and would like to apply for an H-1B visa. Am I subject to the H-1B quota cap?

A: Yes. You are subject to the H-1B quota cap since you are currently in F-1 status even though you were previously in H-1B status.

Q: I am in H-1B status now. Can I be laid off or fired by my employer?

A: Yes, if as in most cases, your employment offer is at will. (An exception to this applies if you signed a union contract.) If you are laid off or fired, your employer's only liability is to provide you with a return one-way ticket to your home country if you chose to go.

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 need to convert to another non-immigrant status, such as an F-1, F-2, or H-4 status as soon as possible.  As long as you file your change of status application within the short period, you will be allowed to remain in the U.S. while your case is pending.

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

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

Q: Is there a relationship between obtaining an H-1B and obtaining a Green Card?

A: No, each is independent of the other. An H-1B is a non-immigrant status visa while obtaining a Green Card describes the process of becoming a permanent resident. You may apply for a Green Card with or without an H-1B.

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

A: Yes, if you satisfy the requirements for an H-1B visa.

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

A: Yes. A practical training period is not a prerequisite to obtaining H-1B status. However, practical training is preferred over an H-1B petition because of its status duration. An H status holder is limited to a maximum stay of six years at a time, whereas an F-1 status holder is allowed to remain in the U.S. for as long as he is enrolled as a full-time student in an educational program and making normal progress toward completing his courses of study.

Q: What factors are relevant in determining the prevailing wage?

A: Relevant factors in determining prevailing wage include:

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

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

A: Yes, you may obtain an H-1B, provided that you are not subject to the two-year requirement.

Q: Is the size of my company a factor in my H-1B petition?

A: No, the size of the company sponsoring your H-1B is not a factor. Rather, it is whether your employer has a real business need for the position you fill and whether it is financially able to pay your salary. An employer is eligible to sponsor you for an H-1B, so long as the employer has offered you a job and has the financial resources to pay you the job's prevailing wage.

Q: How do you define 'financial resources'? Is the company required to meet certain profit levels in order to be eligible to sponsor an H-1B petition?

A: No, the company does not need to be profitable in order to sponsor H-1B petitions, if they have the cash to pay their employees.

Q: May I submit an employment based immigration petition before I obtain an H-1B?

A: Yes. An employment-based immigration petition does not require an H-1B petition. The filing of an employment based immigration petition does not preclude one from filing for an H-1B petition.

Q: May I obtain an H-1B if I have filed an immigration petition? Does an immigration petition affect my H-1B application?

A: An H-1B holder may have dual intent: both non-immigrant and immigrant intent. Therefore, the filing of an immigration petition, either an I-130 or an I-140, does not affect the status of an H-1B application.

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 an H-4 status at the same time, if they are in the U.S. and you would like to claim them as your dependents for non-immigrant status.

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

A: Yes, provided you obtain and complete Form I-20 from an USCIS approved school.

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

A: Yes, if you have not exceeded the six-year cap for H status.

Q: Are there any exceptions to the six-year H status rule?

A: Yes. Under the H-1B law, if a Labor Certification Application or an immigration petition has been filed on your behalf and has been pending for at least 365 days, you may apply to extend your H status for one year (at a time) even if you have already stayed in the U.S. for six cumulative years.

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

A: H-1B status is a non-immigrant status issued by the USCIS. An H-1B visa is a non-immigrant visa issued by an U.S. Embassy or Consulate abroad. Legal status allows you to stay legally within the U.S. while a visa allows you to enter the U.S. legally. Once you enter the U.S. using an H-1B visa, you become an H-1B status holder.

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

A: You might want to consider extending your H-1B because if your adjustment is denied and you did not extend your H-1B, you are out of status.

Q: I am currently in H-1B status. May I attend school part time? Do I need to obtain an F-1 (student) status?

A: An H-1B holder is allowed to go to school part time without an F-1 as long he/she currently holds a valid H-1B status.

Q: I currently have H-1B status from my current full-time employer, and have received an offer from another employer to work on a part time basis. May I accept the part time job offer? Is there anything I need to do?

A: You should ask the prospective employer to apply for a part time H-1B visa on your behalf. You may keep two or more concurrent H-1Bs, either holding one full time and one part time H-1B or holding two part time H-1B visas. It is not possible to hold two full time H-1Bs from two employers.

Q: I currently in OPT (optional practical training). What is the minimum hourly requirement that qualifies me for a part time H-1B visa?

A: Generally, a successful part time H-1B can be based on a job requiring a minimum 20-hours/per week. If your part time offer is for less than 20 hours/per week, you may still qualify for a part time H-1B visa.

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

A: Yes, provided you have valid status. Your pending change of status qualifies as valid status.

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

A: The total amount of time or length of status under an H-1B is the cumulative time that you have worked for all your employers under an H-1B visa.

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

A: Yes, you may apply for an H-1B. You do not need to change into an F-1 status.

Q: Which H-1B applications are not subject to the H-1B quota limitation?

A: The following H-1B applications do not fall within the cap:

• Applications for of H-1B status extensions;
• H-1B petitions for concurrent employment where the alien worker is presently in H-1B status;
• H-1B petitions to change employers;
• H-1B applications sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government, or nonprofit research organizations; and
• H-1B applications for physicians who received J waivers under the Conrad State 20 Program.

Q: Can an H-1B holder extend his H-1B status beyond the six-year H-1b status limit?

A: n most cases, an H-1B holder may not extend his status beyond the six-year period, unless he/she qualifies under one of the following three (3) exemptions:

• An H-1B holder that is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition and is waiting for the new quota to apply for an adjustment of status, may apply to the USCIS for extensions of H-1B status beyond the six-year period until his adjustment of status application has been adjudicated. However, USCIS has the discretion to approve or deny such applications and as such is not guaranteed.  

• A beneficiary of EB-1 and NIW, if the immigration is filed over 365 days, either pending or approved, may file the extension of his H-1B beyond the six-year limit.  

• A beneficiary of BE-3 and EB-2 (other than a national interest waiver), if the labor certification was approved and filed more than 365 days, and the immigration petition is filed (either pending or approved), may apply to extend his H-1B status beyond the six-year limit.

Q: I am in H-1B status and my immigration petition (I-140) has been approved. I just filed an I-485 (adjustment of status) 30 days ago. If I change employers now, will the change affect my adjustment of status?

A: Yes. The change will affect your adjustment of status if you filed an I-485 less than 180 days ago. 

If you have filed an I-485 more than 180 days ago and you will work in an identical or similar position for the new prospective employer, you may change employers and the change will not affect your adjustment of status.

Q: What is the Premium Processing fee?

A: The fee for this service is $1000. The Premium Processing fee may not be waived. In addition to the Premium Processing fee, all filing fees related to the Form I-129 (Petition for Non-immigrant worker) must also be submitted. The Premium Processing fee must be submitted in a separate check or money order.

Q: How do I contact the Service Center concerning the Premium Processing request that I filed?

A: Each Service Center has a different mailing address as indicated in the instructions for Form I-907 (Request for Premium Processing). Additional contact information for each Service Center will be provided to you on your receipt notice.

 

 

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