50 most commonly asked H-1B questions

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The H-1B visa allows foreign nationals with a U.S. bachelor’s degree (or its foreign equivalent) to work in the United States. Foreign nationals must find a U.S. employer that is willing to hire and pay for the expenses related to the H-1B petition.

The H-1B visa is highly sought after, due to the limited amount of visas issues annually. As of June 2018, there are only 85,000 new H-1B visas available each year (20,000 are reserved for foreign nationals with a U.S. Master’s degree). Although 85,000 visas may appear to be a lot, in 2017 and 2018, the visas were immediately accounted for during the first 1-2 weeks after they became available. This means that any foreign national that did not apply for an H-1B visa during the first 1-2 weeks had to wait until the following year to apply. Additionally, in most of the prior years, the U.S. Citizenship and Immigration Services (USCIS) received so many H-1B petitions during the first 1-2 weeks that they had to randomly select cases for acceptance, since they received well over 85,000 cases.

If you are considering an H-1B visa or considering hiring a foreign national on an H-1B visa, it is best to speak with an attorney as soon as possible. Here are some commonly asked questions related to the H-1B visa.

1. When can I apply for a new (“fresh”) H-1B visa?

New H-1B petitions are accepted every year on April 1^st. If the petition is accepted and approved, the earliest employment start date is October 1^st of the same year. Please remember that there are a limited number of H-1B visas available each year. If you do not apply during the first week of April, your chances of obtaining an H-1B visa is very slim.

2. How long does it take to prepare the H-1B petition?

The attorney must obtain various documents from the employer and the foreign national, which may take several days to several weeks. Additionally, the H-1B petition requires a Labor Condition Application (LCA), which will take a minimum of 7-10 days to obtain.

3. How can I find an H-1B employer?

Our office does not match clients to H-1B employers. We recommend that clients conduct online searches to find prior employers that filed H-1B petitions or to ask friends/colleagues/universities for recommendations.

4. How can I increase my chances of finding an H-1B employer?

Attorney David Nguyen has over 16 years of experience as Corporate Counsel for an Internet Technology (IT) company and has personally filed hundreds of H-1B petitions. For this reason, our office can provide clients with advice to improve their chances of being hired by a U.S. company.

5. I am currently married with children. Can my spouse and children come with me to the United States?

Yes, your spouse and children can accompany to the United States. Children must be unmarried and under 21 years of age. If your child is currently in the U.S., they will automatically lose their H-4 dependent benefits once they reach 21 years of age. If your child wishes to remain in the U.S., the child should apply to change his/her immigration classification to a different immigration classification (i.e. F-1 student, H-1B employee, etc.)

6. Can I remain in the U.S. while my H-1B petition is pending?

Maybe. Foreign nationals that have obtained certain degrees may qualify to remain in the U.S. until their H-1B petition is adjudicated. If you are currently in school, please speak to your university’s Designated School Official (DSO), who is responsible for your F-1 student status. If you are not currently in school, please contact our office.

7. Can I pay for the H-1B fees for my company?

No, the government requires that the U.S. employer (“H-1B Petitioner”) pay all of the government filing fees.

8. How much does it cost to submit an H-1B application?

The government filing fee will vary from case to case. The filing fee will vary based on a variety of factors, such as: (i) whether the U.S. employer is filing a new petition, amended petition, or extension petition; (ii) the number of employees that the employer has and the type of visa that they have; (iii) whether the petition is filed while the foreign national is in the U.S. or abroad; (iv) whether the case requires expedited services, etc. It is best to speak with our office to determine what the exact government fees will be.

9. How long can I remain in the U.S. on an H-1B visa?

Generally, a foreign national can remain on an H-1B for a total of SIX (6) years. A U.S. employer can request an initial period of THREE (3) years. If the U.S. employer requires the foreign national to continue working, the company can file an extension petition for an additional THREE (3) years. USCIS will not approve an H-1B request for a period lasting more than THREE (3) years.

If the foreign national wishes to remain on an H-1B beyond the SIX (6) year limit, s/he must find a U.S. employer that is willing to file an employment-based Green Card for them. H-1B extensions beyond the SIX (6) year limit, requires an approved Labor Certification or an I-140 immigrant petition that has been filed at least 365 days before the submission of the extension request.

