MENU

H-1B Visa FAQ’s

H-1B FAQ’S (FREQUENTLY ASKED QUESTIONS):

Q:  How long does it take for the H-1B Petition to get approved?
A: Government processing times for the U.S. Citizenship & Immigration Services vary however we have often seen cases processed within 4-6 months under standard processing times.

Q: Is there any way to expedite the processing of the H-1B visa petition?
A: Yes, you have the option file the case under Premium Processing. This requires an additional filing fee of $1,225 and file Form I-907, either with the original filing or while the petition is pending. USCIS will approve or deny the petition or request additional evidence within 15 calendar days. If USCIS requests additional evidence, a new 15-day clock begins from the time USCIS receives your response.

Q: My Cap Subject petition was approved under Premium Processing, how soon can I start working on H-1B status?
A: All cap subject petitions will have an employment start date of October 1st as this is the first day of the fiscal year for the U.S. Citizenship & Immigration Services. Even though you may have an approval in hand before this date you are not able to begin work in H1-B status until October 1st.

Q: I was sponsored for my H-1B by my previous employer but transferred to a new employer. Things aren’t working out. I go back to my original employer if my H-1B for that company is still valid?
A: Yes, but we recommend you discuss the matter with an immigration attorney as there could be other issues involved.

Q: My H-1B Visa Expired, do I have to file for H-1B Extension?
A: It is very important to understand the different documents associated with a non immigrant visa status such as H-1B. If it is in fact the case the just the visa stamp located in the passport is expired, but the I-94 is still valid, then no, you do not have to file for an extension of H-1B status.

However if your I-94 validity is soon to expire or already expired then you should contact an immigration attorney immediately to discuss available options. In addition it would be wise to work with an experienced immigration attorney to ensure that the best documentation is provided if an extension is required.

Your case and its accuracy matter to us. We can assure that all cases processed through our firm receive multiple reviews for legal accuracy and assurance. Our experienced immigration attorney reviews each and every case before it leaves our office. These checks and balances provide for a faster, more efficient method of preparing your case and leaves less room for error. We proudly support clients in Irvine, Anaheim, Aliso Viejo, Fullerton, Lake Forest, Laguna Niguel, Foothill Ranch, Santa Ana, Tustin, and Cypress.

Q: I applied under H-1B Cap and was approved, can I start working?
A: Congratulations! You have made it into the H-1B Cap. Whether you are consular processing(which means your immigration petition was filed and you are located outside of the U.S.) or you are filing for a Change of Status (you are present in the U.S. and have maintained valid status until October 1st Start date) you are now no longer subject to the cap. All cap subject H-1B’s will always have an October 1st start date as that is the first day of the fiscal year.

There are many options available to H1-B holders with regards to their status. At any time after they are approved and begin working they can apply for a transfer (change of employer) if they find a new company willing to sponsor them, they can amend the conditions of their employment if there is a significant material change, or they can extend their employment if their H-1B time is soon to expire.

Our immigration attorney specializes in all kinds of H-1B visas including cap subject petitions, cap exempt petitions, change of employers (transfers), change of status (L-1 to H1-B), amendments, and concurrent employment (where an individual is employed by more than 1 sponsor).

Q: Who can an H-1B visa holder work for?
A: H-1B visa holders may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the work site of another employer if all applicable rules (e.g., Department of Labor rules) are followed.

H-1B visa holders may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer. For more information regarding concurrent employment please contact our office for a free consultation.

Q: What if the H-1B visa holder’s employment changes?
A: As long as the H-1B visa holder continues to provide H-1B services for a U.S. employer,most changes will not mean that he/she is out of status. An H-1B visa holder may change employers without affecting status, but the new employer must first file a new Form I-129 petition for the individual before he or she begins working for the new employer.

The merger or sale of an H-1B employer’s business will not affect the H-1B visa holder’s status in many instances. However, if the change means that the H-1B visa holder is working in a capacity other than the specialty occupation for which they were petitioned for, it is a status violation.

