1. What is H-1B work visa?
The H-1B specialty workers visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. and perform services in a prearranged professional job. The job must be in a ‘specialty occupation’ and must require a bachelor’s degree as a minimum for entry into the field.
Note: The H-1B work visa allows an organization with an IRS Tax Number/ Federal Employer Identification Number to employ a foreign national for up to six years.
2. What is ‘specialty occupation’ for the purposes of H-1B visa?
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.
Note: Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
3. How do I qualify for H-1B visa?
To qualify for H-1B visa, you must:
• Demonstrate that you have the ability to work in the specialty occupation that requires the theoretical and practical application of highly specialized knowledge
• Be coming to the U.S. to earn money or a livelihood working in a professional capacity, and not for pursuing a hobby, for pass time, giving free advice or humanitarian service
• Seek temporary entry into the U.S.
• Have a bachelor’s degree or the equivalent in work experience. You should have bachelor’s degree plus three years of work experience for each year of missing university education. This would be considered four-year bachelor’s degree
Note: This classification also applies to Government-to-Government research and development, or co-production projects administered by the Department of Defense
4. What are the benefits of H-1B visas?
The benefits of H-1B visa are:
• Multiple H-1B visas: In most cases, there are no limits to the number of H-1B visas an individual may have in their lifetime
• Green Card: The H-1B professionals may simultaneously seek Lawful Permanent Residency or a Green Card for themselves and for their family
• Cost of early dismissal: The employer must agree to pay the foreign national the reasonable cost of transportation to go back to his/her home country if the employer terminates employment prior to the end of the authorized employment period. The foreign national will then go back to his/her home country. Normally, this is not a problem since the foreign national usually desires to stay in the U.S. and changes into another nonimmigrant status
• If you change jobs you must reapply for a new visa, under the new position. This does not mean that you have another six years. The H category visa allows you to stay in the country for six years, regardless of whether you changed employers during this period. Those who arrived in the country on H-4 visas, and converted to H-1B status, have to remember that this six-year period starts counting from the day they arrived in the country on their H-4 visa
5. What are the limitations of H-1B visas?
The limitations of H-1B visa are:
• Temporary Duration: Because of the H-1B visa’s temporary nature, individuals who seek H-1B visa must have the intent to remain in the U.S. only temporarily. However, individuals who seek H-1B visas need not maintain a foreign residence and may later petition for Lawful Permanent Residence. If a petition for Lawful Permanent Residence is not made or the petition for Lawful Permanent Residence is denied, the H-1B worker will be required to return to his/her home country at the end of the authorized employment period
• The H-1B Cap: An annual numerical limit is imposed on the number of H-1B visas issued during a fiscal year. For the fiscal year 2003, the cap is 65,000. However, the quota only applies to new H-1B applications, and does not apply to H-1B status holders who are seeking extensions or change of employer
6. What is the validity period of H-1B visa?
Generally H-1B visa is granted for three years. It may then be extended, in the first instance for two more years, and eventually for another one year.
For further extension, the H-1B professional must remain outside the U.S. for at least one year before becoming eligible for another H-1B visa. If the professional acquires permanent residency (Green Card) he/she need not remain outside the country for one year. Certain foreign nationals working on Defense Department projects may remain in H-1B status for 10 years.
The six year limit has been relaxed by a new law on October 17, 2000. Now, you may apply for Extension of Stay of one year at a time, until your Green Card application is processed. The restriction is that you should have applied for Green Card within five years of being on H-1B.
7. Can I bring my dependents on H-1B visa?
Yes, you may bring your dependents on H-1B visa. Your spouse and unmarried children are entitled to an H-4 visa and they can stay as long as you maintain valid H-1B status. However, they may not accept employment, but may attend school in the U.S. You may even bring your servants on B-1 visa.
8. How do I apply for H-1B visa?
An individual may not apply for H-1B visa. H-1B status requires a sponsoring U.S. employer. A U.S. employer has to sponsor the H1B petition to employ a foreign professional.