10. What are the U.S. employers obligations for an H-1B visa?

If a U.S. employer files an H-1B employer, the employer must agree to pay the government filing fees, agree to maintain a public access file for the foreign national, pay the foreign national a minimum wage as required by the Department of Labor, pay for the return transportation of the foreign national in the event that the employee is dismissed or no longer needed before the end of the requested authorized period of stay.

11. Is the U.S. employer responsible for paying for the return transportation of an employee who voluntarily leaves the U.S.?

No, a U.S. employer is not responsible if the H-1B employee voluntarily ends their employment.

12. I am currently working at Company A, if Company B files an H-1B petition for me, when can I begin working for Company B?

Although the law permits a foreign national to change employers (also known as “porting”) after Company B files the H-1B transfer petition, we recommend that foreign nationals wait until their transfer petition is accepted and approved. If the foreign national cannot wait for the approval, we recommend that s/he wait, at least, for the H-1B transfer petition’s Receipt Notice.

13. Why was my H-1B petition rejected or denied?

There can be many reasons, such as: (i) hiring an inexperienced attorney that did not adequately analyze and/or work on your case; (ii) filing the H-1B petition incorrectly; (iii) failing to maintain valid immigration status, etc. There can be many reasons for an H-1B denial, so it is important to hire an immigration attorney that has experience procuring hundreds of H-1B petitions.

14. My company filed an H-1B petition on my behalf. They just received a Request for Additional Evidence. What is this?

A Request for Additional Evidence (also known as “Request for Evidence” or “RFE”) is a document sent by the U.S. Citizenship and Immigration Services (USCIS) when the immigration officer requires additional information/documents before s/he renders a decision. It is also issued if the officer believes that the case should be denied but would like to offer the U.S. employer an opportunity to respond.

A RFE is a warning sign that the case could be denied. For this reason, it is important to reach out to a competent immigration attorney if you were issued a RFE. Our office has experience successfully responding to RFEs.

15. I have a Bachelor’s degree and a U.S. Master’s degree. Can my employer submit TWO (2) H-1B petitions for me?

Generally, no. A U.S. employer can only file ONE (1) petition for a foreign national. There are limited circumstances when more than ONE (1) petition can be filed.

16. I am a U.S. employer. I have already hired a foreign national on an H-1B visa. Can I file another H-1B petition for another foreign national?

Yes. However, you must be able to show that your company has the ability to pay all of its workers.

17. Can I file an H-1B petition by myself?

No, only a U.S. employer can file an H-1B petition.

18. How fast does USCIS process the H-1B petitions?

Normally, it may take several months. There is an option called Premium Processing service. For an additional $1,225 (as of 6/29/2018), the government can adjudicate the petition within 15-business days after receipt. Paying this additional amount does not increase the chances that your H-1B petition is approved.

19. Can I request Premium Processing after the H-1B petition is already submitted?

Yes, you can upgrade the case.

20. There are no longer any H-1B visas available for the current year. Does this mean that I have to wait until next April to apply for an H-1B visa?

Some employers are exempt from the H-1B annual quota. This means that they can hire foreign nationals that are not subject to the annual quota. Exempt employers generally include non-profit organizations that are affiliated or related to an Institution of Higher Education, Institution of Higher Education (i.e. college, university, etc.), non-profit research organization, government research organization, etc.

If you are from Mexico, Canada, Singapore, Chile, or Australia, there are similar visas to the H-1B visa that may be available to you. Please contact our office for more information.

21. I was hired by an H-1B exempt employer. Can I change employers even though my new employer is not an H-1B exempt employer?

No. If you were never subject to the annual cap (counted towards the 85,000 H-1B visas available each year), you would not be able to switch from a cap exempt employer to a non-cap exempt employer. However, you can switch from a cap exempt employer to another cap exempt employer.

22. Can I go to school and work on an H-1B visa?

Maybe. The primary purpose of an H-1B visa is for the foreign national to work for the U.S. This means that the foreign national’s primary purpose for being in the U.S. must be to work for the U.S. employer. If the foreign national maintains full-time employment and goes to school part-time, there should not be an issue.

