H1B Visas:

Introduction

The H1B visa is the most preferred work visa for foreign nationals who wish to live and work in the United States.

Because of its popularity, there are a lot of myths about the H1B visa program. Let’s take a look at these myths and learn the truth behind them.

Reality:

A cap of only 85,000 H1B visas are available every year and once the cap is reached, USCIS will not accept any further petitions. The H1B filing period begins on April 1 of each year for employment that commences on October 1, when USCIS’ fiscal year starts. The filing period closes as soon as USCIS receives sufficient petitions to meet the 85,000 H1B visa cap and will not open again until April 1 of the next year.

Cap-exempt H1B petitions, such as H1B transfers, change of employers and petitions from qualified exempt organizations can be filed at any time during the year.

Myth #1:
H1B visas are available throughout the year.

Reality:

Although there is a 65,000 annual cap on new H1B visas, beginning with each new fiscal year on October 1, there are exemptions from that H1B cap (cap-exempt petitions).

Some of them are:

1. Foreign nationals who are already in the U.S. in H1B status are exempt from the cap if they have already been counted for the cap in a previous year, e.g., foreign nationals in H1B status are exempt from the cap when a new employer files an H1B petition for them.
2. Employers that are nonprofit research organizations, government research organizations, post-secondary educational institutions like universities and colleges (including two-year technical schools) and their non-profit affiliates are exempt.

Employees who work primarily at these entities may also be exempt even though they are actually employed by for-profit companies. For example, physicians who are privately employed but work at university-affiliated hospitals may qualify for cap-exempt H1B status.

3. There is an additional 20,000 H-1Bs for those who hold an advanced degree (master’s degree or higher) from a U.S. educational institution.

Myth #2:
All foreign nationals are subject to the 85,000 H1B Cap.

Reality:

Not necessarily! A bachelor’s degree is only one of the requirements for an H1B visa, however, the job offered to the foreign national must require a bachelor degree in a specific field as a minimum for entry into the position.

Remember, your educational qualification must match the requirements of the job offered to you. For instance, if the normal requirement for an accountant is a bachelor’s degree in accounting, you do not automatically qualify for H1B status if your degree is in marketing.

Myth #3:
I have a bachelor’s degree, so I qualify for an H1B visa.

Reality:

The H1B visa does not require non-immigrant intent, which means that you can have an intention to apply for permanent residence (i.e. Green Card) in the U.S. and still obtain an H1B visa. The H1B visa supports the doctrine of dual intent.

Myth #4:
To qualify for the H1B visa, I have to prove that I intend to return to my home country after my authorized stay in H1B status expires.

Reality:

This is absolutely not true. A U.S. employer of any size may petition for an H1B employee, as long as it is a U.S. entity and has an Employer Identification Number issued by the Internal Revenue Service (IRS).

While smaller companies may have to provide additional financial and business information to establish the need for the proposed position and that they are operational, there is no requirement for a minimum business revenue or employees.

Myth #5:
Only large companies may obtain H1B visas for their employees.

Reality:

U.S. employers are not required to prove that they have attempted to recruit U.S. workers before filing the H1B petition for the foreign national. The only exceptions are H1B ‘dependent employers’. (Generally, employers who have more than 15% of their employees in H1B status).

Myth #6:
The U.S. employer has to prove that it has attempted to recruit U.S. workers through advertising before filing the H1B petition.

Reality:

The answer here depends on your current immigration status in the U.S.

1. If you are already under H1B status and are in the U.S. working for your H1B employer, you can begin working for a new employer as soon as the new company files an H1B transfer petition on your behalf.
2. In other scenarios, you have to wait for the H1B approval before legally starting to work. For instance, if you hold F-1 status and do not have any other work authorization document, you must wait for the H1B approval before you can start working.

Myth #7:
I can start working as soon as my U.S. employer files the H1B petition.

Reality:

Good news! Under current rules, if your H1B petition is filed before your F-1 OPT expires, you may continue working after the OPT expires. If your H1B is approved for an October 1 start date, your OPT will be extended and your status will be changed from F-1 to H1B on October 1. If your H1B is denied after your OPT expires, you must stop working.

Myth #8:
I am in F-1 status with an Optional Practical Training (OPT) work permit that expires on August 1. My employer wants to file an H1B petition for me. This means I have to stop working on August 1 until October 1 when the H1B status kicks in.

My Case Scenario
Eduardo

Eduardo, a national of Brazil, finished his bachelor’s degree in biology in the U.S. while on F-1 student visa and graduated in June 2009. He timely filed for and received Optional Practical Training (OPT) for one year. His position as a laboratory technician in a cancer research lab has worked out very well and his employer wants to keep him. Eduardo’s OPT expires July 26, 2015. His employer files an H1B petition for him on July 1, 2015, for an October 1, 2015 start date, the earliest date an H1B is available for Eduardo. Does Eduardo have to stop working on July 26, 2015 when his OPT expires and return to Brazil until he can start working on October 1?

Since his employer filed an H1B petition for Eduardo before his current F-1 status (with OPT) expired Eduardo qualifies for the ‘cap gap’ rules. The cap gap rules automatically extend his OPT until October 1, allowing him to remain in the US and to continue working until his H1B kicks in.

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Reality:

H1B is employer specific, which means you can only work for the petitioning employer. If you want to also work for another employer, the new employer must file a concurrent H1B petition for you.

Myth #9:
Once I have an H1B visa, I can work for any employer.

Reality:

Absolutely wrong! You can travel in and out of the U.S. freely as long as you have a valid H1B visa stamped in your passport.

Note: If you completed a change of status in the U.S., you need to have the H1B visa stamped in your passport to re-enter the U.S

Myth #10:
I cannot travel outside the United States while I am on H1B.

Reality:

All H1B workers are required to pay the same taxes on income as U.S. workers. They pay the same social security, unemployment and state taxes.

Myth #11:
H1B workers do not have to pay U.S. taxes.

Reality:

Incorrect! The U.S. is an ‘at-will’ employment nation and those on H1B fare no better or worse in this regard as compared to U.S. workers. There is no such thing as guaranteed employment based on an H1B visa. Subject to employment laws, an employer can dismiss an H1B worker at any time during the validity period of the H1B visa.

However, in such a situation, the employer will be responsible for the worker’s reasonable costs of return transportation to his or her home country if the worker chooses to return.

Also, if your employment is terminated, you lose your H1B status unless you have a new employer who files an H1B petition for you before you stop working.

Myth #12:
My employer cannot terminate me from employment as long as my H1B is valid.

Conclusion

If you are an employer and wish to file an H1B petition for your employee, make sure that you are guided only by the realities about H1B visas.

VisaPro attorneys helped clients secure near 100% success with all H1B petitions. We like to help you integrate our success strategies into your H1B filing.

That’s why we’re offering a FREE H1B Filing Consultation.

We’ll talk through your priorities and recommend strategies for your H1B filing based on our prior success. Schedule A Free Consultation Today >>

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