H-1B Visa: Suitable for specialty foreign professional workers
What is a specialty occupation for the purpose of the H-1B Visa?
A Specialty Occupation is a high-level job that requires a specific college degree, or its equivalent. Examples include engineering, architecture and computer software programming.
The “equivalent” to a bachelor’s degree is determined on an individual basis, so there is no hard fast definition. However, a 4-year university education acquired after 4 years of high school in another country is usually accepted. Another commonly accepted credential is an equivalent work experience commonly referred to as the 3 for 1 rule. Each year a candidate lacks in formal university education, he may usually substitute 3 years of work experience in acquiring the equivalent to a 4 year university education.
An applicant is eligible for an H-1B visa if he is offered a high-level job that calls upon the education and experience he has.
Both the job and the applicant must qualify: Plumbing, hairdressing, administrative assistance and painting are examples of jobs that cannot be considered Specialty Occupations, even if the applicant has a college degree. (Because these jobs typically do not require a specific 4-year degree.)
The degree must fit the job offer: An applicant with a degree and experience only in accounting cannot get a job in computer programming.
-An applicant with a liberal studies degree will not qualify for an architectural job, unless she also has several years of professional experience working as an architect.
-To achieve Specialty Occupation status, the Department of Labor must agree that the job requires a specific education, and that the applicant is fit for that job. (Employer files for this Labor Condition Application before the H-1B visa petition is filed).
What kinds of H-1B petitions are not subject to “quota”?
a. Petitions for H-1B status extensions;
b. H-1B petitions sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government, or nonprofit research organizations;
c. H-1B petitions for concurrent employment where the alien worker is presently in H-1B status which is subject to H-1B quota;
d. H-1B petitions to change employers where the current H-1B is subject to H-1B quota;
e. People who have had H-1B status in the past six years that took up space on the H-1B quota
f. Those seeking H-4 dependent status (spouse or children of H1-B visa holder)
How soon can my prospective employer file an H-1B petition for me after a job offer is extended?
The earliest one can file for H-1B visa/status is 6 months prior to the employment date stated on the petition or six months prior to the expiration date of the current H-1B status the employee holds.
How is the premium processing service affected by the cap?
Premium Processing cases filed before the date that the quota cap is reached will be processed by premium processing, (15 day adjudication time), but will nevertheless be subject to the cap in the same manner that a case not filed under the premium processing program and is not given any other special consideration for the purposes of qualifying under the year’s H-1B quota.
I am currently working for one company with H-1B status and I wish to work for another company concurrently. Will I be subject to the cap restrictions?
No. So long as the H-1B worker iscurrent in his or her H-1B status with a company, and he or she petitions to work for another employer concurrently, they are not subject to the quota.
How long does it take to obtain H-1B status?
The usual processing time for an H-1B petition filed with the USCIS is 60-90 days. However, the alien worker or the sponsoring employer may request “premium processing” by paying a $1,000 premium processing fee. With premium processing, the case will be processed within 15 calendar days or the $1,000 premium processing fee will be refunded.
What is the Prevailing Wage?
It is the minimum wage based on the level of education and experience required for the position as determined by the US Department of Labor based on statistical surveys that an employer will be required to pay the H-1B worker without violating the regulations. Please note that this is not a minimum wage based on the particular qualifications of the individual being petitioned for the job, but rather it is based a standard salary based on the minimum qualifications for the position.
If I hold an undergraduate degree or an associate’s degree can my work experience replace the required college education?
Yes, work experience can be substituted for the required degree. If an alien does not meet the educational requirements, degree-equivalent experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education. It is typically required that the candidate get a formal educational evaluation from one of several professional evaluation companies for the H-1B submission.
Can I apply for multiple H-1Bs?
Yes, you can apply for multiple H-1B’s. You are allowed to work for more than one U.S. employer, but must have an H-1B petition filed by each employer for which the foreign worker will be employed.
I am in H-1B status now, and I would like to change jobs. How long does it take to obtain a new H-1B based on a new employer?
If you would like to change jobs, your new prospective employer must file a new H-1B application and pay all applicable fees, similar to the initial H-1B petition filed by your current employer. It generally takes between 60 to 90 days to obtain approval of an H-1B petition submitted by a new employer.
