H-1B frequently asked questions
General US H-1B Visa FAQ
Can the H-1B employee work at different sites?
Yes, but a separate Labor Condition Application must be made for each site at which the employee will be working (though there is a limited exception for short-term assignments at different sites within the same Metropolitan Statistical Area).
Can employment/contracting agencies sponsor H-1B visas?
Yes, but remember the sponsor has to pay the prevailing wage whether or not they can find employment for the alien.
How many H-1B visas are available each year?
65,000 for the fiscal year starting October 1, 2005. However, there are 20,000 additional H-1B visas available as an exemption from the 65,000 quota. These are reserved for people who have graduated from a U.S. university with at least a Masters degree and have other skills and experience in demand.
Research institutions and universities may also offer positions and petition for H-1B visas beyond all caps. People that may qualify for such positions have very unusual skills, education and experience, so it is rare that petitions are made beyond the official caps.
What happens when the annual quota is reached?
USCIS announces a cutoff date once the annual quota is reached. Petitions filed before the cutoff date, but after the quota has been used up, will be held for processing the following October. Petitions submitted after the cutoff date will be returned to the petitioner without consideration.
What are the government fees involved in obtaining an H-1B visa, and who pays them?
- The USCIS filing fee is currently US$ 320, which must be paid by the sponsoring employer.
- In addition to the filing fee, the USCIS imposes a Fraud Prevention and Detection fee of US$ 500. The $500 fee will not apply to amendment or extension petitions filed by the same employer.
- For H-1B applications, the USCIS also imposes a American Competitiveness and Workforce Improvement Act (ACWIA) fee of US$ 1,500 if the petitioner employs more than 25 full-time equivalent employees, including any affiliate or subsidiary, or US$ 750 if the petitioner employs 25 or less full-time equivalent employees.
- Finally, consular visa processing usually involves a charge of approximately $105 in local currency.
- Prevailing Wage Determinations and Labor Condition Applications are free of government charges.
- The employer may expedite the petition through premium processing, by paying an additional $1,000 filing fee whereby the USCIS will adjudicate the case within 15 days.
How long does the process take?
On average 3-6 months in total, depending on the USCIS Regional Service Center processing the application - unless using Premium Procession.
Is it possible to speed up the process?
Yes. USCIS has instituted a program called Premium Processing. If the INS is paid an extra $1,000 on a separate check, USCIS guarantees it will adjudicate the petition in 15 days or notify the petitioner if more evidence is needed.
Can the alien come to the USA on a visitor visa or visa-waiver while the H-1B petition is being processed?
This is possible but not advisable, and under no accounts should the alien risk putting in jeopardy the issue of an H-1B visa by engaging in anything that might be construed as work, as this may lead to the alien being accused of visa-fraud either on entry to the US with a visitor visa/visa-waiver or when applying for an H-1B visa at the US consulate in their own country.
If I sponsor an alien worker for an H-1B, do I have to employ him/her for the full period of the visa's validity?
No, but if you dismiss the worker before the H-1B visa expires you are responsible for his/her reasonable costs of return transportation to their home country. You will probably not be responsible for such costs for his or her dependants, however.
Can the H-1B alien's spouse/children work or study in the US?
Dependents of the H-1B alien are granted H-4 visas, which are not employment-authorized. Thus they cannot work for their prospective employer unless they can obtain a work visa in their own right. H-4 dependents may, however, undertake study in the USA.
Terminated H-1B Workers FAQ
In the following we present some responses to frequently asked questions (FAQ) by H-1B employees in a softening software economy when facing lay-offs or terminations. These questions have been compiled based on those often posed to us here at www.usadiversitylottery.comI was laid off a month ago and my company has informed me that they sent INS a letter revoking my H-1B petition. What happens if I find another H-1B employer in the meantime?