9. How should an employer petition for H-1B visa?
The Forms to be filed for an H1B petition are:
• Form ETA-9035, Labor Condition Attestation, with the Regional Department of Labor office. Through this application your employer assures the DOL that he/she will provide you with fair salary and equal benefits which are provided to a U.S. citizen. It also states that it was not able to find any U.S. citizen who was qualified for the position
• Form I-129, Petition for Nonimmigrant Worker, with H Supplement, and supporting documentation including the approved LCA should be filed with the USCIS Regional Service Center having jurisdiction over the city of intended employment. When it is approved, the employer or agent is sent a notice or approval Form I-797 and a copy of it is forwarded to the American Consulate
10. What is the processing time for H-1B visa?
The H1B processing time varies because all cases are different. Generally it takes between three to six months to process an H-1B visa. You must wait at least two weeks after you send in your application for a receipt from the USCIS and another two weeks before you call the USCIS to check the status.
Note: When USCIS officials get your application package, they will send you a receipt showing the date your case was received and the receipt number assigned to it. Use the receipt number to track the status of your application when you call the number listed at the bottom of the receipt notice.
11. What do you mean by ‘H-1B dependent employer’?
An employer runs the risk of becoming an ‘H-1B dependent employer’ if he hires too many H-1B employees. Employers are considered to be H-1B dependent if they fall into any one of the following three categories:
• An employer has 25 or fewer full time employees of which more than seven are H-1B employees
• An employer has between 26 to 50 full time employees of which more than 12 are H-1B employees
• An employer has more than 50 full time employees of which 15% or more are H-1B employees
12. When should I file my H-1B petition if I am currently under optional practical training on F-1 visa?
You may file for H-1B status while in your practical training itself. Getting H-1B takes a lot of time and sometimes you might have to wait for three to four months before you resume employment. If you file your H-1B petition while in the practical training, you will have your H-1B ready by the time you are out of training. If the H-1B petition is filed before the expiry of F-1 or B-2, you will not be out of status. If your OPT expires before the H-1B is approved, you cannot legally work until the H-1B is approved.
13. What is the difference between H-1B status and H-1B visa?
An H-1B visa is a nonimmigrant visa issued by a U.S. Embassy or Consulate abroad. H-1B status is a nonimmigrant status issued by the USCIS to foreign nationals already residing in the U.S. or upon entry with an H-1B visa. Legal status allows you to stay legally within the U.S. while a visa allows you to seek entry into the U.S. legally.
14. I have been fired recently while on H-1B status. Can I remain legally in the U.S. by changing status to another nonimmigrant visa category?
Yes, you may apply for Change of Status to another nonimmigrant visa category for which you qualify. USCIS officers have been allowed to exercise their discretion to grant you another nonimmigrant status, if you apply for change of status within 10 days after you are fired.
Note: If you are not planning to depart the U.S. the only way to maintain legal status is to file a new petition under a new employer or change status from H-1B to other nonimmigrant status, such as B-1 or B-2.
15. What is the new ‘displacement’ or ‘no lay-off’ attestation rule?
There are two new ‘displacement’ attestations that apply to H-1B dependent employers:
The first requires the employer to attest that he did not displace and will not displace a U.S. worker employed by the employer within the period beginning 90 days before and ending 90 days after the filing of the H-1B petition based on the Labor Condition Application
The second requires the employer to attest that he will not place the H-1B worker with another employer where:
• The H-1B worker performs duties in whole or in part at one or more worksites owned, operated and controlled by the other employer
• There are employment relationships with the other employer, unless the petitioning employer has inquired of the other employer and has no knowledge that the other employer has displaced or intends to displace another U.S. worker
16. What are the documents required to apply for H-1B visa outside the U.S.?
The documents required for H1B visa application are:
Documents sent by your employer:
• LCA – Labor Certification Approval
• Appointment letter by your Employer
• Tax Returns Papers of the company (if your employer sends them)
• Copy of letter to the Department of Justice
• Copy of letter to the Consular General of the Indian consulate
• Copy of the official evaluation of your degrees (if your employer sends it)
• Degree certificate
• PG certificate (if applicable)
• Appointment and Relieving certificates for all the companies where you claim employment or Service certificates from the company giving dates and duration of your service
Dates of any prior stays in the U.S. in H-1B status
Very short description of job duties with the sponsoring U.S. Company
If occupation requires licensure in the U.S., copy of current U.S. license or temporary license
A copy of your resume, any additional diploma or supporting certificates, just for good measure
Two Demand Drafts made in favor of the name specified – one for Processing Fee ($45)* and the other for Issuance Fee ($100)
Two/three passport size color photographs
If processing H-4 visas for dependent family members, copies of biographic and visa pages for all family members:
• Copies of children’s birth certificates
• Copy of marriage certificate
17. What are the documents required to apply for H-1B status when already in the U.S.?
The documents required to process an H-1B petition while in the U.S. are:
• Copy of the biographic and visa pages of current passport
• Present U.S. address
• Foreign address (may be address of parents or closest relative)
• Day and evening phone numbers and/or e-mail address
• Copy of Form I-94 card
• Copy of all prior H-1B approval notices (if currently on F-1 status, copy of Form I-20)
• Dates of any prior stays in the U.S. in H-1B status
• Current resume listing employment history
• Copy of your university or college degree, and if available, copy of university or college transcripts
• If you have ever obtained a credentials evaluation, a copy of the credentials evaluation
• Title with the sponsoring U.S. Company
• Very detailed description of job duties with the sponsoring U.S. Company
• If occupation requires licensure, copy of current license or temporary license
• Social Security number
• Copy of most recent W2
• Copy of most recent pay slip with current employer
18. What factors determine the prevailing wage for an H-1B beneficiary?
Relevant factors in determining prevailing wage include:
• Job title
• Educational and work experience requirements
• Job duties
• Job location
• Labor contract terms
19. What is the checklist for employers of H-1B applicants?
• Copy of employment agreement, if any
• Salary of the foreign worker
• Full corporate name and address
• Address where the foreign professional will be working
• Name, title, phone number, fax number, e-mail address of company contact who will sign the petition
• H1B visa employer’s federal I.D. tax number
• Gross and net annual income for the employer for the most recent year for which such figures are available
• Current number of employees
• Year the company was established
• Company brochure or other relevant company literature, if available
• Number of H-1B workers on staff
• Title and a detailed description of the position, including responsibilities and duties
• Twenty pieces of corporate letterhead stationary
20. How do I revalidate my H-1B visa?
Getting H-1B status and getting your visa stamped are two different things that are often confused. Getting H-1B approval implies that you are authorized to work in the U.S. and getting visa stamped implies that your passport has been authorized to enter the U.S.
Usually H-1B authorizations are issued for a period of three years and the date stamped on your passport would be close to this period.
21. How do I get extension for my H-1B visa?
H1B extension is the extension of authorization to work in the U.S but it is not the actual visa. In order to travel across the U.S you need to get your visa stamped against the new extension, this is known as H-1B revalidation.
22. What is the new legislation on H-1B visa?
The most recent legislation on H-1B is the American Competitiveness in the 21st Century Act of 2000, which became effective on October 17, 2000. The new legislation permits extension of H-1B status past the six-year limit where a labor certification has been pending for 365 days or longer, regardless of whether or not a Form I-140, Immigrant Petition for Alien Worker, has been filed. Another Act on H-1B is the 21st Century Department of Justice Appropriations Authorization Act, effective since November 2, 2002.
23. What is premium processing of H-1B petition?
Through the USCIS Premium Processing Service U.S. employers may pay a $1,000 fee for expedited processing of their H-1B’s. This service guarantees that within 15 days USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation. This service is available from July 30, 2001. Employers may request Premium Processing by filing a completed Form I-907, Request for Premium Processing Service.
24. What status will be assigned to H-1B workers who are laid-off?
If you are laid-off or have resigned from your current employer, you will lose your status immediately. It is advisable to leave the U.S. as soon as possible to avoid legal issues. You will not be able to change your status to any other visa because you have lost your valid visa status.
25. Can I transfer my H-1B visa to another company?
You may apply for an H1B transfer to another company. For this you need a valid employment in the U.S. Also you have to prove that you have recent pay stubs (at least 60 days old) and last year W2 forms (if applicable). If you do not have recent pay slips, then you may need to explain the reasons to USCIS. (Unpaid vacation or long sick leave approval letters from your current employer may be considered.) As per law, the petitions that were filed after the last date of employment are not eligible for change of status or change of employment because the applicant becomes out of status when the applicant loses the job. The laid off H-1B worker will be considered out of status even though he has valid H-1B visa in his passport or valid I-94 card.
26. I am still the employee of my company, but without pay, what is my status?
As per the law, you should get paid from day one of your U.S. employment. You cannot live in the U.S. without a salary unless you are on unpaid vacation or sick leave. Your status is legal and valid, but if you are not able to find another employment quickly, it is advisable to leave the U.S. If your employer refused to pay your salary, you can complain to the nearest USCIS office or Department of labor (DOL).
27. I’m qualified as an MBA and I wish to work as a computer professional in a company that pays $50,000 annually, will I be considered as an ‘exempt H-1B employee’?