However, current US Immigration legislation authorizes the worker to commence employment on the day that the case is filed with the the USCIS.
How long in advance can I apply for an H-1B Extension of Status prior to the actual employment start date and/or the expiration date of my current H-1B?
An qualified H-1B candidate may apply for H1-B visa/status Extensions six months prior to the commencement of the employment petitioned or prior to the expiration date of his or her current H-1B, but no earlier than six months. For example, if the starting date of your employment as an H-1B holder is 01/01/2008, then you can submit an application for an H-1B Extension as early as 6/30/2007.
How Long in Advance Can I apply to Change my Status to H-1B or to initially acquire an H-1B Visa given the vast shortage under the H-1B quota?
It is important to apply for the visa as early as possible due to the fact that the H-1B quota is currently being used up very quickly. For instance, the H-1B was caped for fiscal year 2008 the very first day USCIS started to accept applications, (April 1). The government fiscal year begins October 1 of every year, and H-1B petitions for each fiscal year are first accepted at USCIS 6 months in advance of every fiscal year, (April 1), and due to the vast shortage of H-1B visa availability, the quota is often exhausted within the first week of April. Therefore, it is absolutely necessary that any H-1B candidate have his or her case on file with the USCIS on the very first day that USCIS begins to accept the petitions. Once accepted by the USCIS, the candidate must wait for an adjudication. If the case is ultimately approved, the candidate will not be authorized to work under the H-1B until after October 1, the first day of the government’s new fiscal year.
When may I legally begin to work for a new employer if my current H-1B was subject to the H-1B Cap in a previous year?
As soon as the new H-1B petition is filed on the H-1B worker’s behalf with the USCIS, he or she may commence employment. However, if the H-1B worker has spent more than one year outside of the United States after the expiration of his current H-1B, he or she will be subject to the new H-1B cap, and will be required to meet the current filing deadlines.
Does my previous employer have to cancel my H-1B?
What documents regarding my first employment do I need to present for a new H-1B petition filed by a new employer (employer transfer)?
When an H-1B worker transfers from one H-1B employer to another, the USCIS will require evidence that the H-1B worker has maintained proper H-1B status up and until the date of filing the new H-1B petition by continuously working for the previous employer and earning the proper minimum Prevailing Wage. Evidence used to prove such maintenance of status usually includes recent paycheck stubs and possibly an employment verification letter.
My H-1B employment with Employer A was terminated and I converted to H-4 (spouse/children of H-1B holder) status. Now, another employer has issued me a job offer and has applied for an H-1B on my behalf. May I begin working for Employer B without waiting for H-1B approval?
Yes, if your first H-1B with Employer A was within past 6 years and was subject to a previous year’s H-1B quota, the H-1B worker may begin his or her new employment immediately upon filing of the new H-1B. If the first H-1B exempted from a previous H-1B quota by way of one of the H-1B cap exemptions mentioned above, and the new employer B is not an exempted company itself, the H-1B worker cannot begin working for Employer B until the H-1B petition is filed and approved under the current H-1B quota.
How do I know my H-1B transfer has been filed with the USCIS?
An H-1B transfer receipt received from the USCIS is confirmation that your H-1B transfer was successfully filed with the USCIS. However, such confirmations are not received until usually several weeks after the actual date of filing. A certified return receipt of an H-1B transfer issued by any post office branch should also be sufficient evidence that an H-1B transfer was filed. Moreover, a delivery confirmation by an express mail company such as Federal Express may also serve the purpose of confirmation of filing.
I was in H-1B status but am now in F-1 (student) status and would like to apply for an H-1B status. Is the new H-1B for me subject to the H-1B quota cap?
If your previous H-1B was subject to the quota and was filed within the past six years, you are not cap subject. However, if you have been out of the U.S. for more than one year, you are now subject to the current year’s H-1B quota.
As a Current H-1B employee who has been counted against the H-1B quota, what do I need to know about the “portability rule”?
A current H-1B employee, already counted against the H-1B quota in the past six years, may start to work for a new employer upon the filing of a new petition by that employer.
I am anticipating that my current employer is going to lay off many H-1B employees, me included. What should I do if I want to stay in the U.S. ?
