H1B FAQs27 Jun 2011
There are many questions about the H1B specialty occupation category, which are asked often enough to qualify as frequently asked questions (FAQs). These provide brief information on some of the most common H1B questions. The Murthy Law Firm is available to individuals and employers who require more detailed guidance, specific to their unique situations.
Question 1. What is the H1B cap and how does it work?
The H1B cap is an annual limitation on the number of new visas available for H1B workers. The cap is currently set (by Congress) at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for programs for nationals of Chile and Singapore. This does not include the 20,000 additional visa numbers available to persons who have earned masters’ or higher degrees from U.S. institutions of higher education.
Question 2. When should H1B cases for cap-subject cases be filed and how does the timing work?
The cap numbers become available each year on the first day of the U.S. government’s fiscal year. The government’s fiscal year starts on October 1st and ends the following September 30th. Cases can be filed up to six months in advance of the requested start date. Therefore, the earliest that cap-subject H1B petitions can be filed by employers is the first business day in April, which is usually April 1st, requesting an October 1st start date.
If the H1B cap is reached by the 5th business day in April, the USCIS will conduct a lottery to select the petitions that will be accepted for processing. If the H1B cap is not reached by the fifth business day in April, then the USCIS will continue to accept H1B cap cases for that fiscal year until the quota is reached, or until the end of that fiscal year, whichever comes first.
For example, for fiscal year 2015 (FY15), all cap-subject H1B petitions filed between April 1st and April 7th, 2014 will be included in the lottery, assuming a lottery is needed. If the cap is not reached by April 7th, meaning that no lottery is needed, the USCIS will continue to accept cap-subject petitions for FY15 until the cap is reached or until the last day of that fiscal year, which is September 30th, 2015.
Question 3. I understand that certain employment may be cap exempt. What kinds of employment arrangements qualify?
Some employment is exempt from the need for a cap number and is referred to as cap exempt. Cap-exempt employment includes employment “by” or “at” universities and their nonprofit affiliates, as well as nonprofit entities related to or affiliated with institutions of higher education, and governmental research organizations. Evidence must be submitted to document qualification for cap exemption.
The USCIS has recently provided interim guidance for H1B cap exemptions for nonprofits. The USCIS will defer to a prior determination of cap exemption IF a petitioner can demonstrate that the USCIS previously determined it was cap exempt. One should discuss the possibility of being cap exempt with a qualified and experienced immigration attorney, as such a determination may be fact-specific.
Question 4. How do I know if I qualify for H1B employment?
Generally, one may qualify for H1B employment if the offered position normally requires a bachelor’s degree or its equivalent. The individual must have received education in a particular field of study that is relevant to the offered position. One must have the required education or its equivalent at the time the case is filed.
Question 5. Can I begin working for my new employer once I have filed the H1B petition?
It depends. If one is currently in H1B status with another company, then s/he may be legally allowed to start working for the new employer upon USCIS’ receipt of the H1B petition. Otherwise, one generally must await an approval of the H1B petition and a change of status. It is important to verify one’s eligibility to commence employment with the new employer to avoid unauthorized unemployment, which may lead to problems later, when attempting to adjust status to lawful permanent resident (LPR).
If the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), one may continue to work for the new employer until the expiration date on the I-94 card / H1B approval notice. If the H1B petition is approved without an I-94 card, one may have to immediately stop working, depart the United States, apply for an H1B visa at a U.S. consulate in the home country, and finally be readmitted in H1B status before being authorized to continue working for the employer. Status issues can be complicated and, if there is any question as to whether or not one is authorized to engage in H1B employment, s/he should consult with an experienced immigration attorney.
Question 6. Why does an H1B transfer take so long? Isn’t there an easier process?
The process for filing an H1B “transfer” petition is the same as the process for filing a new H1B petition, since each H1B petition is employer specific. Therefore, it generally takes the same amount of time to process the H1B petition. The main difference between an H1B “transfer” and a new H1B petition is that one who already holds an H1B status is generally not subject to the H1B cap and does not need to wait until October 1st to start working.
The USCIS offers a premium processing service for an additional fee. With premium processing, the USCIS will take action on a filed petition within fifteen (15) calendar days of its receipt with the service center.
Question 7. My friend filed his H1B petition at the same time as I, but his petition was approved already. Why wasn’t mine approved yet?
