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’s degree that I obtained in the US?
Yes, of the 85,000 H-1b visas available each year, 20,000 of them are reserved for applicants with Masters degrees or higher obtained in the U.S. With the new process of selection established in 2019, applicants with master’s degrees or higher have greater chance of having their H-1B visa application selected for processing, given that they are now included in the pool when the USCIS selects applications for the 65,000 specialty occupation slots and they are again included in the pool when the USCIS selects applications for the 20,000 slots reserved for advanced degrees.
2. Can I transfer my H-1B visa to different employer? and do I need to wait for the H-1B transfer to be completed before I start working with a new employer?
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.
You can find the prevailing wage
for a specific position and location in the Online Wage Library of the Foreign Labor Certification Data Center.
4. I have been living in the United States for almost five 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 American Competitiveness in the Twenty First Century Act (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 for calculating the time under an H-1B visa?
In order to calculate whether or not an individual has actually started their 6th year under an H-1B visa, it must be determined whether the individual traveled outside the U.S. or was transferring their H-1b without working for the new company, since all of the this time can be deducted from the 6 years. For example, person A received an H-1b in January 2015, 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 2021 (as opposed to January 2021).
6. What do I need to do if I want to change employers and I have H-1b Visa status?
Pursuant to the AC21 law, an H-1b Visa holder may transfer their H-1b Visa to a new employer by having the new employer file a new H-1b visa 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 likely be lost.
7. If I have an H-1b Visa, or I am applying for one, how quickly can my employer apply or start the process to obtain my Residency / Green Card?
H-1b Visas are a dual intent visa (non-immigrant and immigrant intent), therefore your employer may apply for your legal permanent residency or green card
at the same time they apply for your H-1b visa, after you receive your H-1b Visa, or possible even before they file for your H-1B visa.
8. When does my H-1B visa application process have to start in order to start working in a given year?
Currently, all potential H-1b candidates should have their company complete an H-1b registration between March 1st and March 20th of the given year, so that if the registration is selected and the H-1B visa petition is approved, you may start working on October first of that year.
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). The USCIS starts accepting the selected 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 run out early in the year, so it is suggested that the company creates an account and registers as soon as they are permitted (February 24th for creation of an account and March 1st for registration).
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:
Employer Obligations for an 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 other H-1b Visas.
12. What documents does my employer need to provide in order to apply for an H-1b Visa? And what are the fees?
13. What happens to my immigration 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 likely continue in that status. If your former visa has expired, then you may no longer be in status.
14. What is my immigration 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 for 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 visa or OPT (Optional Practical Training) status and you timely filed an H-1b application (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 immigration status while my H-1b Visa transfer application is pending?
Pursuant to the law AC21, you would continue in H-1b status until a decision has been made on your H-1B visa transfer application.
16. What immigration status can my spouse and children obtain if I am 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 (sons and daughters who are single and under 21 years of age) 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 generally not allow them to work in the U.S. However, there are certain situations in which an H-1B spouse may receive employment authorization
. In addition, 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 and eligibility requirements for different types of U.S. visas
17. How long does my H-1b immigration status last?
An H-1B visa may be issued for a maximum of 3 years and an H-1B visa holder generally can maintain H-1B status for 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 year limitation. 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 indefinitely, so long as the qualifying conditions exist.
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?
Generally, there is no numerical limit to the number of employers an H-1B visa holder may have, or transfers an H-1b Visa holder may apply for. There are, however, limitations to the 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 the 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, Form ETA 9089, or an employment 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 for your U.S. residency petition
or the PERM/LCA application, your H-1b status 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 has an employment based residency petition (I-140 or LCA/PERM Form ETA-9089 filed prior to the first day of their 6th year of H-1b status (and the application is pending or approved), may be eligible for a seventh year extension of their H-1B visa, 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 non-7th year H-1b Visas. However, all 7th year extensions require that the petitioning employer who filed the LCA/PERM or I-140 continue supporting the residency process.
23. What happens with my H-1B visa status if I get fired or lose my job? How long do I have to leave the country after my H-1b Visa status expires or my employment is terminated?
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.). H-1b Visas do not have any extension period during which an individual may depart the United States after their employment is terminated, and therefore individuals under H-1B status should depart immediately after their visa expires or they lose their 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.
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 individual situations. Therefore, it should not be construed as legal advice under any cirmcunstance. Please ensure that you consult with an attorney regarding your specific situation before starting a legal process.