H1B Working Visa

Frequently Asked Questions & Answers

1. What Is H-1B Work Visa?

The H-1B specialty workers visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. and perform services in a prearranged professional job. The job must be in a ‘specialty occupation’ and must require a bachelor’s degree as a minimum for entry into the field.

Note: The H-1B work visa allows an organization with an IRS Tax Number/ Federal Employer Identification Number to employ a foreign national for up to six years.

2. What Is 'Specialty Occupation' For The Purposes of H-1B Visa?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.

Note: Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations. ‘cap gap’ rules that apply to F-1 students whose H-1B petition was filed before their OPT expired.

Check My Eligibility

3. How Do I Qualify For H-1B Visa?

To qualify for H-1B visa, you must:

  1. Demonstrate that you have the ability to work in the specialty occupation that requires the theoretical and practical application of a body of highly specialized knowledge
  2. Be coming to the U.S. to earn money or a livelihood working in a professional capacity, and not for pursuing a hobby, for pass time, giving free advice or humanitarian service
  3. Seek temporary entry into the U.S.
  4. Have a bachelor’s degree or the equivalent in work experience. The USCIS may accept three years of work experience for each year of missing university education. This may be considered the equivalent of a four-year bachelor’s degree

Note: This classification also applies to Government-to-Government research and development, or co-production projects administered by the Department of Defense

4. What Are The Benefits of H-1B Visas?

The benefits of H-1B visa are:

  1. Multiple H-1B visas: In most cases, there are no limits to the number of H-1B visas an individual may have in their lifetime
  2. Green Card: The H-1B professionals may simultaneously seek Lawful Permanent Residency or a Green Card for themselves and for their family
  3. Cost of early dismissal: The employer must agree to pay the foreign national the reasonable cost of transportation to go back to his/her home country if the employer terminates employment prior to the end of the authorized employment period. The foreign national will then go back to his/her home country. Normally, this is not a problem since the foreign national usually desires to stay in the U.S. and changes into another nonimmigrant status
  4. If you change jobs you must reapply for a new visa, under the new position. This does not mean that you have another six years. The H category visa allows you to stay in the country for six years, regardless of whether you changed employers during this period. Those who arrived in the country on H-4 visas, and converted to H-1B status, will have six years from the date they changed to H-1B.

5. What Are The Limitations of H-1B Visas?

The limitations of H-1B visa are:

1. Temporary Duration: Because of the H-1B visa’s temporary nature, individuals who seek H-1B visa must have the intent to remain in the U.S. only temporarily. However, individuals who seek H-1B visas need not maintain a foreign residence and may later petition for Lawful Permanent Residence. If a petition for Lawful Permanent Residence is not made or the petition for Lawful Permanent Residence is denied, the H-1B worker will be required to return to his/her home country at the end of the authorized employment period

2. The H-1B Cap: An annual numerical limit is imposed on the number of H-1B visas issued during a fiscal year. Currently the cap is 65,000. However, the quota only applies to new H-1B applications, and does not apply to H-1B status holders who are seeking extensions or change of employer

6. What is the validity period of H-1B visa?

Generally H-1B visa is granted for three years. It may then be extended for up to an additional three years.

For further extension, the H-1B professional must remain outside the U.S. for at least one year before becoming eligible for another H-1B visa. If the professional acquires permanent residency (Green Card) he/she need not remain outside the country for one year. Certain foreign nationals working on Defense Department projects may remain in H-1B status for 10 years.

There are Limited extensions allowed beyond the six maximum for certain foreign national who have permanent residence applications pending.

7. Can I bring my dependents on H-1B visa?

Yes, you may bring your dependents on H-1B visa. Your spouse and unmarried children under 21 years old are entitled to an H-4 visa and they can stay as long as you maintain valid H-1B status. However, they may not accept employment, but may attend school in the U.S. You may even bring your servants on B-1 visa.

8. How do I apply for H-1B visa?

An individual may not apply for H-1B visa. H-1B status requires a sponsoring U.S. employer. A U.S. employer has to file the H1B petition to employ a foreign professional.

