H-1B Visa Frequently Asked Questions

 
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H-1B Visa
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H-1B FAQ		 Employer
H-1B FAQ		 Student
H-1B FAQ		 H-1B Visa Holder
H-1B FAQ

    General H-1B Visa Frequently Asked Questions:

      I would like to work in the U.S. Can I apply for the H-1B visa by myself, without an employer?

        No. You must have a legitimate job offer from a U.S. company or organization.

      I have an Associates (2 year) Degree and 1 year of work experience as a Programmer Analyst. Do I qualify for the H-1B visa?

        No. You must have at least a U.S. Bachelor (4-year) Degree or it's equivalent.

        3 years of work experience is equivalent to 1 year of University. So, if you have 6 years of work experience and 2 years of college, you could qualify.

        The Degree and work experience should be directly relevant to your job title.

        You will also want to have your credentials evaluated by a professional evaluation agency to verify to the USCIS that you possess the equivalent of a U.S. Bachelor Degree. We use and recommend Trustforte Corporation.

      How does the H-1B visa quota system work?

        Each October 1st, the USCIS makes available a certain number of H-1B visas for the next 12 months.

        The Quota for the Fiscal Year (FY) 2009 (October 1st, 2008 to September 30th, 2009) is 65,000. There is also a quota of 20,000 for US Master Degree Holders, effectively making the quota 85,000.

        The earliest you can apply for the H-1B Visa is 6 months before the requested start date. You may file on or after 4/1/08 for a 10/1/08 start date.

        H-1B visa holders are not subject to the quota when applying for a transfer to another company or an extension with the same company.

      I have a job offer as a Teacher with a Public School System. Are school systems subject to the annual quota?

        No, they are not. Public School Systems usually have some type of affiliation with a University (usually for student teaching). As non-profit organization affiliated with a University, the Public School System is exempt from the annual quota.

    Employer H-1B Visa Frequently Asked Questions:

      Is any provision made for continuity of H-1B validity in corporate restructuring situations?

        Yes. An amended H-1B petition is not required where a new corporate entity succeeds to the interests and obligations of the original employer, and where the terms and conditions of employment remain the same.

      How would an employer under the section 105 portability provisions fulfill the I-9 verification requirement?

        The situation here is analogous to the 240-day grace period of 8 C.F.R. section 274A.12(b)(20), which authorizes employment with the same employer for up to 240 days after an extension petition is filed. In both circumstances, the employment is authorized but there is no provision on the I-9 form for the documentation of this fact. Thus, employers may want to follow whatever documentation procedures they use for the 240-day grace period.

    Student H-1B Visa Frequently Asked Questions:

      I am an F-1 student working in my OPT (Optional Practical Training) for an insurance company as an Accounts Payable Supervisor. Do I qualify for an H-1B Visa?

        It may be difficult. The USCIS will want to see evidence that the job duties require at least a Bachelor Degree in Accounting.

        Your employer will want to gather evidence that other employees in the same position in your company and industry hold at least a Bachelor Degree in Accounting.

        Your employer will also want to show the USCIS copies of Internal Job Postings and Help Wanted Advertisements that display the requirement of at least a Bachelor Degree in Accounting.

      I am currently on OPT and it will end on June 30 2008. If an employer files for the H-1B Visa for me on or after 4/1/08, can I still stay legally in the US until 10/1/08 whan my H-1B visa starts?

        If your OPT expires ON or AFTER 8/1/08, you will be issued a change of status and an I-94. This means you will NOT be required to leave the US for Consular Processing. This is because you are allowed 60 days after your OPT expires to remain in status in the US.

        If your OPT expires BEFORE 8/1/08, your H-1B petition will be approved, but your change of status will NOT be approved. You will be required to leave the US and attend an American Consulate for H-1B Stamping before returning to the US to start work on 10/1/08.

        To avoid leaving the US, you must somehow maintain legal status. A possible solution is to re-enroll in school from the time your OPT or grace period expires until 10/01/08.

    H-1B Visa Holder Frequently Asked Questions:

      I am working in H-1B Status for a University (cap exempt). Can I transfer to a for-profit company (cap subject) and be exempt from the quota?