23. How much money does the U.S. employer need to pay the foreign national?

The law requires the employer to pay the higher of the prevailing wage or the actual wage related to the position. It is important to speak with an experienced immigration attorney to determine the minimum wage that the U.S. employer must pay. Various factors will determine the wage level, such as the location of the position, type of position, education/experience of the foreign national, etc.

24. I was approved for an H-1B petition 1 year ago. I did not enter the U.S. Can I enter the U.S. now on the H-1B petition?

Maybe. Most likely you will not be subject to the H-1B cap, since you were already counted towards the cap when your H-1B petition was selected and approved. This being said, you will be required to prove that the position is still available at your visa interview.

25. I was in the U.S. and was approved for an H-1B. If I travel abroad, will I need a visa to return to the U.S.?

Yes, if you do not have an H-1B visa in your passport, you will be required to schedule and attend a visa interview abroad. Please make sure to schedule your visa appointment in advance to ensure that an appointment is available during your trip. You should expect to provide the U.S. consulate and/or embassy abroad with documentation related to your H-1B petition. It is best to hire an experienced immigration attorney to help you prepare a consular package.

26. Can I be denied an H-1B visa at the U.S. consulate and/or embassy even if my H-1B petition was approved by the U.S. Citizenship and Immigration Services (USCIS).

Yes. In our experience, the U.S. consulate and/or embassy is stricter than USCIS. It is best to hire an experienced immigration attorney to help you prepare a consular package.

27. I am on my 5^th year as an H-1B holder. How can I extend my stay?

First, you can “recapture” any time that you have spent outside of the U.S. while you had your H-1B status – and add it back to your maximum 6-year period. Secondly, the 6-year period can be extended indefinitely if the foreign national has an approved Labor Certification or has filed an I-140 immigrant petition that has been pending for at least 365 days.

28. I am on a J-1 visa. Can I apply for an H-1B visa?

Maybe. If you are not subject to the TWO (2) year home residency requirement, you can adjust status in the United States. However, if you are subject to the residency requirement, you will have to obtain a waiver. The waiver takes time to get approved and it is unlikely that you will be able to remain in the U.S. while you apply for the waiver.

29. Can an employer ask the H-1B employer to repay the costs of the government filing fees, if the employee leaves voluntarily?

No, the U.S. Department of Labor considers the government filing fees to be a business expense and will not allow U.S. employers from recouping these fees from the H-1B employee.

30. I have scheduled an H-1B visa interview. Should I bring my spouse and children?

Yes, your spouse and children will need their own visas (H-4 dependent visas) and will need to accompany you to the interview.

31. I am on an H-1B visa, can I buy a house?

Yes, you can purchase assets or property.

32. I am on an H-1B visa, can I invest in a U.S. business?

Yes, you can invest in any venture or company. You cannot work for a U.S. business that is not the H-1B petitioner, unless you are volunteering.

33. I had an H-1B visa. After I got married, I requested a change of status to H-4 dependent status (since my spouse already had an H-1B visa). Can I return to my H-1B at a later time?

Most likely, you will be able to.

34. I am on an H-4 dependent visa. Can I study in the United States?

Yes, you can study in the United States. You do not need to change your immigration status to F-1/M-1 student. You can also volunteer. In some situations, you may be eligible to apply for work authorization.

35. Can a U.S. employer file an H-1B petition for part-time employment?

Yes, our office has successfully procured part-time H-1B visas. Foreign nationals can be employed for TWO (2) or more H-1B employers on a part-time basis.

36. I am living abroad. My H-1B petition was recently approved. How soon can I enter the United States?

You can enter the U.S. TEN (10) days prior to the start date on your H-1B approval notice.

37. I am currently on my 6^th year as an H-1B holder. Can I apply for a new H-1B under the new H-1B cap?

No. However, if you leave the U.S. and remain outside of the U.S. for at least ONE (1) year, you can apply for a new H-1B.

38. My passport has expired. Do I need to apply for a new one?

If your passport is set to expire within 6-months after your H-1B start date, the H-1B petition can still be filed; however, the foreign national may receive a Request for Additional Evidence (RFE) from USCIS asking for proof the passport extension request.

