| 1. | Can I use H-1B portability if I change status from another visa classification to H-1B? |
| NO. Only persons already lawfully in H-1B status may take advantage of H-1B portability. All other workers must have their H-1B petition approved by USCIS before they may begin working. Because Department of Homeland Security (DHS) has never issued regulations interpreting the H-1B portability law, some lawyers and others take a more expansive view of H-1B portability; however such interpretations are very risky, given DHS informal statements concerning portability.
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| 2. | Can my dependents work or attend school in the United States? |
| Foreign nationals with H-4 status may not be employed in the United States but they can attend school.
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| 3. | How do I qualify for an H-1B visa? |
| A threshold requirement of the H-1B visa is that the job offered must require a minimum of a bachelor's degree in a specialized field and the candidate must possess this degree in a specialized field, or its equivalent, as recognized by the United States Citizenship and Immigration Services (USCIS). Diplomas, transcripts, and other education documents issued by foreign institutions must be evaluated by a third party education credentials evaluator, which must be submitted with the H-1B petition. All documents written in a language other than English must be accompanied by a certified translation.
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| 4. | If I am currently in H-1B status with another employer, can I start work with a new employer immediately? |
| The Immigration and Nationality Act allows H-1B workers to accept employment with a new H-B employer upon filing of a non-frivolous petition for new employment if the worker is working in valid un-expired H-1B status at the time of filing of the new petition, and has not been employed without authorization subsequent to his admission to the United States in lawful H-1B status. This rule is referred to as "H-1B portability". If the new petition is denied, such employment authorization is immediately terminated. PLEASE NOTE: H-1B workers who have been laid off prior to filing of an extension of status petition by a new employer are considered by the USCIS to be ineligible for extension of status due to a failure to maintain lawful status. USCIS may exercise its discretion to extend the status of such persons under certain extraordinary circumstances.
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| 5. | Is there a "grace period" that allows me to stay in the United States after my employment is terminated? |
| THERE IS NO GRACE PERIOD. Foreign nationals in H-1B visa classification are authorized to be in the United States only for the purpose of productive employment. The day that productive employment ends, even if the employee receives a severance package, the employee must immediately leave the United States unless a new H-1B petition has been filed on their behalf by a new employer, or the employee has filed a request to change status to another nonimmigrant visa classification before his or her last day of productive employment.
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| 6. | My H-1B extension is still pending at USCIS; what happens if my H-1B status expires? |
| As long as an H-1B extension petition has been timely filed prior to the date of expiration of status, you remain in valid H-1B status until a final decision has been made by USCIS on the case. However, travel outside the United States prior to the approval of the extension is not advised, except under very narrow circumstances. H-1B workers in this situation should consult an attorney before making travel plans.
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| 7. | My six years of H-1B eligibility is "maxing out" and the Labor Certification or I-140 Immigrant Petition filed on my behalf has not been approved. Is there any way to extend my H-1B status? |
| The DOJ Appropriations Reauthorization Act of 2002 amended the law to allow employers of H-1B workers to extend their H-1B status beyond the normal six year limit in 1-year increments, so long as the worker is the beneficiary of a Labor Certification or I-140 Immigrant Petition that has been pending for at least 365 days and the individual is still in valid H-1B status at the time of filing of the 7th-year extension request. Current Department of Homeland Security policy indicates that persons who exhaust their 6 years of H-1B eligibility prior to the 365 day anniversary of filing of their Labor Certification or I-140 and have either changed status to another nonimmigrant status or have left the United States will not be eligible for 7th-year extensions.
In addition, individuals with an approved I-140 may extend their H-1B past the normal 6 year limit in three year increments.
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| 8. | What do my dependents qualify for? |
| Spouses of H-1B holders and their dependent children under the age of 21 can qualify for H-4 derivative status if they are otherwise admissible to the United States.
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| 9. | What if I do not have a 4-year degree related to the specialty occupation? |
| If your degree is unrelated, it is not the equivalent to a United States 4-year baccalaureate degree, or you do not possess a degree at all, you may still qualify for H-1B status if you possess the requisite related work experience and recognition of expertise to make up for the academic deficiency. The USCIS uses a formula that equates three years of full-time related work experience in positions of increasing responsibility with one year of full-time university-level study. In other words, an H-1B candidate that has no college education must be able to prove at least 12 years of fulltime related work experience. Prior work experience must be proven through submission of original letters from former employers.
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| 10. | What is the H-1B Classification? |
| The H-1B visa classification allows United States employers to employ professional foreign nationals on a temporary basis in a Specialty Occupation. A Specialty Occupation is one that normally requires a specific 4-year baccalaureate degree as a minimum requirement for entry into the field in the United States. H-1B status may be approved for up to three years and extended for a total of six years. Foreign nationals who previously worked in H-1B status but who have resided outside the United States for one full year may obtain a new six years of eligibility but are subject to the H-1B cap again.