        No, but there is another option. You may file a concurrent H-1B Visa with the for-profit company while maintaining your University H-1B Visa. In this scenario, you are able to start work for the for-profit company immediately after filing the petition with USCIS.

      Under the terms of the H-1B visa can I go on a leave of absence for several months to return home to Canada? In other words, will my visa become invalid or will I be able to return and continue working for my original employer?

        Yes, you may take a leave of absence and return home to Canada. At the end of your leave of absence you may return to work in the US.

      I was on an H-1B visa with company A and got laid off on September 9th, I applied for H-4 before September 9th and got it approved recently. My question is its already been 60 days since my termination and now I have a H-4, so can I apply for the H-1B with a different companyt, and am I subject to the annual quota?

        You will be able to apply for an H-1B visa with immediately, and start work as soon as it is filed. You will not be subject to the annual quota.

      Do H-1B Visa Holders have to pay taxes?

        The H-1B visa holder is subject to withholding of Social Security (FICA) tax as well as federal and state income taxes. H-1B visa holders are taxed as "resident aliens", on their worldwide income and may claim deductions for family members.

      My company is laying off workers and I feel that I may be laid off soon, what should I do?

        The USCIS considers H-1B Visa holders to be out of status once their employment ends, unless the H-1B holder has filed a petition to transfer their visa to another company or another type of visa (example: F-1 Student Visa, B-2 Tourist Visa, etc.). There have been rumors that the H-1B holder has 10 days or 30 days after they are laid off to file a transfer petition. This is not true, however the USCIS has stated they are taking into account the current economic slowdown into account when adjudicating H-1B Transfers.

        We recommend filing for a change of status to the B-2 Tourist Visa immediately. This will allow you to remain in status in the US as a Visitor while you either find another job, go back to school, or prepare to leave the US. Click here for details on applying for the B-2 Visa.


      I currently hold an H-1B visa with company A. Company B wants to hire me. What do I do?



      I am an H-1B visa holder and I just got married. My wife and her 12 year old son are in Mumbai. What do I need to do to get them over here?

        First of all, congratulations. Your wife and her son will need to go to the nearest American Consulate with the following documents: Their passports, the son's birth certificate, a copy of your marriage certificate, a letter from your employer stating that you currently work there, and a copy of your H-1B visa and / or approval notice.

        Upon presenting these documents to the Consular Officer, he will stamp their passports with the H-4 visa and they will be free to travel to the U.S. to live with you.

        The H-4 will be valid as long as your current H-1B visa is valid.


      I am an H-1B visa holder and my first 3-year duration is going to expire in 3 months. My employer is filing an extension for me. Do I have to file a separate extension for my wife and child's H-4 visa?

        Yes you do. Use USCIS Form I-539.

        You may use the same form for all of your H-4 dependents. You may file it with the H-1B extension petition or after (as long as you include a copy of the I-797 Filing Receipt from your H-1B extension petition).

      I am currently on an H-1B visa and I don't like the idea of just working for one company. Can I incorporate a company and file a petition to transfer my H-1B visa to my own company?

        Yes you can. Keep in mind however that the USCIS will not approve the petition unless they are convinced that the company is a real, legitimate company and will be able to generate enough revenue to pay your salary (at least the prevailing wage).

        The USCIS will want to see a business plan (including pro forma financial statements), copies of contracts with client companies, and a business lease, among other things before they approve the petition.


      Under what circumstances can someone who is running out of his/her six years in H-1B status extend that status?

        AC21 provides for such extensions in two circumstances:

        Under AC21 section 104(c), a beneficiary of an employment-based first, second or third preference petition who is eligible for permanent residence but for the application of the per-country limits may obtain extension of the H-1B status until the adjustment of status is decided.

        Under AC21 section 106(a), an H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.

      Lately, consular processing at most posts has been faster than adjustment of status at most service centers. Does this legislation nevertheless make adjustment more desirable than consular processing?

        AC21 gives some advantages to people in adjustment of status over people in consular processing, but at least one of the law’s benefits may be useable in either context:

        The section 104(c) extension beyond the sixth year for individuals with employment-based immigrant petitions filed but priority dates not current appears to be available only in the context of an adjustment of status.

        The section 106(a) provision for extending H-1Bs beyond the sixth year when permanent residence processing has taken too long can be read to apply whether the individual pursues adjustment or consular processing, since one can become eligible for its benefits if the petition has been filed. But there is no assurance that USCIS and the State Department will read this provision to apply to consular processing cases.

