FAQ on H-1B Visa requirements, PDW, priority date, current processing time and many more

Frequently Asked Questions about H-1B

Q: What is USCIS?

A: USCIS stands for United States Citizenship and Immigration Services. It is the agency of the U.S. government principally responsible for matters dealing with aliens in the United States. Such responsibility includes jurisdiction over immigrant petitions, such as those requiring a labor certification, although the labor certification process itself is still presided over by the U.S. Department of Labor (DOL). Prior to March of 2003, the USCIS was called the Immigration and Naturalization Service (INS). For a brief period it was known as the Bureau of Citizenship and Immigration Services (BCIS). It is also sometimes simply called CIS. For purposes of this web site, we use the current accepted name of U.S. Citizenship and Immigration Services or USCIS.

Q: What is DOL?

A: DOL stands for Department of Labor. This is the agency of the U.S. government that through its two national processing centers in Atlanta and Chicago, adjudicates PERM Labor Certification applications for the whole nation.

Q: Who is handling my case if I retain Z&A?

A: Our attorneys handle our clients' cases individually by preparing petition letters, contacting clients, and following up on pending cases. That is why we have more attorneys than clerks. Our law clerks' main objective is to help attorneys prepare clients' packages, and each client's package will be reviewed by one of our most experienced attorneys for final checking before it is sent out to the USCIS.

Q: What is an H-1B?

A: H-1B is a nonimmigrant visa or status allowing skilled professionals in a specialty occupation to work in the U.S. on a temporary basis. The employer in an H-1B application process is the petitioner while the alien is the beneficiary. The alien must possess at least a bachelor's degree or an acceptable foreign alternative. Usually H-1B is suitable for engineers, professors, researchers, software programmers and other foreign professionals. Aliens normally can work for a total of 6 consecutive years in the U.S. in H-1B status.

Q: How long does it take to obtain H-1B status?

A: It usually takes two to three months to have an H-1B approved by USCIS. However, the alien worker or the sponsoring employer may request “premium processing” by paying a $1,000 premium processing fee. With premium processing, the case will be processed within 15 calendar days or the $1,000 premium processing fee will be refund. Please click here for more information on Processing Times.

Q: What are the steps required to file an H-1B petition?

A: The following steps are generally required to file an H-1B petition:

Obtain a job offer from an employer located in the U.S.;
Obtain the prevailing wage for your job from a State Wage Agency or a private survey;
File a Labor Condition Application (LCA) and obtain approval from the DOL;
Complete USCIS's H-1B forms, and include a petition letter provided by the employer;
Submit a completed and signed H-1B petition to the USCIS.

We will walk our client through steps 2, 3, 4, & 5.

Q: What is the Prevailing Wage?

A: The Prevailing Wage rate is defined by the DOL as the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment.

The employer will pay the H-1B employee the higher of:

The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
The prevailing wage level for the occupation in the “area of intended employment”, which is defined as the Metropolitan Statistical Area (MSA) and the narrower Primary Metropolitan Statistical Area (PSMA).

Q: Which government agency determines the Prevailing Wage?

A: Effective January 4, 2010, the Prevailing Wage is determined by the National Prevailing Wage and Helpdesk Center (NPWC). The SWA will no longer be involved in determining the Prevailing Wage.

Q: What are the key factors determining the “Prevailing Wage”?

A: Factors determining prevailing wage include:

Job title;
Educational and work experience requirements;
Job description;
Job location; and
Type of employer, i.e. academic, government or private.

Example:

John and Ron are both professors of biochemistry who have the same educational experience and fulfill the same job descriptions. John is employed by a university in New York City, while Ron is employed by a college in Houston, Texas. Due to the differences in location and cost of living at these locations, the prevailing wage for John is higher than the prevailing wage for Ron.

Jen and Ryan are researchers in chemistry, both living in Seattle, Washington and their jobs require the same educational and work experience. The University of Washington hires Jen, while a private company employs Ryan. Since they are employed in different sectors (i.e. Public v Private sectors), their prevailing wages will be different and Jen’s prevailing wage is much lower than Ryan’s prevailing wage.

