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 have obtained a master’s degree in the United States. If one of the 20,000 visas is not available for this person, then they will automatically be moved to the pool of 65,000 visas for people with 4‑year university degrees, and will be eligible again for selection.

2. Can I transfer my H-1B visa to a different employer? and do I need to wait for the H-1B transfer to be completed before I can start working with the new employer?

The law (AC‑21) allows the holder of the H‑1B Visa to begin working with a new employer as soon as that employer has filed the application for the H‑1B Visa transfer, without having to wait until that application is approved. However, if your application to transfer your H‑1B Visa is denied, you will fall out of status or become “illegal,” and it may be much more difficult for you to return to a legal immigration 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 average or most commonly paid wage by employers for a specific position based on the responsibilities of the position and the qualifications of the applicant, within the geographic region where the tasks will be performed, according to information from the U.S. Bureau of Labor Statistics.

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?

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?

To determine whether the sixth year has begun or not, one must check whether this person traveled outside the United States or if at any point they were transferring an H‑1B Visa without working for the new company that sponsored them, since this time can be subtracted from the 6 years. For example, a person receives an H‑1B Visa in January of the year 2000. This person travels to their country for summer vacation for a total of 6 months during those 6 years of having obtained their H‑1B Visa; those 6 months do not count, and their sixth year would not begin until July 2006 instead of January 2006.

6. What do I need to do if I want to change employers and I have H-1b Visa status?

Under AC21 law, the H‑1B Visa can be transferred to a new employer as long as that new employer files a new application for an H‑1B Visa. The worker with the H‑1B Visa may begin working for the new employer as soon as this new application is filed (even before the visa is approved). However, if the transfer is not approved, the original H‑1B Visa will be lost. For this reason, it is advisable to complete the transfer before starting the new job.

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 dual‑intent visas (non‑immigrant and immigrant intent), and therefore your employer may apply for lawful permanent residence or a green card for you before, at the same time as applying for the H‑1B Visa, or after you obtain the 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 candidates for the H‑1B Visa must apply on April 1 (the first day USCIS accepts H‑1B Visa applications to issue them on October 1 of the same year), of the first year of potential eligibility (the first year in which you identify 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 bachelor‑level professionals) and 20,000 (for professionals with graduate or advanced degrees) each year (there are some H‑1B Visas that are not subject to these limits—see link below). USCIS begins accepting H‑1B Visa applications on April 1 for visas that will be issued in October of that same year. In the past, H‑1B Visas have run out early in the year, therefore it is suggested that you apply on April 1 (the earliest date these applications are accepted) to have a greater chance that visas are still available. USCIS regularly reports the number of H‑1B Visas still available for the year, and you can visit their website to obtain this information by following this link: 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 Visa application, especially regarding salary, position, job duties, and the worksite location. If there is any substantial change to the conditions specified in the H‑1B Visa petition and in the Labor Condition Application (LCA), USCIS and the Department of Labor must be notified. Additionally, employers have the responsibility to keep records of the worker/salaries and to pay a portion of the transportation cost for the employee to return to their home country if the employment is terminated by the employer.

• Pay the employee under the H‑1B Visa the required wage no later than 30 days from their entry into the United States, or 60 days from the date of the H‑1B Visa approval if the employee is already in the United States.
• Offer the same working conditions—number of hours, shifts, vacation, and seniority benefits—to H‑1B employees as to other employees in similar positions, consistent with the conditions in the Labor Condition Application (LCA) and the H‑1B Visa petition.
• Keep a copy of the Labor Condition Application (LCA) and the appropriate wage and employment documentation that supports the information submitted in that application. This information must also be provided if requested by the U.S. Department of Labor or U.S. Citizenship and Immigration Services (USCIS).
• If the employee under the H‑1B Visa is dismissed for any reason before their work authorization in the United States expires, the employer is responsible for the reasonable cost of transportation for the foreign worker to return to their last place of residence.
• The employer is prohibited from charging an H‑1B employee who is dismissed any penalty or fine for leaving the job before any date stipulated in an agreement or contract.