        Another advantage to the beneficiary of adjustment over consular processing is that the AC21 section 106(c) permanent residence portability provision specifies the filing of an adjustment of status application as a prerequisite for eligibility, and thus appears not to apply to persons in consular processing. Under this provision, someone whose adjustment application has been unadjudicated for 180 days or more can change jobs and/or employers if the new job is in the same or a similar occupational classification as the one for which the petition was filed. (Note that this portability provision does not apply to beneficiaries of EB-1 extraordinary ability petitions, most likely because Congress assumed that such petitions already are portable.)


      How does one become eligible for the AC21 section 105 H-1B portability provisions?

        This section allows a beneficiary of a petition to change employers to begin the new employment upon filing of the petition, rather than waiting for the petition to be approved. The petition must be nonfrivolous, and the beneficiary must be a nonimmigrant admitted to the U.S. (no particular nonimmigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B status), must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed.


      Must an employer under the AC21 section 105 portability provisions pay the higher of the prevailing or the actual wage under the labor condition application?

        Yes. The employment with the new employer cannot begin until the petition is filed. The petition cannot be filed if the labor condition application has not been filed. The INA section 212(n)(1)(A) wage attestation of the LCA requires that the employer “is offering and will offer during the period of authorized employment” the required wage. Since AC21 section 105 makes the I-129 pending period a “period of authorized employment,” those LCA attestations would appear to apply during the period before the petition is approved.


      Can an H-1B Holder start their own company and work for that company?

        Yes, an H-1B Holder start their own company and work for that company. In order for the person on an H1B to work for their own company, the person is usually required to obtain a concurrent H1B approval to work for their own company, in addition to the present employer.

        However, non-permanent residents (such as H-1B visa holders) may not own the shares of an S corporation.

      Can a non-immigrant, foreign worker invest money in any venture?

        A foreign national, living or working in the United States, is allowed to invest money in any venture or enterprise. The law allows foreign nationals in the United States to purchase any assets or property, including real estate. A person on an H1B or other temporary work visa in the United States is legally allowed to invest in any venture or company, and could possibly start to undertake some volunteer work on behalf of the venture or company. However, the person cannot work on a full-time basis for that company and earn a salary, etc. without obtaining prior approval from the USCIS or DOL to work for that venture or company.

      Can an H-1B Holder who starts starts working for his new employer under the AC21 section 105 portability provision leave the U.S. and re-enter before his H-1B Transfer petition has been approved?

        Yes, but in order to re-enter the U.S., the H-1B holder should have a copy of the I-797 Filing Receipt showing that the petition was filed and should have a letter from the new employer stating that the H-1B holder is currently working for the new company.

        An H-1B applicant for admission who is no longer working for the original petitioner is admissible at a POE, pursuant to portability in AC21, as long as certain conditions listed below are met.

        If these conditions are met, the H-1B applicant is admissible to the validity date of the previous H-1B petition, plus ten days.

        H-4 applicants for admission, who are dependants of H-1B aliens employed pursuant to visa portability provisions, must meet these same requirements:

          The applicant is otherwise admissible.

          The applicant, unless exempt under 8 CFR 212.1, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner).

          The applicant establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B or the otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition’s validity dates.

          The applicant presents evidence that new petition was filed timely with the Service Center, in the form of a dated filing receipt, Form I-797, or other credible evidence of timely filing that is validated through a CLAIMS query. In order to be a timely filing, the petition must have been filed prior to the expiration of the H-1B’s previous period of admission. It must be emphasized that the burden of proof remains with the alien to prove that he or she is admissible as an H-1B and eligible for a visa portability provisions described in AC21.

      If an H-1B holder wants to travel out of the US or visit home country for a short time, What he needs to do in order to re-enter the US?

        Get your visa stamped at the American Embassy in your home country.

      I am currently working with company A . I am planning to join company B . I already have my Visa stamped under company A. When I transfer my H1B to company B do I have to get a new visa stamped again from India or I can continue to be in USA until I leave USA and re-enter.

        You only have to get the new Company B H-1B Visa stamp in your passport if and when you leave the US.


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