H1B Working Visa

Frequently Asked Questions & Answers

11. What do you mean by 'H-1B dependent employer'?

An employer runs the risk of becoming an ‘H-1B dependent employer’ if he hires too many H-1B employees. Employers are considered to be H-1B dependent if they fall into any one of the following three categories:

  1. An employer has 25 or fewer full time employees of which more than seven are H-1B employees
  2. An employer has between 26 to 50 full time employees of which more than 12 are H-1B employees
  3. An employer has more than 50 full time employees of which 15% or more are H-1B employees

12. When should I file my H-1B petition if I am currently under optional practical training on F-1 visa?

You may file for H-1B status while in your practical training itself. Getting an H-1B takes a lot of time and sometimes you might have to wait if your OPT expires before you resume employment. If you file your H-1B petition while in the practical training, you shouldl have your H-1B ready by the time you are out of training. If the H-1B petition is filed before the expiry of F-1 or B-2, you will not be out of status. If your OPT expires before the H-1B is approved, you cannot legally work until the H-1B is approved. However there are special ‘cap gap’ rules that apply to F-1 students whose H-1B petition was filed before their OPT expired.

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13. What is the difference between H-1B status and H-1B visa?

An H-1B visa is a nonimmigrant visa issued by a U.S. Embassy or Consulate abroad. H-1B status is a nonimmigrant status issued by the USCIS to foreign nationals already residing in the U.S. or upon entry with an H-1B visa. Legal status allows you to stay legally within the U.S. while a visa allows you to seek entry into the U.S. legally.


14. I have been fired recently while on H-1B status. Can I remain legally in the U.S. by changing status to another nonimmigrant visa category?

Yes, you may apply for Change of Status to another nonimmigrant visa category for which you qualify. USCIS officers have been allowed to exercise their discretion to grant you another nonimmigrant status, if you apply for change of status shortly after your H-1B status is terminated, usally within 10 days after you are fired.

Note: If you are not planning to depart the U.S. the only way to maintain legal status is to file a new petition under a new employer or change status from H-1B to other nonimmigrant status, such as B-1 or B-2.


15. What is the new 'displacement' or 'no lay-off' attestation rule?

There are two new ‘displacement’ attestations that apply to H-1B dependent employers:

1.The first requires the employer to attest that he did not displace and will not displace a U.S. worker employed by the employer within the period beginning 90 days before and ending 90 days after the filing of the H-1B petition based on the Labor Condition Application

2. The second requires the employer to attest that he will not place the H-1B worker with another employer where:

a.The H-1B worker performs duties in whole or in part at one or more worksites owned, operated and controlled by the other employer

b.There are employment relationships with the other employer, unless the petitioning employer has inquired of the other employer and has no knowledge that the other employer has displaced or intends to displace another U.S. worker