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| 11. | What is the H-1B Employer fee? |
| In addition to the normal filing fee (currently $320) the law now imposes an additional fee that can only be paid by the petitioning U.S. employer. The proceeds of this fee go mainly to grants and training programs for United States workers. As of 8 December 2004 the H-1B employer fee is:
- For Employers (including affiliates and subsidiaries) with 26 or more full-time equivalent employees in the US = $1500.
- For Employers (including affiliates and subsidiaries) with 25 or fewer full-time equivalent employees in the US = $750.
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| 12. | What is the H-1B Visa 'Cap'? |
| The H-1B cap is a quota on the number of H-1B visas/statuses that may be granted each fiscal year. Beginning on March 8, 2005 there is a separate annual cap for graduates of U.S. advanced degree programs. Singapore and Chile also have separate quotas based on bilateral free trade agreements. Therefore, there are essentially four separate H-1B caps:
- Persons with U.S. Masters or higher degrees = 20,000/year
- Nationals of Singapore = 5,400/year
- Nationals of Chile = 1,400/year
- All other H-1Bs = 58,200/year
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| 13. | What is the new "Fraud Prevention and Detection" Fee? |
| This in a new $500 fee created by the "L-1 visa and H-1B Visa Reform Act of 2004", which was enacted on December 8, 2004. This fee is imposed on employers filing H-1B or L-1 visa petitions for initial grants of H-1B or L-1 status and on petitions requesting a change of employers. The fee applies only to the principle workers being sponsored and not to accompanying spouses or children. The new fee applies to petitions filed on or after March 8, 2005.
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| 14. | What is the procedure for extending H-1B status? |
| H-1B workers are granted an initial period of stay of up to 3 years, after which the petitioning employer may request an extension of status for another 3 years for a maximum of 6 years (inclusive of all prior stays in H and/or L status since the worker last resided abroad for one full year). H-1B extensions must be filed by the employer at the USCIS Service Center that has jurisdiction over H-1B's work-site location. H-1B extension requests must be filed prior to the date of expiration of the worker's current H-1B status (as determined by the date on the worker's I-94 card).
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| 15. | What obligations/responsibilities does the employer have when a foreign national in H-1B visa classification is terminated? |
| When the employer terminates a foreign national in H-1B status prior to the expiration of the employee's authorized period of stay, the employer is obligated to provide the reasonable cost of return transportation to the foreign national's country of citizenship or last place of residence abroad. This obligation does not extend to the employee's family members, or to personal belongings. Employers are also required to notify USCIS of any material change in employment, including termination of the employment by either party.
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| 16. | When do new H-1B visas come available again each year? |
| H-1B numerical limitations are counted starting at the beginning of the Federal Fiscal year, which runs from 1 October - 30 September. The H-1B cap is often reached far in advance of the start of the fiscal year. This occurrs because petitioning United States employers may file H-1B petitions up to 180 days in advance of the requested start date, as long as the worker otherwise qualifies for H-1B status at the time of filing.
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| 17. | When does the H-1B Employer Fee apply? |
| The H-1B employer fee applies to:
- Petitions for initial H-1B employment;
- The 1st petition to extend status for the same employer;
- Petitions to change H-1B employer (H-1B 'transfers').
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| 18. | When is an amended H-1B Petition Required? |
| Amended H-1B petitions must be filed with USCIS whenever there is a material change in employment, such as a change in job location and/or a significant change in job duties and responsibilities. Amended petitions must also be filed whenever a new Labor Condition Application has been filed with the Department of Labor for that employment. Amended petitions are no longer required after a corporate reorganization, as long as certain conditions have been met.
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| 19. | When is the H-1B Employer Fee not required? |
| The fee is not required when filing second or subsequent extensions of H-1B status with the same employer. In addition, certain nonprofit and governmental research organizations and institutions of higher education are exempt from this fee.
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| 20. | Which H-1B filings are subject to the H-1B cap? |
| Not all H-1B petitions are subject to the H-1B cap. Most filings for initial employment, such as new consular applications and applications to change status in the United States (e.g. from F-1 or TN status to H-1B status) are subject to the H-1B cap. H-1B extensions and 'transfers' (changes of H-1B employer) do not count against the cap because foreign nationals can only be counted once for each 6 years of H-1B eligibility. In addition, H-1B petitions filed by certain nonprofit and governmental research organizations and institutions of higher education are exempt from the cap's numerical limitations.
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