39. Should I maintain my H-1B even though I can obtain an Employment Authorization Document (EAD) based on my employment-based Green Card case?

Yes, we recommend that foreign nationals try to maintain their H-1B status. In the event that something goes wrong and the employment-based Green Card is denied, the foreign national can remain in lawful immigration status. Without the H-1B status, the person would immediately begin accruing unlawful presence, which may hurt his/her chances of remaining in the U.S.

40. I am currently on an H-1B visa and working as a Systems Analyst. Can my employer file an employment-based Green Card for me as a Programmer Analyst?

Yes, the H-1B position and the employment-based Green Card positions do not need to be the same. The H-1B position is a temporary position and the employment-based Green Card position is for a future and permanent position.

41. I am a U.S. employer. The foreign national is required to work temporarily at a new location for ONE (1) week. Should I file an amended H-1B petition?

Maybe. You may have to file an amended H-1B petition (which takes time) or you may only have to file a new Labor Condition Application. It is best to speak with an experienced immigration attorney to analyze your case.

42. I am applying for an H-1B. Will my spouse and children automatically obtain H-4 dependent status?

No. If your spouse and children are currently in the United States, they will need to file separate applications to change their status to H-4. The H-1B employer is not obligated to pay for the government fees related to the H-4 petitions. We recommend hiring an experienced immigration attorney to avoid mistakes.

43. My U.S. employer did not file my H-1B extension petition on time. What will happen?

It depends. A U.S. employer has an obligation to timely file the extension request. However, the government has discretion to extend the stay. It is important to hire an experienced immigration attorney who has successfully filed a late extension to assist you with your immigration needs. Please contact our office for details.

44. I was terminated from my H-1B employment. I have not been working for several weeks. I have found a new U.S. employer willing to file an H-1B petition for me. What will happen?

It depends. An H-1B employee must maintain status at all times. This means that if a foreign national is in the U.S. on an H-1B visa, s/he must work for an H-1B employer at all times. However, the government does take into consideration situations that are beyond the H-1B holder’s control. It is important to hire an experienced immigration attorney who has successfully obtained H-1Bs for foreign nationals that have not maintained status. Please contact our office for details.

45. I am currently in the U.S. My H-1B visa is about to expire. What should I do?

Nothing. A visa allows you to return to the United States after traveling abroad. If you do not intend to travel in the near future, you can legally remain in the U.S. until the H-1B validity period on your Form I-797, Notice of Action expires. You will only need to renew your visa at a U.S. consulate and/or embassy abroad, if you travel abroad and need to return to the U.S.

46. I have a valid H-1B visa. I have switched employers. Do I need to attend another H-1B visa interview?

No, you can use your prior H-1B visa even though you are currently working for a different H-1B employer.

47. I am from India. Can I apply for an H-1B visa in Canada, Mexico, or another country closer to the United States?

Maybe. Countries other than your home country are not required to issue H-1B visas. Some consulates and/or embassies will not issue initial H-1B visas either. It is important to seek assistance of an experienced immigration attorney to assist you with consular process. Please contact our office for details.

48. I own a small company. Should I hire an attorney to help me file an H-1B petition?

Yes. The H-1B process is complicated and you will have questions along the way. Also, there are many employer obligations before and after filing an H-1B petition that you may not be aware of. Our office has successfully worked with small and large companies and can assist you with your first H-1B filing.

49. TWO (2) years ago I was approved for an H-1B visa. However, I was unable to enter the U.S. Can I enter the U.S. and work for a different H-1B employer?

If your new H-1B employer files an H-1B petition for you and it is approved, you can enter the U.S. and work for the new H-1B employer even though you did not have a prior H-1B visa with your first employer.

50. What if my prospective employer is not familiar with the H-1B status?

At times like this, the presence of an immigration attorney is important. The attorney can explain to the prospective employee and prospective employer how the H-1B process works. It is also important for the employer to understand that they will be sponsoring the employee. This means they will be responsible for submitting the petition along with the required fees.

For more information on 50 most commonly asked H-1B questions, a consultation is your next best step. Get the information and legal answers you are seeking by calling (281) 777-1236 today.