The INS has typically been taking several months to process H-1B revocation notices, which means that, as a practical matter, the revocation of the H-1B petition may not appear in the INS system for several months. However, this is merely a general statement and not official INS policy. One should therefore make efforts to find another job as soon as possible and have the new employer sponsor the H-1B employee for the H-1B petition at the earliest opportunity. One may encounter problems without the availability of current pay stubs as proof of continuing, valid H-1B status. One may not be able to obtain an H-1B extension of stay and may be required to travel abroad to obtain a new H-1B visa or, at the very least, obtain a new I-94 card with H-1B status upon re-entry to the U.S.
Do I still qualify for H-1B portability if I have changed to a different status?
This is a gray area where the law is not entirely clear. The portability provisions under the American Competitiveness in the Twenty-First Century Act (AC21) of October 2000 state that a nonimmigrant who was previously issued an H-1B visa or provided H-1B nonimmigrant status may begin working for a new H-1B employer as soon as the new employer files a "nonfrivolous" H-1B petition on the H-1B beneficiary's behalf. It does not state that the beneficiary had to be in H-1B status at the time the new H-1B petition was filed. The INS has not fully addressed the scope of these provisions. The most recent INS memo on the subject, dated June 19, 2001, states that the INS or Service is formulating regulations to address the scope of the portability provisions. The memo states, "On one hand, Congress does not appear to have limited portability benefits to only those who are working lawfully in H-1B status at the time a new employer files a new H-1B petition on their behalf. Nor, on the other hand, does Congress appear to have extended portability benefits to any alien who has ever held H-1B status, no matter how long ago or what the alien's current status in the U.S." The Service stated in the memo that they expected to propose a rule on the subject and possibly a 60-day time frame may be a possible solution. To date, there is no rule. Therefore, arguably, a person could still enjoy portability benefits after having changed from H-1B to another nonimmigrant status. However, it is generally safe to err on the side of caution and not engage in any employment that could later be characterized as unauthorized. Therefore, it appears that it would be safest to commence employment only upon approval of the later H-1 petition, in these scenarios. With the availability of premium processing which the INS generally decides within 15 days, the wait should not be extremely long.
I have an H-1B visa for full-time work and a concurrent part-time H-1B for another job. I have been laid off from the full-time job and want to revert to the part-time job. I haven’t been working for the part-time employer since I have been in the U.S., which has been 1 year now. Can I go back to the part-time job now?
According to the current U.S. Department of Labor interpretation of the regulations, one cannot simply return to a "dormant" H-1 approval with a prior or different employer. Employers are required to pay H-1B employees the prevailing wage salary as stated on the H-1B petition unless the H-1B employee is terminated. Therefore, the part-time employer was required to either start the H-1B employee and pay the wage stated on the H-1B petition for part time employment or terminate the H-1B employee and notify the INS of the termination of employment. If the prior H-1B employer decides to re-hire an H-1B employee based on having an H-1B petition approval for that employee, the U.S. Department of Labor takes the position that the employer is responsible for wages from the beginning of the H-1B petition approval for part-time employment, even if the employee never worked for the prior H-1B employer. This raises difficult issues and potential problems for both the employer and employee. Usually, what is done in this instance is that the second employer may simply choose to file a new H-1B petition.
Can I apply for a status other than H-1B if I am being laid off?
In certain circumstances, an H-1B employee may be able to apply for another status. There are a number of different options. Depending on a person's individual circumstances, one may qualify for one of these categories.
Viable options may include F-1 (student status), H-4 or F-2 (dependent of an H-1B or F-1 spouse, respectively) and B-2 (tourist) or B-1 (business status). While such a change could help one stay in status, it is important to ensure that the eligibility criteria are met for whichever status one opts. INS has confirmed that a laid-off H-1B worker may apply for a visitor’s visa in order to look for employment. However, a person who is on a status other than an H-1B may no longer be able to enjoy the benefits of H-1B portability and will be subject to the H-1 cap. This may be the only available option if the applicant's I-94 is expiring, but should not be done without a full understanding of the legal and other consequences.
I have recently been laid off and was told that my employer is obligated to continue paying me until INS revokes the petition. Is this true?