In anticipation of the coming layoff, you have the following options:
(1). You should actively seek other employment opportunities and get a new employer willing to file a new H-1B petition for you before you are laid off by your current employer. Bear in mind that a part time job also qualifies for petitioning for H-1B.
(2). If you decide to go back to school, you should start the application process as early as possible to get an I-20 before being laid off. This will enable you to quickly change to F-1 student status. Bear in mind that many community colleges can issue I-20s on the same day when the application is filed, provided all requirements are met. This offers a temporary choice for H-1B holders to keep lawful status in the U.S. after being laid off.
(3). Aliens with dependent spouses should encourage their spouses to seek job opportunities or to apply for academic programs, and to get independent status, (i.e., H-1B or F-1), so that they may change their status to be dependent on their spouses’ (H-4, or F-2) after being laid off.
(4). Those who have a relatively strong research background might be able to qualify for permanent residency under EB-1 and/or EB-2 NIW. During the pending period of their petitions, they should try to keep independent non-immigrant status. If that’s not possible, then we suggest that they consult with experienced attorneys regarding filing I-140 and I-485 concurrently, which gives them valid I-485 pending status. Please be aware that the concurrent filing option may not be available for nationals of India, China and perhaps other countries because of the visa backlog.
Can H-1B employees take a long unpaid leave for personal reasons/family reasons/maternity reasons while still remaining a valid H-1B status?
Yes, H1-B employees may take long unpaid leave without having their status affected. Keep in mind that if leave is taken, one will not be paid.
Furthermore, the employers may terminate employment at any time for any or no reason at all. If employment is terminated, the alien is out of H-1B status immediately. Contrary to a popular belief, there is no so-called “ten-day grace period.” However, as a rule of thumb in practice, an H-1B employee who is out of status for less than ten days would have a reasonable likelihood of having this out of status period disregarded by the USCIS. As a result, upon termination by the prior employer, the alien must file for a change of status as soon as possible.
I am in H-1B status now but have been laid off by my employer. How long is the grace period that allows me to keep legal status?
There is no grace period from the date that you are fired or laid off. In other words, the H-1B worker must file for change of status before the date of termination or resignation of employment . If you fail to do so, you may be out of status on the termination date. However, practically speaking, USCIS would likely disregard any out-of-status period of less than 10 days and they are left with the discretion to disregard even longer periods of time.
What Option do I have if I am spend significant time out of status:
If the H-1B worker resigns or is terminated from his or her job, but has not
Spent more than 180 days in unlawful status, he or she may acquire a new H-1B visa through a second employer via H-1B Consular Processing.
What is H-1B Consular Processing?
When an individual does not qualify to Change Status within the United States, it is said to mean that the individual is not eligible to acquire H-1B status while remaingin physically within the United States. He or she therefore must go to the foreign consulate of his or her home country for consulate inspection. At the consulate, if approved, he or she will be issued a new H-1B Visa under the new employer’s name as the Petitioner to return to the United States and legally work for the Petitioning company.
I am in H-1B status now. If I am laid off, what must I do if I want to remain in the U.S. ?
You may need to change to another non-immigrant status, such as an F-1, F-2, or H-4 status as soon as possible. As long as you file your change of status application in time, you will be allowed to remain in the U.S. while your case is pending.
While my H-1B is pending, may I legally work for my employer?
If you have never been in H-1B status before and you do not have another permit to work (such as OPT or EAD), you cannot work until the H-1B is approved.
I am in Student status and my employer submited the H-1B petition for me before the expiry date of my current Optional Practical Training status (“OPT”). My OPT status has now expired but I still have not heard anything from USCIS regarding my petition. Am I legally present in the United States during the pending phase of the adjudication?
It depends on whether the H-1B quota was immediately available when the H-1B candidate’s OPT status expired. If the H-1B quota was open at the time or before the OPT expiration date and the starting date on the H-1B application is on or before the date of the OPT status expiration, the H-1B Benficiary may remain in the U.S. legally. Otherwise, he or she will be out of status and will be required to “Consular Process”.
How can one resume H-1B status as if it were a brand new H-1B with another 6 year period?
The individual must depart from the U.S. for at least one year before qualifying again for H-1B status with another 6-year period. After the individual has departed from the US, s/he must undergo the same application process that was necessary for his/her first H-1B visa. This includes securing an employment offer, submitting a petition for H-1B, getting approval of the petition, and applying for a visa with the US consulate in the country they are residing in.
