H-1b Visas for Professional Employees
- Can I start working with my new employer before I finish transferring my H-1B visa?
- What is a prevailing wage?
- I have been living in the United States for almost six years under an H1b visa and my visa will be expiring soon, are there any options for me to stay here longer or to obtain my green card?
- What do I need to do if I want to change employers and I am under an H-1b visa status?
- If I have an H-1b visa, or I am applying for one, how quickly can I apply or start the process to obtain residency or a green card?
- When do I have to apply for an H-1b in order to start working in a given year?
- What is the likelihood that my H-1b visa will be accepted for processing if I apply by April 1st?
- What are the responsibilities of the employer who sponsors an H-1b visa?
- How many employees can an employer have with H-1b visas?
- What documentation does my employer need to provide in order to apply for an H-1b visa? and what are the fees?
- What happens to my status if my H-1b visa application is denied?
- What is my status while my first H-1b visa application is pending?
- What is my status while my H-1b visa transfer application is pending?
- What status can my spouse and children get if I’m applying for an H-1b visa or I already have an H-1b visa, and can they work and/or study in the US?
- How long does my H-1b status last?
- How many times can I renew my H-1b visa?
- How many times can I change employers under my H-1b visa status?
- I am about to enter my 6th year on my H1B visa, how can I extend my status?
- I have been living in the United States for almost six years under an H1b visa and my visa will be expiring soon, are there any options for me to stay here longer or to obtain my green card?
- Who is eligible for a seventh year H-1b visa extension?
- Can I change employers if I am on my 7th year H-1b visa extension?
- How long do I have to leave the country after my H-1b visa status expires or I lose my job?
1. Can I start working with my new employer before I finish transferring my H-1B visa?
Yes. The law (AC-21) allows an H-1 B visa holder to begin working with a new employer as soon as his/her transfer application has been filed with the immigration service, without having to wait for an approval. However, if your H1B transfer application is denied, you will be left out of status or “illegal”, making it much more difficult to return to legal status in the future.
2. What is a prevailing wage?
The prevailing wage is the wage or salary that the State Department of Employment estimates is the median or most common wage paid by employers within that state for a specific position, based upon the duties of the position and the qualifications of the applicant.
3. I have been living in the United States for almost six years under an H1b visa and my visa will be expiring soon, are there any options for me to stay here longer or to obtain my green card?
Under the law AC21 an individual may extend his H-1b visa beyond 6 years, so long as an employment based Immigrant visa process (PERM/LCA or I-140) was initiated before his 6th year began. In order to calculate whether or not an individual has actually started his 6th year, you must examine whether the individual traveled outside the U.S. or was transferring his H-1b without working for the transferee company. All of the aforementioned time can be deducted from the 6 years. For example, person A received an H-1b in January 2000, however, he has returned to his country for summer vacation for a total of 6 months during his 6 years under H-1b status. His 6th year would not begin until July of 2006 as opposed to January 2006).
4. What do I need to do if I want to change employers and I am under an H-1b visa status?
Pursuant to the AC21 law, an H-1b visa holder may transfer his/her H-1b visa to a new employer by having the new employer file a new H-1b application. The H-1b holder begin working for the new employer as soon as the application has been filed (prior to receiving approval of this application).
5. If I have an H-1b visa, or I am applying for one, how quickly can I apply or start the process to obtain residency or a green card?
H-1b visas are a dual intent visa (non-immigrant and immigrant intent) and therefore you may apply for your residency as soon as you receive approval for your H-1b visa.
6. When do I have to apply for an H-1b in order to start working in a given year?
Currently, all potential H-1b candidates should apply for an H-1b on April 1st (the first day the USCIS accepts H-1b applications for visas to be issued on October 1st of that same year), of the first year of potential eligibility (the first year in which you have identified an employer willing to sponsor you).
7. What is the likelihood that my H-1b visa will be accepted for processing if I apply by April 1st?
Pursuant to the most recent estimates (2008), the USCIS received over 250,000 applications for 65,000 professional/bachelor H-1b visas available and 20,000 advanced degree H-1b visas available. Based upon these statistics we can estimate the likelihood of obtaining an H-1b to be 34% (please allow a margin of error, given the fact that it is not published how many applicants have advanced degrees). The earlier you know if you will obtain this visa, the better you will be able to plan for other alternatives if necessary.
8. What are the responsibilities of the employer who sponsors an H-1b visa?
The employer must comply with the conditions identified in the H-1b petition, specifically regarding salary, position, job duties, and location of work site. If there are any material changes to the conditions set forth in the H-1b visa petition and the supporting LCA, the USCIS and or the Department of Labor should be notified. In addition, employers have the responsibility to keep employment/salary records and pay a portion of transportation costs for the H-1b employee to return to his/her country if employment is terminated by the employer. For a full list of employer obligations visit:
http://www.fitzgeraldlawcompany.com/h1b.html
9. How many employees can an employer have with H-1b visas?
There is no specific number limitation in this regard, however, if there is a significant percentage of the employees of a company on H-1b visas, the Department of Labor may categorize the employer as H-1b dependent and place additional restrictions on the employer’s ability to apply for a new H-1b visa.
10. What documentation does my employer need to provide in order to apply for an H-1b visa? and what are the fees?
The documentation required of an employer to sponsor an H1b visa is a job description which would establish a requirement for a bachelors’ degree or greater for its performance, financial records that demonstrate the ability to pay the employee the prevailing wage for the position offered, and an approved labor certification application ETA 9035. For more information on H-1 b visas and fees, please visit our H-1b web page.