Jen and Ryan are researchers in chemistry, both living in Washington D.C. and have similar educational background and work experience. The same private company employs both of them, where Jen is the research scientist and Ryan is just a post-doctoral researcher. Since Jen has a higher job title and her job description encompasses more, Jen’s prevailing wage will be higher than Ryan’s.

Q: Q: How long does it take for Z&A to obtain the prevailing wage level for my job position?

A: Generally, we can obtain your prevailing wage level on the same day that you ask us to do so.

Q: Q: How long does it take for Z&A to obtain Labor Condition Application (LCA) approval from the Labor Department?

A: Through electronic filing, we can generally obtain a certified Labor Condition Application on that same day that you ask us to do so.

Q: Q: I have an undergraduate degree from a foreign country. May I still obtain H-1B status?

A: It depends. All foreign degrees need to be evaluated to determine whether the foreign degree is equivalent to an undergraduate degree offered by an accredited university in the U.S. Our firm helps our clients to get the foreign degree evaluations through a third party credential evaluation service.

Q: Q: What do I need to know regarding the educational requirements for H-1B?

A: The educational requirements specify that the alien possess at least a bachelor's degree or its equivalent. If the applicant was awarded a degree from an institution outside of the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a U.S. degree or its equivalent, no prior employment experience is required.

Furthermore, the degree received by the alien and the job the alien wishes to perform must be related. For example, in order to apply for an H-1B, a stockbroker should have a degree in finance or economics, a journalist should have a degree in journalism or writing, etc.

Examples:

Ryan wishes to come to the United States from Germany to work as a stockbroker. Unfortunately he does not have a degree in a field related to securities brokering, only a bachelor’s degree in political science. He has only been a stockbroker for one year in Germany. Due to this, he does not meet the educational requirements for H-1B.

Emily is from India and has a bachelor’s degree in physics and wishes to come to the US as an engineer. In order to do so, she needs to apply for an H-1B visa. She meets the educational requirements of the H-1B visa, since she has a bachelor’s degree in a field that is related to the intended occupation.

Q: I have an associate’s degree requiring only two years of education in a college in my home country. Can my work experience replace the required college education?

A: Yes, work experience can be substituted for the required degree. If an alien does not meet the educational requirements, degree-equivalent experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education.

Examples:

John has a two-year associate’s degree in computer science obtained in China and has been working as a network analyst for more than 6 years. He wants to apply for an H-1B visa to work in the United States. The educational requirement has been fulfilled by his 6 years of working experience as a network analyst, because this experience can be considered equivalent to 2 years of college education. Therefore he can apply for the H-1B visa.

Q: What are the major requirements for an H-1B employer?

A: Two major requirements need to be met:

H-1B employer must have the ability to pay. For instance, John wants to hire a computer programmer for his start-up company. He promises to pay an alien worker $50,000 a year. However, he currently has only $800 in his company’s bank account. Under this circumstance, John fails the “ability to pay” test.
The job offer to an intended H-1B beneficiary should be a bona fide offer. In other words, there must be real business needs for the position to be filled by the alien worker.

Caveat: It is impossible to list all of the relevant information a prospective H-1 employer/petitioner needs to know. To see what specific requirements apply to your case, it is best to obtain legal advice from an experienced attorney.

Q: What kind of legal responsibilities do employers have to assume for their H-1B employees?

A: Legal responsibilities for an employer are as follows:

The employer will pay the H-1B employee the higher of:

The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
The prevailing wage level for the occupation in the metropolitan statistical area of employment;

Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
There is no current strike/lockout involving the prospective H-1B worker's position at his/her workplace;
The employer will provide notice of filing of the labor condition application to the employee collective bargaining representative for the H-1B occupation or, if lacking such a representative, will conspicuously post such notice at the work site on or within 30 days before filing the Labor Condition Application;
The employer will maintain for public examination:

A copy of the Labor Condition Application filed,
Documentation of the salary paid to the H-1B employee,
An explanation of how the actual wage was determined, and
Documentation of the basis used for the prevailing wage;

The employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates employment prior to the end of the authorized employment period.