Each USCIS service center and each USCIS officer has a different caseload and each one takes a different amount of time to process cases. Unfortunately, there is nothing a law firm can do to ensure that a case will be processed in the same amount of time as other cases. In addition, one can upgrade their H1B petition to Premium Processing with USCIS at any time while it is pending with the USCIS if quicker processing is required.
Question 8. I am here in H1B status and my H1B visa has expired. What should I do?
If it is, in fact, just the visa in one’s passport that has expired and not the H1B status, itself, then there is no need for concern.
The visa is a travel document only. If the visa in one’s passport expires, one would need to apply for another visa at a U.S. consulate abroad the next time s/he travels outside the United States.
Generally, one’s legal status in the U.S. depends upon the expiration date on the I-94 card, written by the immigration officer at the port of entry. As long as the latest I-94 card (either a small white card typically stapled in the passport or an updated one located at the bottom of the latest approval notice) is currently valid, and one is continuing to work for the sponsoring employer under the terms of the petition, then s/he is legally permitted to be in the U.S., whether or not the visa in the passport has expired. If it is, in fact, the status (as indicated on the I-94) that has expired, one should contact an attorney immediately to discuss available options.
Question 9. If I have an H1B approval, can I work for my employer in any state in the United States?
The USCIS has taken the position that a person is only authorized to work at the specific location or in the metropolitan area listed on the Labor Condition Application (LCA) certified with the U.S. Department of Labor (DOL), and filed with the H1B petition. Generally, there must be a certified LCA for each location at which one will work, attesting that the employer will comply with the prevailing wage requirement for that local area.
There is a discrepancy between the DOL regulations and USCIS regulations with regard to an H1B employee’s change in work sites. The USCIS regulations require an amendment to the H1B that includes certification of the new location and the DOL regulations provide that certifying the LCA prior to the move is sufficient (i.e. an amended petition is not necessary). As this discrepancy creates a gray area of law, it is best to consult with an experienced immigration attorney prior to working at a location not previously certified in the LCA or listed in the approved H1B petition in order to determine if one should file an H1B amendment with the USCIS.
Question 10. I was in H1B status and changed to F-1 status. I am now ready to work in H1B status again. Do I get six more years in H1B status?
No. The six-year clock in H1B status is not reset unless one leaves the United States for at least one year. As a result, the time previously spent in H1B status will be counted against the six-year H1B limit.
Individuals who previously held H1B status in the last six years, and subsequently left the U.S. for at least a year, generally have the option of either using the time remaining in H1B status without being subject to the cap or applying for another six years of H1B employment subject to the cap.
Question 11. I’m in F-1 status and have a practical training work permit. If my work permit expires, do I have to stop working until the H1B approval comes through?
Yes. One must stop working upon the expiration of the EAD or the OPT if an H1B cap case petition was not filed requesting a change of status prior to the expiration of the completion of the school program or end of optional practical training (as indicated on one’s employment authorization card). If a petition for a change of status is timely filed for an October 1st start date (i.e. filed before the OPT period ends), then one may continue working between the expiration of the employment authorization and start of the H1B status (October 1st). If the petition is denied then one will no longer be eligible to remain and work in the U.S. pursuant to cap gap.
In general, one will not receive a new I-20 or be able to renew their employment authorization card. One should, however, keep the designated official at the school updated as to the status of the cap case and provide him/her with copies of receipts and approval notices so that the SEVIS records can be properly maintained.
If an H1B petition requesting a change of status is filed within the 60 day grace period that follows the conclusion of authorized employment (OPT) or the F-1 academic program, then one may legally remain in the U.S. until the start of the H1B but will not have employment authorization. The individual will have to depart the U.S. if the H1B petition is denied.
If one is unable to file the H1B cap case and request a change of status petition prior to the conclusion of their F-1 status or 60 day grace period, one should try to maintain status during this time, by enrolling in another program or changing to another nonimmigrant category, such as H-4, in order to remain in the U.S. In these circumstances the petition may need to be prepared for consular processing and one should depart the U.S. prior to the expiration of one’s status. Upon approval, the U.S. consulate abroad will be notified where one may apply for an H1B visa for entry into the U.S. in H1B status. If both one’s petition and change-of-status request are approved (from F-1 to H1B), then the approval notice should have an I-94 card attached at the bottom.