For Example: Employee, a foreign born professional worker, has reached the limit on the number of years he or she can remain in the United States in H-1B status, but he or she wishes to work in the US for another 6 years. The Beneficiary therefore returns to their home country for one year. After receiving an employment offer, the employer must submit and H-1B petition, after which the Beneficiary can apply for a visa with the US consulate in his or her country of citizenship. Upon approval of the H-1B petition with the USCIS and the subsequent Visa application at the consulate of the Beneficiary’s home country, the Beneficiary may return to the US for up to 6 more years.
Is there a relationship between applying for an H-1B and applying for an immigrant petition (Green Card petition)?
No, each is independent of the other. You may apply for a Green Card with or without an H-1B. However, due to the lengthy backlogs of the immigrant visa quotas, the procedure to acquire an immigrant visa via the employment based preference categories takes a significantly long time in most cases. For that reason, if the Beneficiary is presently in the United States during the processing of the immigrant visa petition, The Beneficiary must maintain legal non-immigrant status (which in many cases is H-1B) during much of the pending stages of the case.
May I submit an employment-based immigration petition before I obtain an H-1B?
Yes. An employment-based immigration petition does not require an H-1B petition. In fact, in many cases it is advisable to get a head start on the immigrant visa filing process before even acquiring H-1B status. Nevertheless, for the reasons stated above, it will become necessary for an individual to maintain legal nonimmigrant status if he or she chooses to remain in the United States during the processing phase of the immigrant petition.
May I obtain an H-1B if I have filed an immigration petition? Does an immigration petition affect my H-1B application?
An H-1B is said to be a “Dual Intent” visa status: both non-immigrant and immigrant intent is permissible, and therefore a Beneficiary who applies for an H-1b Visa at any foreign consulate is not required to provide evidence of his or her intent to return to his or her home country before being issued the visa. Thus, the filing of an immigration petition, either an I-130 or an I-140, has no affect the status of an H-1B application.
Does the Green Card petition sponsoring employer have to be the same employer as the one sponsoring my H-1B?
Should my H-1B title and salary match my Labor Certification application?
Not necessarily, since both petitions are filed independently. Your H-1B petition may be based on a salary at a bachelor’s degree level while your labor certification may be based on a master’s degree education level.
I am currently in B-1 status. May I obtain H-1B status?
Yes, if the candidate satisfies the requirements for an H-1B visa and there are H-1B visas available via the H-1B Visa quota, one could potentially switch from B-1 to H-1B status without the necessity of H-1B Consular Processing.
I am in F-1 status and am not using my practical training period. May I obtain H-1B status?
Yes, if you satisfy the requirements for an H-1B. A practical training period is not necessarily a prerequisite to obtaining H-1B status. However, given the timing of the H-1b Visa quota, it is nevertheless usually more advantageous to acquire Optional Practical Training first.
I am in J-1 (exchange visitor) status. May I obtain H-1B status?
Yes, one may obtain an H-1B if he or she qualifies based on all of the requirements for an H-1B, provided that the individual was not previously already subjected to the two-year Home Residency Requirement.
I am currently in J-1 (exchange visitor) status and subject to the two-year residence requirement. I do not have a waiver but would like to obtain an H-1B. What should I do?
It is advisable that a candidate with J-1 Status and also subjected to the 2 Year Home Residence Requirement consult with an experienced immigration attorney who may be able to petition.the individual for a waiver of such requirement withint he time required to file a petition within the time periods of the H-1B quota.
Is the size of my company a factor in my H-1B petition?
No, the size of the company sponsoring an H-1B is not necessarily a factor in determining whether the company can file an H-1B petition. The primary considerations at work with an H-1B petition is whether or not the company has a legitimate need for someone with the specific educational background specified in the petition and whether or not the company has te financial resources to pay the Prevailing Wage assigned to the position.
How do you define ‘financial resources’? Is the company required to meet certain profit levels in order to be eligible to sponsor an H-1B petition?
No, the company does not need to be profitable in order to sponsor H-1B petitions so long as they have the cash flow or equity reserve to pay their employees.
If my employer petitions for an H-1B on my behalf, what should my spouse and children do?