Depending on the type of violation committed by the employer, civil penalties may be assessed ranging from $1,000 to $35,000 per violation. Furthermore, employers who commit certain violations may be prohibited from participating in the H-1B program or other immigrant programs for at least one year.

Q: What is “benching” of H-1B employees?

A: According to the Department of Labor, benching of H-1B employees is not allowed. If business is slowing down or the H-1B employees have no work to do, the employer must continue to pay the H-1B employee for his/her wages or terminate the employment.
In other words, the only way the employer can stop paying an H-1B wages is by bona fide termination of the employment

Examples:

Kevin, as an H-1B employee, works for Company A which manufactures seasonal products. During the summer the demand for their products is very low, so production is low and Kevin has little or no work to do on some days. Kevin’s employer must either lay him off or continue to pay him his wages even if Kevin is not performing any work.

Q: What are the major requirements for an H-1B employee?

A: Three major requirements need to be met:

Specialty occupation: a specialty occupation requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include but are not limited to: engineers, nurses, professors, researchers, computer programmers and other professionals.
Educational requirements: the position usually requires that the alien possesses at least a bachelor's degree or its equivalent. If the applicant was awarded his/her degree from an institution not located in the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a U.S. degree or its equivalent, no prior employment experience is required.
Work experience: if an alien does not meet the educational requirements, degree-equivalent experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education.

Example

Neil is from India and has been working as a network analyst more than 6 years. He only has an associate’s degree in computer science with 2 years of college education, but wishes to apply for H-1B status so he can work in the United States in the same occupation. The minimum educational requirement has been met because every 3 years of related work experience can substitute 1 year of college education and hence 2 years of college education can be substituted by 6 years of work experience.

Licensure: if a license is required under state law to practice a specific specialty occupation, the alien worker must hold the appropriate license.

Caveat: It is impossible to list all relevant information a prospective H-1 worker needs to know. To see if you qualify for an H-1B visa/status, it is best to obtain legal advice from an experienced attorney.

Q: May I have a part-time H-1B? If I currently have H-1B status from my full-time employer, is there anything I need to do?

A: Yes, you may have a part time H-1B.

A US employer may petition for a part-time H-1B for you. As long as your work hours are at least 50% of the normal full time hours in your industry and you satisfy all other requirements for an H-1B, you are eligible to possess part-time H-1B status.

If you have H-1B status already, you can apply for a concurrent H-1B for another part-time job. In this situation, there is no set number of hours that the beneficiary must work for each employer. You should ask the new prospective employer to apply for a part time H-1B visa on your behalf. You may keep two or more concurrent H-1Bs.

Q: Can I apply for multiple H-1Bs?

A: Yes, you can apply for multiple H-1B’s. You are allowed to work for more than one U.S. employer, but must have an I-129 (Petition for Non-immigrant worker) filed by each employer.

As long as you are in H-1B status and have been counted against the H-1B quota in the past six years, your petition to work for another employer concurrently is not subject to the cap.

Example:

Howard is currently working for Company A as an H-1B holder, which is subject to a H-1B cap. He wishes to work for Company B as well. In order to do so, he must have Company B file an H-1B petition for him and then he will be eligible to receive another H-1B, which will not be subject to the cap limitations, since he already has H-1B status that is subject to the cap.

Q: I am in H-1B status now, and I would like to change jobs. How long does it take to obtain a new H-1B based on a new employer?

A: If you would like to change jobs, your new prospective employer must file a new H-1B application and pay all applicable fees, similar to the initial H-1B petition filed by your current employer. It generally takes between two to three months to obtain approval of an H-1B petition submitted by a new employer. However, you may begin working for your new employer as soon as the new H-1B petition is filed with USCIS under the new H-1B laws, provided that the H-1B quota issue does not exist in your case. Please refer to the following question for an explanation of the H-1B transfer quota issue.