9. How should an employer petition for H-1B visa?

The Forms to be filed for an H-1B petition are:

  1. Form ETA-9035, Labor Condition Attestation, through the iCERT website. Through this application your employer assures the DOL that he/she will provide you with a fair salary and equal benefits, similar to thise which are provided to a U.S. citizen.
  2. Form I-129, Petition for Nonimmigrant Worker, with H Supplement, and supporting documentation including the approved LCA should be filed with the USCIS Regional Service Center having jurisdiction over the city of intended employment. When it is approved, the employer or agent is sent a notice or approval Form I-797 and a copy of it is forwarded to the American Consulate

10. What is the processing time for H-1B visa?

The H1B processing time varies because all cases are different. Generally it takes between three to six months to process an H-1B visa. You must wait at least two weeks after you send in your application for a receipt from the USCIS and another two weeks before you call the USCIS to check the status.

Note: When USCIS officials get your application package, they will send you a receipt showing the date your case was received and the receipt number assigned to it. Use the receipt number to track the status of your application when you call the number listed at the bottom of the receipt notice. you may also check the status of your petition online.

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.

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

16. What are the documents required to apply for H-1B visa outside the U.S.?

The documents required for H1B visa application are:

1. Passport

2. Documents sent by your employer:

a. LCA – Labor Certification Approval

b. Appointment letter by your Employer

c. Tax Returns Papers of the company (if your employer sends them)

d. Copy of letter to the Department of Justice

e. Copy of letter to the Consular General of the Indian consulate

f. Copy of the official evaluation of your degrees (if your employer sends it)

3. Your certificates:

a. PG certificate (if applicable)

b. Appointment letter by your Employer

c. Appointment and Relieving certificates for all the companies where you claim employment or Service certificates from the company giving dates and duration of your service

4. Dates of any prior stays in the U.S. in H-1B status
5. Very short description of job duties with the sponsoring U.S. Company
6. If occupation requires licensure in the U.S., copy of current U.S. license or temporary license
7. A copy of your resume, any additional diploma or supporting certificates, just for good measure
8. Two Demand Drafts made in favor of the name specified – one for Processing Fee ($45)* and the other for Issuance Fee ($100)
9. Two/three passport size color photographs

10. If processing H-4 Visas for dependent family members, copies of biographic and visa pages for all family members:

a. Copies of children’s birth certificates

b. Copy of marriage certificate

17. What are the documents required to apply for H-1B status when already in the U.S.?

The documents required to process an H-1B petition while in the U.S. are:

  1. Copy of the biographic and visa pages of current passport
  2. Present U.S. address
  3. Foreign address (may be address of parents or closest relative)
  4. Day and evening phone numbers and/or e-mail address
  5. Copy of Form I-94 card
  6. Copy of all prior H-1B approval notices (if currently on F-1 status, copy of Form I-20)
  7. Dates of any prior stays in the U.S. in H-1B status
  8. Current resume listing employment history
  9. Copy of your university or college degree, and if available, copy of university or college transcripts
  10. If you have ever obtained a credentials evaluation, a copy of the credentials evaluation
  11. Title with the sponsoring U.S. Company
  12. Very detailed description of job duties with the sponsoring U.S. Company
  13. If occupation requires licensure, copy of current license or temporary license
  14. Copy of most recent W2
  15. Copy of most recent pay slip with current employer

18. What factors determine the prevailing wage for an H-1B beneficiary?

Relevant factors in determining prevailing wage include:

  1. Job title
  2. Educational and work experience requirements
  3. Job duties
  4. Job location
  5. Labor contract terms

19. What is the checklist for employers of H-1B applicants?

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

  1. Copy of employment agreement, if any
  2. Salary of the foreign worker
  3. Full corporate name and address
  4. Address where the foreign professional will be working
  5. Name, title, phone number, fax number, e-mail address of company contact who will sign the petition
  6. H1B visa employer’s federal I.D. tax number
  7. Gross and net annual income for the employer for the most recent year for which such figures are available
  8. Current number of employees
  9. Year the company was established
  10. Company brochure or other relevant company literature, if available
  11. Number of H-1B workers on staff
  12. Title and a detailed description of the position, including responsibilities and duties

20. What is the difference between my H-1B visa and H-1B Status?

Being granted H-1B status and getting your visa stamped are two different things that are often confused. Getting H-1B approval implies that you are authorized to work in the U.S. and getting visa stamped implies that a visa had been affixed to your passport that authorized to seek entry to the U.S.

Usually H-1B authorizations are issued for a period of three years and the date stamped on your passport would be close to this period.

21. How do I get extension for my H-1B visa?

H-1B extension is the extension of authorization to work in the U.S but it is not the actual visa. In order to travel outside the U.S you need to get your visa stamped based on the new extension.