Q: Am I allowed to take leave as an H-1B holder?
A: As long as the employer/employee relationship exists, an H-1B visa holder is still in status.An H-1B visa holder may work in full or part-time employment and remain in status. An H-1B visa holder may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Q: Can I travel outside the U.S. if I’m on an H-1B visa?
A: Yes. An H-1B visa allows an individual holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Q: Do I need a new H-1B visa stamp every time I travel abroad?
A: Not necessarily. If the visa Stamp is unexpired and in the same nonimmigrant classification(H-1B), no new visa stamp is required. The visa remains valid during its validity period regardless of a change in employer. The Department of State discourages new visa applications unless the old visa stamp is within 60 days of expiration.

USCIS Associate Director for Domestic Operations Michael Aytes clarified in a memo that when nonimmigrants in L, O, or P classifications who change employers remain in the same nonimmigrant classification and have and unexpired visa stamp, they also can travel abroad using the prior visa stamp.

Q: My current H1B visa is expired. Do I have to apply for a new H-1B visa if I travel abroad?
A: The foreign national should wait for the approval of the new I-129 petition and apply for anew H-1B visa stamp at a U.S. consulate abroad before re-entering. If travel is imminent, consider using premium processing to expedite the adjudication of the I-129.

To obtain a new visa stamp, the foreign national needs to submit the original I-797 petition approval notice with Form DS-156, Form DS-157 (If needed), a current passport, the required fees, and other documents as required by the particular consulate. It is important to consult with your immigration attorney prior to any international trips as they will be able to provide you with further guidance regarding your consular visit.

Q: Does a F-1 student travelling outside of the U.S. have to apply for H-1B visa to re-enter?
A: According to a U.S. Department of Justice memo, the H-1B petition should be adjudicated and, if approved, the foreign national would have to apply for a visa at a U.S. consulate abroad because the change of status will be deemed abandoned.

Q: How does an H-1B non-immigrant change or add an employer?
A: One of the easiest ways for an H-1B visa holder to run into trouble with his or her visa statusis to fail to comply with immigration regulations when switching employers or changing the terms of his or her employment.

The most difficult problems are often created when someone changes jobs without taking care of immigration issues. In fields like computer programming or physical therapy, it is not unusual for an individual to move frequently from employer to employer. But for an H-1B visa holder, each change can present challenges.

The first basic rule to note is that an H-1B is employer specific. In other words, it is only valid for the petitioning employer and only entitles the recipient to work for the employer approved by USCIS. That means that each time a worker moves to a new employer, a new H-1B approval is required.

It is possible to apply for a change of employers without having to leave the U.S. and get a new visa stamp. However, it is important to remember that the process involved will be pretty similar to getting an H-1B visa from scratch.

At one time, it was thought that changing H-1B employers meant that a new visa stamp would be needed the next time someone leaves and reenters the U.S. after a change of status in the U.S. USCIS and the State Department now make it clear that as long as the visa is not expired, the applicant remains in H-1B classification.

Note that someone who has changed from another visa classification to H-1B status while in the U.S. (such as F-1 status to H-1B status) that has never had a visa stamp will still need to get an H-1B visa at a consulate.

Q: What is ‘H-1B Portability’?
A: In October 2000, former President Clinton signed the American Competitiveness in theTwenty-First Century Act (AC21). One of the most sought after provisions in AC21 is the “portability” provision, which eases the process of changing jobs. Under it, H-1B workers can begin working for a new employer as soon as the new employer files an H-1B petition for the worker.

Regulations define “filing” as having been physically received by USCIS. Because this provision applies to petitions for new employment filed before or after the enactment of AC21, workers for whom a new petition was filed can begin work for the new employer immediately upon USCIS receiving the H-1B petition.

The primary limitation on this portability provision is that the new employer must have filed a “non-frivolous” petition, which is one with some basis in law and fact. To take advantage of the portability provision, the worker must be in the U.S. pursuant to a lawful admission and must not have engaged in unauthorized employment since that admission.

The portability provision has created concern among employers about how they will comply with I-9 requirements, which obligate employers to ensure that all employees are legally authorized to work in the US. While the worker who begins working for a new employer after the filing of a new petition is work authorized, the I-9 form contains no provision for such a situation.