11. What happens to my status if my H-1b visa application is denied?
It would depend on each situation. If you are currently in the United States with a valid non-immigrant visa, you continue in that status. If your former visa has expired, then you will no longer be in status.
12. What is my status while my first H-1b visa application is pending?
Your status continues to be the status you had at the time that you applied. If your non-immigrant status expires while the H1b application is pending and there is a visa immediately available to you, then your status will be "an applicant for a non-immigrant visa" and you are permitted to remain in the United States until a decision on your application is made. However, if there is not a visa immediately available, then the visa application does not provide any "status" while it is pending, unless you were on an F-1 status or OPT (Optional Practical Training) and filed an H-1b application timely (during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect), in which case your F-1/OPT status and work authorization (if previously granted) is extended until a decision is made on your application.
13. What is my status while my H-1b visa transfer application is pending?
Pursuant to the law AC21, you continue in H1b status until your application is decided.
14. What status can my spouse and children get if I’m applying for an H-1b visa or I already have an H-1b visa, and can they work and/or study in the US?
Based on the H1b visa holder’s status, spouses and children can apply to obtain an H4 visa (a derivative of the H1b visa, which allows them to live and study in the US, but will not allow them to work in the US. However, family members may apply for a different visa if they fulfill the visa’s eligibility requirements. See the immigration section of our site which provides eligibility requirements and information for different types of visas.
15. How long does my H-1b status last?
Generally, H-1b status lasts 6 years. However, time spent outside the US or non-working time during an H-1b transfer procedure does not count towards the 6 years. Also, if a residency petition or LCA/PERM petition was initiated prior to the first day of your 6th year, under the AC21 law, you may qualify for a 7th year extension and that 7th year extension may be renewed on multiple occasions.
16. How many times can I renew my H-1b visa?
Generally an H-1b visa may be renewed as often as is necessary for the individual to complete the 6 years allowed by the H-1b visa law. An individual may be eligible for additional extensions pursuant to the AC21 law (an LCA/PERM process must have been initiated), given that all the requirements are met.
17. How many times can I change employers under my H-1b visa status?
There is no numerical limitation to the number of transfers an H-1b visa holder may apply for. There are however, validity periods. For example, the initial H-1b validity period is 6 years. After that, an individual may leave the U.S. for a period of time and then begin a new 6 year period or in the alternative may be eligible for 7 year extensions and beyond, under the AC21 law, given all requirements are met (i.e. an LCA/PERM process must have been initiated.)
18. I am about to enter my 6th year on my H1B visa, how can I extend my status?
You may have an H-1b visa for more than 6 years if prior to the beginning of your 6th year your employer files a PERM/LCA petition, ETA 9089 or an immigrant visa petition, form I-140 on your behalf. Please note that in order to file a PERM/LCA application, the employer must have completed a series of recruitment procedures, so this process should be initiated well in advance of your 6th year. Once your employer has filed your residency petition or the PERM/LCA application, your H-1b may be extended indefinitely on an annual basis with some important exceptions or restrictions. Please make sure to review the circumstances of your individual case with your attorney.
19. I have been living in the United States for almost six years under an H1b visa and my visa will be expiring soon, are there any options for me to stay here longer or to obtain my green card?
Under the law AC21 an individual may extend his H-1b visa beyond 6 years, so long as an employment based Immigrant visa process (PERM/LCA or I-140) was initiated before his 6th year began. In order to calculate whether or not an individual has actually started his 6th year, you must examine whether the individual traveled outside the U.S. or was transferring his H-1b without working for the transferee company. All of the aforementioned time can be deducted from the 6 years. For example, person A received an H-1b in January 2000, however, he has returned to his country for summer vacation for a total of 6 months during his 6 years under H-1b status. His 6th year would not begin until July of 2006 as opposed to January 2006).
20. Who is eligible for a seventh year H-1b visa extension?
An individual in H-1b status who had a residency petition (I-140) or LCA/PERM petition filed prior to the first day of their 6th year of H-1b status (and the application(s) is pending or approved), is eligible for a seventh year extension, under the AC21 law. Please note that calculating the date on which the 6th year of H1-b status begins requires careful review because it involves numerous factors (see previous question). Please bear in mind that the sponsoring employer must be committed to continuing with the residency process.
21. Can I change employers if I am on my 7th year H-1b visa extension?
Yes, you may change employers on your 7th year visa extension. 7th year H-1b visas are transferable under the same conditions as a non-7th year H-1 b visas. However, all 7th year extensions require that the petitioning employer who filed the LCA/PERM or I-140 is still supporting the residency process.
22. How long do I have to leave the country after my H-1b visa status expires or I lose my job?
H-1b visas do not have any extension period during which an individual may depart the United States and therefore you should depart immediately after your visa expires or you lose your job. There are other visas that contain an automatic departure period. For example an F-1 student visa contains an automatic 60 day departure period. However, H-1b visas do not. Also, H-1b visas become invalid upon the termination of employment or non-compliance with the conditions of the H-1b visa (i.e. salary, position, duties, etc.)
IMPORTANT NOTE ABOUT THIS DOCUMENT
The information contained in this document is general in nature and subject to change at any point in time. As such, it may not necessarily apply to all situations. Therefore, under no circumstance it should be construed as legal advice. Please ensure that you consult with an attorney regarding your specific situation before starting a legal process.