Q: My current H-1B sponsor is a higher education institute, which belongs to H-1B quota exemption. Now I want to change my job to a private company. Can I work for the private company as soon as a new H-1B is filed by the company?

A: Only once the H-1B quota is available for your new H-1B petition or if you had H-1B status in the past six years that was subject to the H-1B quota.

Q: How long in advance can I apply for an H-1B prior to the actual starting date of H-1B employment?

A: You may apply for H1-B visa/status six months prior to the commencement of the employment petitioned, but no earlier than six months. For example, if the starting date of your employment as an H-1B holder is 11/30/06, then you can submit an application for H-1B visa as early as 5/30/06. It is important to apply for the visa as early as possible (for the time being, this means as early as 6 months before your start date) due to the fact that the H-1B quota is currently being used up very quickly. For instance, the H-1B caps for fiscal year 2008 were used up the first day USCIS started to accept applications.

Q: When may I legally begin to work for a new employer if my current H-1B was subject to the H-1B Cap?

A: As soon as the new H-1B petition is filed on your behalf with the USCIS.

Example:

Sam is employed by Company A with his H-1B status sponsored by Company A; his H-1B is subject to the cap. Now Sam would like to work for Company B. Sam may quit his job with Company A immediately after Company B has submitted an H-1B petition on his behalf with the USCIS.

Q: Does my previous employer have to cancel my H-1B?

A: No.

Q: What documents regarding my first employment do I need to present for a new H-1B petition filed by a new employer (employer transfer)?

A: Whenever you transfer from one H-1B employer to another, the USCIS may ask you for evidence that you have maintained proper H-1B status by working for the previous employer. This evidence usually includes paycheck stubs and possibly an employment verification letter.

Q: While working for Employer A, I was in H-1B status. I quit working for Employer A and converted to H-4 (spouse/children of H-1B holder) status. Now, another employer has issued me a job offer and has applied for an H-1B on my behalf. May I begin working for Employer B without waiting for H-1B approval?

A: Yes, if your first H-1B with Employer A was within past 6 years and was once subject to the H-1B quota. If your first H-1B was not subject to the H-1B quota and your new employer B does not belong to the H-1B cap exemption, you cannot begin working for Employer B until the H-1B petition is filed and the H-1B quota is available for the new H-1B petition.

Q: How do I know my H-1B transfer has been filed with the USCIS?

A: An H-1B transfer receipt received from the USCIS is confirmation that your H-1B transfer was successfully filed with the USCIS. A certified return receipt of an H-1B transfer issued by any post office branch should also be sufficient evidence that your H-1B transfer has been filed. Moreover, a delivery confirmation by an express mail company may also serve the purpose of confirmation of filing.

Q: What is the H-1B Cap?

A: Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors.

The H-1B “Cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on H-1B type of visa or authorized to change status if already in the United States. Therefore, there are two ways to be counted against the cap: applying for an H-1B visa or change of status to H-1B from another non-immigration status visa (such as F-1, L-1, J-1, etc.)

Q: What is the current H-1B “quota”?

A: For the current Fiscal Year of 2008, the quota for H-1B visas is 65,000. Among the 65,000 standard spaces, 6,800 are set aside for the H-1B program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreement. These 6,800 spaces are reserved for Singaporean or Chilean citizens. Therefore, the actual H-1B quota is 58,200 for aliens outside of these two countries. However, 20,000 new H-1B visas are available for those foreign workers who obtained a master’s or higher level degree from a U.S. academic institution.

Q: What kinds of H-1B petitions are not subject to “quota”?