According to Department of Labor (DOL) regulations, an employer must continue to pay the H-1B worker until there is a "bona fide" termination of the employment relationship. It is not clear exactly what constitutes a "bona fide termination," but one viewpoint is that termination occurs on the day the employer notifies the H-1B employee that the position has been terminated and all obligations for payment of wages terminate on the date of employment termination. The other viewpoint is that a termination only occurs when the H-1B employer notifies the INS of the termination, the H-1B petition is cancelled and the employer complies with the return airfare obligation for the employee. Please note that INS does not expressly spell out the options and therefore this is an unclear area of immigration law. As it can take several months for the INS to act on a revocation request, employers generally do not continue to pay wages until INS takes action. The employer usually notifies the employee of the termination date and discontinues any salary or other payments at that time. Thereafter, they notify INS.
If I apply for a change of status, and in the meanwhile find a new employer, can I revert to H-1B again?
It is generally possible to apply for and obtain H-1B approval when one has already applied for a change in status and this status is still pending. The last status approved is the one that governs. Therefore, it is important to take steps necessary to assure that the H-1 will be the last application approved. This may require withdrawal of any previously filed petitions / applications. However, this should be carefully reviewed to assure that a withdrawal does not result in an "out of status" period.
I was laid off and found a new employer to sponsor me for an extension of my H-1B status. I am concerned that INS will not approve the extension of stay request and I will have to travel abroad to apply for my new H-1B visa. I have heard that if "extraordinary circumstances" exist, INS has discretion to grant an extension of stay to a person who is out of status. What constitutes "extraordinary circumstances?"
In recent discussions with representatives of the American Immigration Lawyers Association in various liaison meetings, the INS has stated that being laid off is not considered an “extraordinary” circumstance and therefore it will not issue a blanket forgiveness of status violations for laid-off temporary workers. Instead, INS will continue to consider each case on its individual merits. This means that there is always a risk that the INS could deny the extension of the H-1B status and require the H-1B employee to depart the U.S. on short notice.
Will it help my status if my employer keeps me on the payroll, although I am terminated and no longer being paid?
It is not likely that INS will consider a person as being “in status” when s/he is not being paid. This is a risky option to pursue, both for the H-1B employee / beneficiary and the H-1B-sponsoring company. When a person applies for either an extension of the H-1B status with the H-1B employer or for a change of status, that person will be expected to be able to produce recent pay stubs to the INS to show maintenance of lawful non-immigrant status. Without these, the INS is not likely to regard the H-1B beneficiary as having maintained valid legal status.
If my employer agrees in the severance package to pay me for several months after I am laid off, am I nonetheless considered terminated and therefore “out of status” during that period?
According to INS, a person in H-1B status is considered out of status from the day his/her employment is terminated by the employer. Whether one may still be receiving a paycheck from the employer is irrelevant. However, it could be useful to keep in mind that INS only requires pay stubs as proof of valid, legal H-1B status when according the extension of status or the change of status on a new H-1 petition.
Can I still file for an H-1B transfer 4 months from the time I was laid off? I do not have recent pay stubs.
Technically, the INS appears to take the position that H-1B status ends upon termination of the H-1B position. INS regulations prohibit the change, extension, or amendment of status for individuals who are out of status. The exception to this is a regulation that allows the INS to exercise discretion and overlook minor gaps in status when making decisions regarding such cases. If the gap in status is too long, the employer may be able to submit a petition to the INS to sponsor the H-1B employee for a new H-1B, but the INS is unlikely to approve both the H-1B petition and the H-1B extension of stay. In these instances, often the INS will approve the H-1 petition but will not attach an I-94 card to the approval notice. This would probably require the H-1B employee to depart the U.S., possibly make an application for an H-1B visa at a U.S. Consulate abroad (generally, if the visa stamp in the passport had expired), and obtain a new I-94 card granting H-1B status upon re-entry. Of course, one must be mindful not to accumulate 180 days of time out of status as this will then bar reentry for three years or ten years, depending on the length of time one is considered to have accrued unlawful presence in the U.S.
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