No, you are not an exempt H-1B employee. Your Master’s degree must be ‘in a specialty related to the intended employment,’ which means that your degree must be generally accepted in the industry or occupation as an appropriate or necessary credential or skill for the job. Since an MBA is not generally considered to be a degree necessary for computer programming, it does not meet the higher degree exemption clause.
28. I’m not qualified with a Master’s Degree. But I can show that my work experience is equivalent to the knowledge and background of a Master’s Degree holder. Do I qualify as an ‘exempt H-1B worker’?
No, you do not qualify as an exempt H-1B worker. The equivalence to the degree may not be established through work experience. You must have been awarded a Master’s degree or higher in a field related to the intended area of employment.
29. Can I reenter the U.S. with the same H-1B visa and join another company?
Yes, you may enter the U.S. with an H-1B visa from a different employer to join a new employer, but only if the new employer has filed an H-1B petition on your behalf.
30. What if there is a change in my working conditions while I’m on H-1B status?
As long as you continue to provide H-1B services to a U.S. employer, most changes will not affect your H-1B status. You may change H-1B employers without affecting status, but your new H-1B employer must file a new Form I-129, Petition for Nonimmigrant Worker, before you start working for him. The merger or sale of your H-1B employer’s business will not affect your status in many instances. However, if the change means that you are working in a capacity other than the specialty occupation for which your employer petitioned, it is a status violation.
31. Are there any travel restrictions on H1B visas?
No, there are no travel restrictions on H-1B visa. You may travel outside the U.S. and reenter as many times during the validity period of the H visa and approved petition.
32. Can I intend to immigrate permanently to the U.S. when on H-1B visa?
Yes, you may apply for Adjustment of Status while on H-1B visa. You may be the beneficiary of an immigrant visa petition, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as ‘dual intent’ in the immigration law. During the time your application for LPR status is pending, you may travel on your H-1B visa rather than obtaining Advance Parole or requesting other advance permission from USCIS to return to the U.S.
33. How does AC21 affect the H-1B cap?
Section 214(g) of the Immigration and Nationality Act sets an annual limit on the number of foreign nationals that can receive H-1B status in a fiscal year. For FY2000 the limit was set at 115,000. AC21 increases the annual limit to 195,000 for 2001, 2002 and 2003. After that date the cap reverts back to 65,000.
34. Are there new exemptions to the H-1B cap?
Yes, in addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:
• Institutions of higher education
• Related or affiliated nonprofit entity
• Nonprofit or government research organization
Note: AC21 also specifies that H-1B worker be counted against the cap if the worker transfers from an ‘exempt’ employer to an employer that does not have an exemption. In addition, the FY 2001 cap does not include H-1B petitions filed after USCIS reached the FY 2000 cap on March 22, 2000 but before September 1, 2000. USCIS estimates that approximately 30,000 petitions were filed during that time frame.
35. When did the law come into effect?
Almost all of the provisions of AC21 and the related legislation came into effect immediately upon enactment. The law was officially enacted on October 18, 2000. The sole exception is the increase in H-1B petitioner fee from $500 to $1000, which takes effect on December 17, 60 days after enactment.
36. Are there any new filing exemptions?
Yes, an amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
37. Who are eligible to use the H-1B ‘portability’ provisions?
The portability provisions allow a nonimmigrant foreign national previously issued H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files H-1B petition for the foreign national. Previously, foreign nationals in this situation had to await USCIS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed ‘before, on, or after’ the date of enactment, so all foreign nationals who meet this definition can begin using the portability provisions.
38. Are there any other limitations on the ‘portability’ provisions?
A foreign national must have been lawfully admitted into the U.S. The new employer must have filed a ‘non-frivolous’ petition while the foreign national was in a period of stay authorized by the Attorney General. A non-frivolous petition is one that has some basis in law or fact. USCIS plans to further define this in its implementing regulations. Subsequent to such lawful admission, the foreign national must not have been employed without authorization.
39. How will employers who hire H-1B foreign nationals using the portability provisions comply with their I-9 requirements?
Current regulations, 8 C.F.R. 274A.12(b)(20), authorize employment with the existing employer after a request for extension of H-1B status is filed. The foreign national in this case is employment authorized but the I-9 Form, Employment Eligibility Verification, contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this could involve attaching a copy of the receipt notice for the filed petition along with a copy of the foreign national’s I-94 to the I-9 kept on file.