Employers in this situation should follow current documentation procedures, as well as keeping a copy of the worker’s I-94 and a copy of the receipt notice for the new H-1B petition.

Q: Am I subject to the H-1B cap again if I am changing employers?
A: USCIS has stated that the limit on the number of H-1B visas does not apply in this situation.If you have applied for an H-1B visa and were cap subject within the past 6 years it is important you contact a qualified immigration attorney.

Certain individuals may be eligible for a change of employer even if they have never worked for the petitioner or traveled to the U.S. Also, if one works for a cap-exempt employer and then switches to an employer that is not exempt from the cap, the cap will apply.

In the case of a concurrent filing of an H-1B petition where a person is working for an exempt employer and then seeks additional employment with a non-exempt employer, the cap will not apply to the second position.

Q: Can an H-1B change employers and then decide to go back to the first H-1B employer?
A: The news here is good. The H-1B petition continues to remain valid until it expires or until the employer has it revoked. USCIS takes the position that if neither of the above has occurred, then one can resume work for the first employer without filing a new petition or amendment.

Q: Can multiple employers file H-1Bs for the same worker?
A: Let’s say that two employers successfully file an H-1B petition and the worker enters to work for Company 1. After coming here, the worker decides to go work for Company 2 instead.

Even if the worker never worked before for Company 2, the worker can switch to Company 2 without the need for a new petition. As noted above, a revocation of the petition by Company 2 or the expiration of the visa approval period for Company 2 would mean a new petition is required.

Q: Can an H-1B visa holder accept a job with a second employer without giving up the first H-1B position?
A: There is no legal reason why this cannot take place. An H-1B worker can work for several employers simultaneously if desired. However, each employer must have a separate approval for the worker to work there. Also, USCIS does not recognize “co-employer” arrangements, so if this is the case either one employer must designate itself as the petitioner, or each employer must file a separate petition.

There are many times when a change in the nature of one’s employment will trigger the need to file either an amendment to an H-1B petition or a completely new petition. USCIS’s position is that if the change in employment is “material” then an amendment must be filed.

So, for example, if there is a significant change in job duties, then a new petition will probably be necessary. Also, being transferred to a different legal entity within the same corporation would trigger an amendment. Also, in certain cases, changing job locations could require an amendment.

Mere changes in job titles without a serious change in job duties will probably not require an amendment. The same holds true for raises in salary unless the change is so great that USCIS presumes that the position is really a new one.

Note that changes in the corporate structure of a company could mean that a new H-1B petition must be filed. The general rule is that if a new legal entity is created, a new petition is required. This would be the case, for example, if a company is sold and the new company dissolves the old company without assuming its liabilities.

A merger that results in the creation of a new company might also mean that new petitions should be filed. If the new company is what in corporate law is called a “successor in interest” then a new petition is normally not necessary. Changes in a company’s name will not trigger the need for an amendment or new petition, but an amendment is useful in order to avoid confusion when the worker reenters the U.S. after travel abroad.

Q: Can an H-1B visa holder apply for their Green Card?
A: Yes. An H-1B visa holder can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without adversely affecting his or her H-1B status. This is known as “dual intent” and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an individual may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from USCIS to return to the U.S.

Q: I was on an F-1 Student visa and am now working under OPT. My OPT expires in June. Do I have to leave the country between June and my October 1st start date in H-1B?
A: No. You may remain in the U.S. and continue working if your OPT was valid at the time of filing your H-1B petition. You are covered under the Cap-Gap provisions.

Q: I am on OPT but it expires before the April 1st filing date. Do I have to leave?
A: In this situation I would highly recommend consulting an immigration attorney family with business immigration procedures. In certain situations you may be eligible to extend your OPT, change to an alternative visa status, or remain in the U.S. but not be eligible to work. There are many different options which is why it’s best to work with a qualified immigration lawyer who can present you with the various avenues of business immigration.

Global Law Centers offers elite legal staff who are experts in immigration law for businesses, and corporations throughout the Orange County and Southern California areas. We proudly serve professional organizations throughout Orange County including Irvine, Anaheim, Aliso Viejo, Orange, Tustin and Santa Ana. We offer free consultation to corporate inquires as well as personal inquiries for business immigration.