Petitions for H-1B status extensions;
H-1B petitions sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government, or nonprofit research organizations;
H-1B petitions for concurrent employment where the alien worker is presently in H-1B status which is subject to H-1B quota;
H-1B petitions to change employers where the current H-1B is subject to H-1B quota;
People who have had H-1B status in the past six years that took up space on the H-1B quota
Those seeking H-4 dependent status (spouse or children of H1-B visa holder)

Q: I was in H-1B status but am now in F-1 (student) status and would like to apply for an H-1B status. Is the new H-1B for me subject to the H-1B quota cap?

A: If your previous H-1B was subject to the quota cap and was within the past six years, you are not subject to quota cap. However, if you have been out of the U.S. for more than one year, you are now subject to the quota cap.

Q: As a Current H-1B employee who has been counted against the H-1B quota, what do I need to know about the “portability rule”?

A: A current H-1B employee, already counted against the H-1B quota in the past six years, may start to work for a new employer upon the filing of a new petition by that employer;

Example:

Todd is from Taiwan on H-1B status, and is subject to the H-1B quota. He has only worked for his current employer for 1 year, and now wishes to change his employment. Todd finds a new employer, Company X, and the employer files an H-1B petition for Todd, so that he can work for Company X. The petition is filed on January 23, 2006 and Todd can begin working for Company X on the same day.

Q: Can a US employer discharge an H-1B employee because there are other qualified US workers available? Under this circumstance, can the discharged H-1B employee have any discrimination claim against the US employer?

A: Yes, the US employer can replace H-1B workers with qualified US workers. The H-1B employee has no claim to discrimination since a US employer has the statutory right, but not the obligation to give job preference to US workers over H-1B workers. But when an H-1B employee is hired, s/he cannot be treated different from other similarly situated US workers.

Example

Company X employs many H-1B employees and recently has found US workers with the same qualifications as some of their H-1B employees. Company X decides to fire all H-1B employees and hire qualified US workers to take their place. Company X is not committing a violation and cannot be sued by terminated H-1B employees for discriminating against them.

Q: I am anticipating that my current employer is going to lay off many H-1B employees, me included. What should I do if I want to stay in the U.S.?

A: In anticipation of the coming layoff, you have the following options:

You should actively seek other employment opportunities and get a new employer willing to file a new H-1B petition for you before you are laid off by your current employer. Bear in mind that a part time job also qualifies for petitioning for H-1B.
If you decide to go back to school, you should start the application process as early as possible to get an I-20 before being laid off. This will enable you to quickly change to F-1 student status. Bear in mind that many community colleges can issue I-20s on the same day when the application is filed, provided all requirements are met. This offers a temporary choice for H-1B holders to keep lawful status in the U.S. after being laid off.
Aliens with dependent spouses should encourage their spouses to seek job opportunities or to apply for academic programs, and to get independent status, (i.e., H-1B or F-1), so that they may change their status to be dependent on their spouses' (H-4, or F-2) after being laid off.
Those who have a relatively strong research background might be able to qualify for permanent residency under EB-1 and/or EB-2 NIW. During the pending period of their petitions, they should try to keep independent non-immigrant status. If that's not possible, then we suggest that they consult with experienced attorneys regarding filing I-140 and I-485 concurrently, which gives them valid I-485 pending status. Please be aware that the concurrent filing option may not be available for nationals of India, China and perhaps other countries because of the visa backlog.

Q: Can H-1B employees take a long unpaid leave for personal reasons/family reasons/maternity reasons while still remaining a valid H-1B status?

A: Yes, H1-B employees may take long unpaid leave without having their status affected. Keep in mind that if leave is taken, one will not be paid. Furthermore, the employers may terminate employment at any time for any or no reason at all. If employment is terminated, the alien is out of H-1B status immediately. Contrary to a popular belief, there is no so-called “ten-day grace period.” However, as a rule of thumb in practice, an H-1B employee who is out of status for less than ten days would have a reasonable likelihood of having this out of status period disregarded by the USCIS. As a result, upon termination by the prior employer, the alien must file for a change of status as soon as possible.