The spouse and children of an H-1B Beneficiary will be authorized to apply for H-4 status asimultaneously with the H-1B petition if the Beneficiary’s family is currently residing in the U.S. If the family is currently ourside of the United States, they will be required to secure a visa at the U.S. consulate based on the approval issued to the Principal Beneficiary.
May I change from an H-1 status to an F-1 (student) status?
Yes, you may file a request for change of status with the USCIS after obtaining a complete Form I-20 from a USCIS approved school. Please note, however, that in deciding whether to approve or deny the request, a determination will be made by USCIS if the candidate has non-immigrant intent because unlike the H-1B Visa, the Student Visa does not allow for immigrant intent. It is a nonimmigrant status that carries with it a legal presumption that the individual has the intent to return to his home country after the completion of his studies.
My spouse is currently in H-1B status. May I change my status from H-1B to H-4?
I am currently living in the US in H-1B status and want to travel abroad. Can I obtain an H-1B visa to come back to the US while my green card application is still pending?
Yes. By law, an H-1B visa allows “Dual Intent”. Therefore, one remains eligible for an H-1B visa for reentry even if the PERM Labor Certification, I-140 Immigrant Petition, or the I-485 Adjustment of Status is still pending. In other words, your application of PERM, I-140 or I-485 should not be an issue when you apply for an H-1B visa in a US consulate abroad. As a caveat, however, there are always risks involved when traveling back to the home country for visits. Alternatively, if the individual already has an I-485 Adjustment of Status petition currently pending, he or she may petition for an Advance Parole for travel. Advance Parole allows for individuals with pending immigrant visa petitions to travel in and out of the country without any requirement to seek visas at a foreign consulate.
I am in H-1B status. Can I own a company? Can a foreign national own a company and file an H-1B petition for her own benefit?
Yes, an alien can own a company in the U.S. You do not need to be a US citizen or legal permanent resident to own a business in the US.
However, to work for the company that is owned by the foreign national requires that he or she acquire the legal right to do so via an appropriate non-immigrant petition.
I am currently in OPT (optional practical training) and received a part time job offer from a prospective employer. May I apply for a part-time H-1B visa?
Yes, provided the candidate satisfies all other H-1B requirements.
I am currently in H-1B status but was recently fired. May I change my status to B-2 (tourist) to remain legally in the U.S ?
USCIS officers have been allowed to exercise their discretion to grant a Change of Non-immigrant status if it is applied for within a reasonable time after termination. However, it is a discretionary standard and therefore, it would be advisable to seek the assistance of an experience immigration attorney.
I have an H-1B from my previous employer, who did not cancel the H-1B after I quit my job and started to work for another employer under a new H-1B filed by the new employer. Can I go back to work for my previous employer without filing an H-1B again?
I was laid off by my employer, but the expiration date of my H-1B status (as stated on my I-94 card) is dated next year. Am I still in valid H-1B status?
No. Your H-1B status is tied with your employment. Thus, after termination or willful resignation, one is no longer in valid H-1B status, even though the I-94 may still reflect an expiration date that has not yet reached expiration.
I am an H-1B holder. What if I still stay in the U.S. after being laid off by my employer? Are there any negative consequences?
If one remains in the U.S. after being terminated from his or employment, any future application for Change of Status or Extension of Stay or for Adjustment of Status risks denial for that reason. The longer one remains in the United States in unlawful status, the less chance at receiving a favorable outcome for a Change of Status or Extension of Stay petition, and the individual will likely be forced to Consular Process.
I have been out of status since being terminated by my H-1B employer, can I still use H-1B Consular Processing to get a new H-1B through a new employer?
There are risks with Consular Processing after having already spent time in the United states in unlawful status. It is highly recommended for the individual to consult with a trained immigration lawyer to learn about any potential risks with Consular Processing after having already spent time in the United States unlawfully.
I have already filed for an I-485 (adjustment of status). Do I still need to keep my H-1B status?
Some prefer to apply for an Employment Authorization Document (“EAD”) while having filed an Adjustment of Status case, and others choose to continue to maintain H-1B status while also having an Adjustment of Status petition on file. If the Adjustment of Status petition is for some reason denied, the Beneficiary is immediately considered to be in unlawful status if he or she does not also have a current H-1B under which he or she may legally be employed.
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