Question 12. My spouse is in H-4 status and was offered a job. Can s/he begin working?
No. H-4 is a non-working status. In order to be legally authorized to work in the U.S., one who is in H-4 status must have an employer file an H1B petition or a petition for another working status (other working category). The petition must request a change of status specifically. Of course, one’s spouse must meet all of the H1B requirements. Once the petition is approved, with the change of status (I-94 card attached), the spouse’s work authorization begins on the start date on the approved petition. If the petition is approved but change of status is not approved (not issued the I-94 card), then one will need to travel to a U.S. Consulate abroad to obtain an H1B visa stamping before returning to the U.S to work pursuant to the H1B approval.
Question 13. I held H1B status and my spouse was in H-4 status, but no one told us we had to apply separately to extend her H-4 status. She has been out of status for over eight months. What can I do?
In this situation, one should contact an experienced U.S. immigration attorney immediately. This is a very difficult situation and the assistance of a knowledgeable professional will be required to develop a plan of action and help one to understand the risks and issues involved with each option.
There is a strong likelihood that the 3-year or 10-year bar could apply against the spouse in this case for failure to maintain lawful status beyond 180 days. According to the USCIS, ignorance of the law is never a valid excuse.
At the time of filing the H1B extension, many people assume that all dependents are automatically included. This is not the case.
Question 14. My husband and I each hold H1B status. I would like to change my status to H-4. Can I do this?
Yes. To do this one needs to file an application with the USCIS to change status from H1B to H-4. In doing so, one must establish that both the primary H1B and the spouse are maintaining current legal status in order for the USCIS to approve the change of status. It is safest for the H-4 applicant to continue working until the application is approved, although upon filing the H-4 application for change of status, one generally is allowed to stop working. Another path to H-4 status is to obtain an H-4 visa at a U.S. consulate abroad and use it to reenter the U.S. If one is unsure as to which method to use, we suggest a case-specific consultation with an experienced, reputable U.S. immigration attorney.
Question 15. I currently hold H1B status. Can I start my own company?
If one is in H1B status and they wish to start and work for their own company a new H1B petition must be filed. Most recently, USCIS issued a memorandum in January 2010 in which USCIS takes the approach that in such a case, when one “self-petitions,” the H1B petition may not be successful because the petition may not be able to establish that the requisite employer / employee relationship exists. For immigration purposes, the employer / employee relationship must be present and this often may be difficult to establish in a closely-held, corporate entity. Other legal issues, as well as many practical business matters, may create obstacles, as well. On August 2, 2011 the USCIS provided updated guidance on what constitutes an employer / employee relationship for H1B purposes. Particularly, the USCIS looks at the petitioner’s right to control the beneficiary’s employment. Based on this updated guidance, it may be possible for an entrepreneur to qualify for H1B classification.
Please note that one may be able to passively invest without filing an H1B petition. Please be sure to consult with a qualified immigration attorney before taking any steps in starting one’s own company to ensure that you are not engaged in unauthorized employment.
Question 16. I currently hold H1B status and I am changing employers. I want to travel to my home country. Is it legal for me to leave?
Generally, yes, this may be possible. The timing of such a trip can complicate the situation. Although there have been several changes in the Legacy INS’s interpretations affecting those who travel abroad while a petition is pending, the safest option is to avoid international travel unless one has received the new H1B approval and the timing is also first discussed with an experienced U.S. immigration attorney.
Question 17. I hold H1B status and would like to file another H1B petition with another employer, but I want to wait before I start work. Can I do this?
Yes. There is no obligation to begin work immediately. One must maintain lawful status by working for one of the companies that has an approval for that individual. There is nothing to prevent one from waiting to begin work, especially if there is a project to finish. As long as the prior employer has not revoked the H1B petition with the USCIS, or the petition has not expired, it still is legal to be working for the prior company.
Question 18. I filed my H1B petition through another attorney over two months ago. Is there anything you can do to expedite the case?
Yes. The case may be upgraded to Premium Processing by filing the appropriate forms and including the required fee. The USCIS will take action on the petition within fifteen (15) calendar days of receiving the premium-processing request. If one is not willing to pay the premium processing fee, then expedites are difficult to obtain in most cases. The USCIS generally will expedite cases for the following reasons (and they do not view requests for expedites favorably):
(i) emergent reasons
(ii) severe financial loss to the company, which must be evidenced in specific terms, i.e., not a broad and general statement of possible loss of revenue or income
(iii) USCIS’s own error
(iv) humanitarian reasons
Question 19. I currently hold H1B status. Am I subject to the H1B cap?