There are additional requirements for job vacancy postings (or attestations) imposed on employers who depend on H‑1B workers. The Immigration and Nationality Act determines that an employer depends on H‑1B employees if:

• The employer has a total of 1 to 25 full‑time employees (or equivalent), and 7 or more H‑1B employees
• The employer has a total of 25 to 50 full‑time employees (or equivalent), and 12 or more H‑1B employees
• The employer has a total of 51 or more full‑time employees (or equivalent), and 15% or more of its employees are H‑1B workers.

Note: H‑1B employees who have at least a master’s degree or earn US $60,000 or more exempt their employers from these additional requirements or attestations for job vacancy postings.

11. How many employees can an employer have with H-1b Visas?

There is no numerical limitation in this regard. However, if a significant percentage of employees hold H‑1B Visas, the Department of Labor may categorize the employer as H‑1B‑dependent and impose additional restrictions on their ability to apply for more 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?

Documentation Needed from Petitioner/Employer Sponsoring the H-1B visa:

• A detailed job description outlining duties and responsibilities and minimum experience and education required for the position, that establish a requirement for a bachelors’ degree or greater to perform the job.
• Employment offer letter including position and salary.
• Copy of tax records or similar financial records  that demonstrate the ability to pay the employee the prevailing wage for the job
• Employer Address, telephone, fax numbers, and email addresses of company officers involved in the H-1B petition
• Employer Tax ID number
• Name and title of direct supervisor
• Description of the employer’s business and the business date of inception
• Copy of Company’s Articles of Organization issued by the state government
• Number of current employees at sponsoring company
• Number of current employees with H-1B visas at sponsoring company
• Copy of relevant marketing material describing the employer and its business

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

14. What is my immigration status while my first H-1b Visa application is pending?

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

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.?

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

H‑1B visas cannot be granted for more than 3 years, but they are renewable up to a maximum of 6 years. However, the time spent outside the United States, or time not working during an H‑1B Visa transfer, does not count toward these 6 years. Also, if an application for permanent residence and/or a labor certification petition was initiated before the first day of your 6‑year period, under AC21 law, you may qualify for a 7th‑year extension that can be renewed multiple times.

18. How many times can I renew my H-1b Visa?

Generally, an H‑1B Visa may be renewed as many times as necessary until the person completes the 6 years allowed under H‑1B Visa law. This person may be eligible for additional extensions under AC21 law if all requirements are met (i.e., an LCA/PERM process must have been initiated).

19. How many times can I change employers under my H-1b Visa status?

There is no numerical limitation on the number of H‑1B Visa transfers a person may apply for. However, there are validity periods. For example, the initial validity period of an H‑1B Visa is 6 years. After this, an individual may leave the United States for a period of time and, upon returning, begin a new 6‑year period, or alternatively, a person may be eligible to extend the 6‑year period under AC21 law if all requirements are met (i.e., an LCA/PERM process must have been initiated).

20. I am about to enter the 6th year on my H-1b Visa, how can I extend my status?

21. Who is eligible for a seventh year H-1b Visa extension?

An individual in H‑1B status who has filed an application for permanent residence (I‑140) or an LCA/PERM before the first day of their sixth year in H‑1B status, and whose application is pending or approved, is eligible to extend their visa into a seventh year under AC21 law. Please note that calculating the date on which the sixth year of your H‑1B status begins requires careful review, as it involves several factors (see previous question). It is also important to note that the sponsoring employer must be committed to continuing with the permanent residence process.

22. Can I change employers if I am on my 7th year H-1b Visa extension?

It is possible to change employers while in the seventh year or in the extension of the H‑1B Visa. Visas extended for a seventh year are transferable under the same conditions as H‑1B Visas without extension. It must be noted that all seventh‑year extensions require that the petitioning employer who filed the LCA/PERM application or the I‑140 continue as the sponsor of the permanent residence 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?