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H-1b Visas for Professional Employees: Frequently Asked Questions (FAQ)

 

1. Is there a benefit or preference for an H-1b Visa if I have a Masters degree that I obtained in the US?

There are 20,000 additional H-1b Visas for individuals who obtained a Masters degree in the U.S. If one of the 20,000 visas is not available for the individual, then the person will automatically be moved to the 65,000 bachelor degree visa group and be eligible for selection again.

2. Can I start working with my new employer before I finish transferring my H-1b Visa?

Yes. The law (AC-21) allows an H-1b 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 H-1b 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.

3. What is a prevailing wage?

The prevailing wage is the wage or salary that the U.S. Department of Labor 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 and according to the Bureau of Labor Statistics.

4. I have been living in the United States for almost six years under an H-1b 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/her H-1b Visa beyond 6 years, for what is commonly known as the 7th year extension, so long as the individual has:

1). An LCA (Labor Condition Application) filed prior to the beginning their 6th year on the H-1b Visa, and

2). This LCA is pending, or if it has been approved, there is a related I-140 (employment residency petition) pending, or an I-140 approved related to the specific LCA that was filed before the 6th year of the H-1b Visa.

5. How do I calculate when I will be entering my 6th year with an H-1b Visa? Does the time I traveled outside the U.S. count?

In order to calculate whether or not an individual has actually started his/her 6th year, it must be determined whether the individual traveled outside the U.S. or was transferring his/her 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).

6. 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 may begin working for the new employer as soon as the application has been filed (prior to receiving approval of this application). However, if the H-1b transfer is not approved the original H-1b Visa will be lost. It is therefore recommended to complete the transfer before starting work for the new employer.

7. 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 legal permanent residency or green card as soon as you receive approval for your H-1b Visa.

8. 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).

9. Why is it important to apply on April 1st or as soon as possible, for the H-1b Visa?

By law, there are only 65,000 capped H-1b Visas (for professional bachelors) and 20,000 (for advanced degree professionals) available each year (there are certain H-1b Visas not subject to the yearly cap—see link below). The USCIS starts accepting H-1b Visa applications on April 1st, for the visas that will be issued in October of that year. In the past, H-1b Visas have ran out early in the year, so it is suggested that you apply as close to April 1st (the earliest these visa applications are accepted), to have a higher chance of there being visas available. The USCIS regularly reports on the number of H-1b visas still available for the year and you may check their web site for this information: USCIS on H-1b Fiscal Year (FY) 2014 Cap Season.

10. 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:
H-1b Visa

11. 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.

12. 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 H-1b 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 a complete list of employer documents needed and more information on H-1b Visas and fees, please visit our H-1b web page.

13. What happens to my status if my H-1b Visa application is denied?

It would depend on the situation. If you are currently in the United States with a valid non-immigrant visa, you would continue in that status. If your former visa has expired, then you would no longer be in status.

14. 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 H-1b 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 timely 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 this case, your F-1/OPT status and work authorization (if previously granted), would be extended until a decision is made on your application.

15. What is my status while my H-1b Visa transfer application is pending?

Pursuant to the law AC21, you continue in H-1b status until a decision has been made on your application.

16. What status can my spouse and children obtain 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 U.S.?

Based on the H-1b Visa holder’s status, spouses and children can apply to obtain an H4 Visa (a derivative of the H-1b Visa), which allows them to live and study in the U.S., but will not allow them to work in the U.S. 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 about different types of visas.
General Immigration

17. How long does my H-1b status last?

Generally, H-1b status lasts 6 years. However, time spent outside the U.S. 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.

18. 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.

19. 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 indefinitely, under the AC21 law, given all requirements are met (i.e. an LCA/PERM process was initiated).

20. I am about to enter my 6th year on my H-1b 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 the 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 be sure to review the circumstances of your individual case with your attorney.

21. 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 H-1b 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.

22. 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-1b 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.

23. 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.

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