This depends. Typically, if one is in H1B status and has already been counted against the H1B cap, s/he is not subject to the H1B cap. Individuals who have only held H1B status with cap-exempt employers, like universities or nonprofits associated with institutions of higher education, are not deemed to have already been counted against the H1B quota. An individual who has not been counted against the cap should consult with an experienced immigration attorney regarding possible strategies.
Question 20. If I have a valid H1B visa in my passport and I leave the United States, can I come back and work for a different employer without having to go through the USCIS?
No. One must have the new company’s H1B petition approved through the USCIS, since each H1B petition is employer specific. This applies to any company for which one might work, whether or not s/he already holds H1B status. However, if the visa has not expired in the passport, but now one has a new H1B petition approved to work for another employer, it is possible, in most cases, to use the old H1B visa and show the new employer’s H1B approval notice to obtain a new I-94 card at the port of entry. The new I-94 card should have an expiration date that matches the expiration date on the new H1B approval notice. If the USCIS officer makes a mistake and only issues an I-94 card valid until the expiration date of the visa, one should request at that time that the officer indicate the correct date. If the officer refuses to correct his/her mistake, then one should ask respectfully to speak with a supervisor. If one later notices an incorrect date on an I-94 card, one should immediately consult with a qualified immigration attorney to discuss what steps could be taken at that time to resolve the situation.
Question 21. I am the president of a small IT consulting firm. I have heard that the USCIS is closely scrutinizing petitions filed by companies such as mine. What steps should we take to maximize our chances of receiving approved H1B petitions for IT consultants?
IT consulting firms should provide strong evidence to show that they have specific, H1B-level work for their consultants at the time of filing. If a consultant will be working on a project at the firm, the USCIS expects to be provided with detailed information on the project, including its technical specifications, the end-product, and a business plan / market analysis (target market, expected revenue stream, anticipated length of the project, etc). If the project will not earn a revenue stream in a relatively short period of time, the firm should be prepared to provide evidence that the H1B employee’s salary can be paid through other means.
If a consultant will be placed at a work site of an end client, this location should be stated in the H1B petition and in the certified labor condition application (LCA) that accompanies the petition. One must also provide strong evidence of the specific project that is immediately available to the employee at the time of filing the petition or the requested start date. Contracts, purchase orders, end client and vendor letters, and other supporting documentation must demonstrate to USCIS that there is an H1B position available to the employee and that the employee’s services are needed for the entire duration of time requested in the H1B petition. If such evidence is not available, the USCIS will likely issue a request for evidence or deny the H1B petition. One should work with a qualified immigration attorney to ensure that the best documentation is provided with the initial petition.
If the firm has identified more than one work location or project for the employee for the time period requested in the H1B petition, then one must be able to provide a detailed itinerary (or schedule) indicating when the employee will be working on the specific projects at each location. The firm must also be able to provide complete evidence for each project or assignment that the employee will be assigned in order to evidence that there is a bona fide specialty occupation available for the duration of the H1B petition.
One cannot generally change locations and file new LCAs in response to a request for evidence (RFE) or while a petition is pending with the USCIS. If there is a location change after a petition is approved, or other details of the employment change, one may need to file an H1B amendment petition.
Question 22. My employer would like me to pay all the USCIS fees for filing an H1B petition on my behalf. Is this allowed?
No. The employer must pay the training fee for the petition, if applicable, and one should not enter into a reimbursement agreement with the employer. The employer must also pay the fraud fee, if applicable, and it is recommended that the employer also pay the base filing fee. Best practice is for the employer to pay all fees.
Question 23. I am graduating from a master’s program in the U.S. this coming May. Can I apply for the masters’ cap when filing my H1B petition?
This depends. If one would have completed all the requirements for the degree at the time of filing (April 1st), then s/he may apply for the masters’ cap. It is not necessary to have the physical diploma in one’s possession. However, a letter should be submitted from the university stating that the degree has effectively been awarded and the diploma will be sent or presented at a later date. One should not apply for the masters’ cap if the degree requirements will not be completely fulfilled by April 1st.
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