Q: My employer's business has shrunk dramatically. As a result, he asked me to take 3-month unpaid vacation/leave and come back to work thereafter. Will I be considered to be out of valid H-1B status?

A: Yes, you will be considered to be out of status if your employer asks you to take unpaid vacation/leave. Moreover, the employer is considered to be “benching,” a violation of immigration law.

Q: What if my employer asks me to take vacation/leave, but still pays me full salary - will I be considered to be out of valid H-1B status?

A: In this scenario, you won't be considered to be out of valid H-1B status.

Q: What if my employer asks me to take vacation/leave, but pays me partial salar -, will I be considered to be out of valid H-1B status?

A: It depends on many things, including your employer's salary schedule, your overall compensation from your employer, etc. We suggest you to consult with experienced attorneys regarding this scenario.

Q: I am not in H-1B status and an employer has offered me a job. During the H-1B application process, may the employer revoke my job offer and terminate the H-1B process? If so, do I have any legal rights against the employer?

A: Your employer may withdraw both your job offer and your H-1B petition before your H-1B is approved. Unfortunately, you do not have any legal rights against your employer if, as in most cases, your employment is at will.

Q: I am in H-1B status now but have been laid off by my employer. How long is the grace period that allows me to keep legal status?

A: You do not have any grace period from the date that you are fired or laid off. In other words, you must file for change of status before your quitting or lay-off date. If you fail to do so, you may be out of status on the termination date. However, practically speaking, USCIS would likely disregard any out-of-status period less than 10 days.

Q: I am in H-1B status now. If I am laid off, what must I do if I want to remain in the U.S. ?

A: You may need to change to another non-immigrant status, such as an F-1, F-2, or H-4 status as soon as possible. As long as you file your change of status application in time, you will be allowed to remain in the U.S. while your case is pending.

Q: I am not in H-1B status and my employer submited the H-1B petition for me before the expiry date of my current status. My status has now expired but I still have not heard anything from USCIS regarding my petition. May I legally remain in the U.S.?

A: It depends on whether the H-1B quota was immediately available or not when your status expires. If the H-1B quota was available by then and the stating date on the H-1B application is on the date of your status expiration, you may remain in the U.S. legally. Otherwise, you will be out of status.

Q: While my H-1B is pending, may I legally work for my employer?

A: If you have never been in H-1B status before and you do not have another permit to work (such as OPT or EAD), you cannot work until the H-1B is approved. If you are doing an H-1B transfer and there is no H-1B quota issue existing, you may legally work for the new employer as soon as the new H-1B petition is filed with the USCIS.

Q:In what situations can an H-1B holder extend H-1B status after the end of 6 years (H-1B’s legal maximum period)?

A: There are only two situations in which an H-1B status holder can extend his/her visa status beyond the 6-year limit.

If the H1-B holder has filed either a Labor Certification application or an I-140 petition 365 days before the expiration of the six-year limitation, and the LC or I-140 process is still pending, the H-1B visa holder may extend his or her H-1B on an annual basis beyond the six-year limitation. There is no upper limit on total years in H-1B extension under such circumstances as long as the immigration process is still ongoing.

Example:

Mr. Park’s employer filed a PERM for him one month before Mr. Park reaches the 5th year anniversary of his H-1B. The PERM has been delayed due to auditing. Next month, Mr. Park is going to reach the final year of the 6-year limitation on his H-1B. Mr. Park’s employer may file an extension for Mr. Park now that extends his H-1B beyond six years.

Assuming Mr. Park’s PERM is approved before the sixth year anniversary of the H-1B and Mr. Park has filed his I-140 and I-485 and both case are pending, Mr. Park will be able to extend his H-1B.

If an H-1B visa holder has an approved I-140 petition AND the immigrant visa number is not available for him/her due to visa retrogression (and he/she is thus not eligible to file for an I-485), the H-1B visa holder may extend his/her H-1B on a three-year interval beyond the 6-year limitation. There is no 365-day requirement for this circumstance.