22. What is the AC21 legislation on H-1B visa?

The American Competitiveness in the 21st Century Act of 2000, which became effective on October 17, 2000, permits extension of H-1B status past the six-year limit where a labor certification has been pending for 365 days or longer, regardless of whether or not a Form I-140, Immigrant Petition for Alien Worker, has been filed, or where a Form I-140 has been pending for 345 days or longer.

23. What is premium processing of H-1B petition?

Through the USCIS Premium Processing Service U.S. employers may pay a $1,410 fee for expedited processing of their H-1B’s. This service guarantees that within 15 days USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation. Employers may request Premium Processing by filing a completed Form I-907, Request for Premium Processing Service.

24. What status will be assigned to H-1B workers who are laid-off?

If you are laid-off or have resigned from your current employer, you will lose your status immediately. It is advisable to leave the U.S. as soon as possible to avoid legal issues. However, USCIS Officers have been given discretion to approve a change of status if has been filed soon (usually within 10 days) after you terminated your employment.

25. Can I transfer my H-1B visa to another company?

You may apply for an H-1B transfer to another company. For this you need valid employment in the U.S. Also you have to prove that you have recent pay stubs (less than 60 days old) and last year W2 forms (if applicable). If you do not have recent pay slips, then you may need to explain the reasons to USCIS. (Unpaid vacation or long sick leave approval letters from your current employer may be considered.) As per law, the petitions that were filed after the last date of employment are not eligible for change of status or change of employment because the applicant becomes out of status when the applicant loses his or her job. The laid off H-1B worker will be considered out of status even though he has valid H-1B visa in his passport or valid
I-94 card.

26. I am still the employee of my company, but without pay, what is my status?

As per the law, you should get paid from day one of your U.S. employment. You cannot live in the U.S. without a salary unless you are on unpaid vacation or sick leave. Your status is legal and valid, but if you are not able to find another employment quickly, it is advisable to leave the U.S. If your employer refused to pay your salary, you can complain to the nearest USCIS office or Department of labor (DOL).

27. Can I intend to immigrate permanently to the U.S. when on H-1B visa?

Yes, you may apply for Adjustment of Status while on H-1B visa. You may be the beneficiary of an immigrant visa petition, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as ‘dual intent’ in the immigration law. During the time your application for LPR status is pending, you may travel on your H-1B visa rather than obtaining Advance Parole or requesting other advance permission from USCIS to return to the U.S.

28. Are there new exemptions to the H-1B cap?

Yes, in addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:

Note: AC21 also specifies that H-1B worker be counted against the cap if the worker transfers from an ‘exempt’ employer to an employer that does not have an exemption.

29. Are there any travel restrictions on H1B visas?

No, there are no travel restrictions on H-1B visa. You may travel outside the U.S. and reenter as many times during the validity period of the H visa and approved petition.

30. Are there any travel restrictions on H1B visas?

Yes, in addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:

  1. Institutions of higher education
  2. Related or affiliated nonprofit entity
  3. Nonprofit or government research organization

Note: AC21 also specifies that H-1B worker be counted against the cap if the worker transfers from an ‘exempt’ employer to an employer that does not have an exemption.

31. Are there any new filing exemptions?

Yes, an amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.

32. Who are eligible to use the H-1B 'portability' provisions?

The portability provisions allow a nonimmigrant foreign national previously issued H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the foreign national. Previously, foreign nationals in this situation had to await USCIS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed ‘before, on, or after’ the date of enactment, so all foreign nationals who meet this definition can begin using the portability provisions.

33. Are there any other limitations on the 'portability' provisions?

A foreign national must have been lawfully admitted into the U.S. The new employer must have filed a ‘non-frivolous’ petition while the foreign national was in a period of stay authorized by the Attorney General. A non-frivolous petition is one that has some basis in law or fact. Subsequent to such lawful admission, the foreign national must not have been employed without authorization.

34. How will employers who hire H-1B foreign nationals using the portability provisions comply with their I-9 requirements?

Current regulations, 8 C.F.R. 274A.12(b)(20), authorize employment with the existing employer after a request for extension of H-1B status is filed. The foreign national in this case is employment authorized but the I-9 Form, Employment Eligibility Verification, contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this could involve attaching a copy of the receipt notice for the filed petition along with a copy of the foreign national’s I-94 to the I-9 kept on file.