Example:

Mr. Wang is an engineer from China and he retained our firm for a PERM case when he only had about ten months left for his total six-year H-1B period. Our firm successfully received PERM approval within six months and filed his I-140 petition immediately. Due to the visa retrogression for Chinese nationals, Mr. Wang was unable to file his I-485 together with his I-140. Fortunately, his I-140 was approved within three months, exactly one month before he reached the six-year H-1B limitation. We filed an H-1B extension request for Mr. Wang based on the approved I-140, and received the H-1B approval for three years.

Dr. Rajeev from India filed his NIW I-140 petition through our firm about six months before he reached his six-year H-1B limitation. His I-140 was approved in three months. Dr. Rajeev is not eligible to file for an I-485 due to immigration visa number retrogression. Dr. Rajeev is eligible to extend his H-1B for three years based on his approved I-140.

Q: How can one resume H-1B status as if it were a brand new H-1B with another 6 year period?

A: The individual must depart from the U.S. for at least one year before qualifying again for H-1B status with another 6-year period. After the individual has departed from the US, s/he must undergo the same application process that was necessary for his/her first H-1B visa. This includes securing an employment offer, submitting Form I-129, getting approval of the petition, and applying for a visa with the US consulate in the country they are residing in.

Example:

Jen, an Indian citizen, has reached the limit on the number of years she can remain in the United States with her H-1B visa, but she wishes to work in the US for another 6 years. Jen therefore returns home to India for one year. After she has an employment offer, Jen’s employer must submit form I-129 and wait for approval of this petition, after which she can apply for a visa with the US consulate in India. Upon approval of her application, she may return to the US for up to 6 more years, provided her extension is approved after the first 3 years.

Q: Is there a relationship between applying for an H-1B and applying for an immigrant petition (Green Card petition)?

A: No, each is independent of the other. You may apply for a Green Card with or without an H-1B.

Q: May I submit an employment-based immigration petition before I obtain an H-1B?

A: Yes. An employment-based immigration petition does not require an H-1B petition. We have successfully helped many aliens obtain immigration petition approvals before they ever obtained H-1B status. Moreover, the filing of an employment based immigration petition does not preclude one from filing for an H-1B petition.

Q: May I obtain an H-1B if I have filed an immigration petition? Does an immigration petition affect my H-1B application?

A: An H-1B holder may have dual intent: both non-immigrant and immigrant intent. Therefore, the filing of an immigration petition, either an I-130 or an I-140, does not affect the status of an H-1B application.

Q: Does the Green Card petition sponsoring employer have to be the same employer as the one sponsoring my H-1B?

A: No.

Q: Should my H-1B title and salary match my Labor Certification application?

A: Not necessarily, since both petitions are filed independently. Your H-1B petition may be based on a salary at a bachelor’s degree level while your labor certification may be based on a master's degree education level.

Q: I am currently in B-1 status. May I obtain H-1B status?

A: Yes, if you satisfy the requirements for an H-1B visa. We have helped many B-1 visitors obtain H-1B status.

Q: I am in F-1 status and am not using my practical training period. May I obtain H-1B status?

A: Yes, if you satisfy the requirements for an H-1B. A practical training period is not a prerequisite to obtaining H-1B status.

Q: How do I know if my salary offer meets the prevailing wage requirement?

A: We recommend that you consult with an experienced immigration attorney who will be able to match your salary offer against USCIS’s accepted benchmarks. Z&A obtains prevailing wage information from two sources: a database maintained by the American Immigration Lawyers Association and the State Workforce Agency.

Q: How much experience does your firm have in handling H-1B cases?

A: Z&A has extensive experience with H-1B cases. The Firm has handled thousands of H-1B petitions since the firm was established more than 10 years ago and has a 99% H-1B approval rate.

Q: I am currently living in California, but your offices are only located at Houston, Chicago and New York. Can you handle my H-1B case?

A: Yes. Since immigration is based on federal law, Z&A attorneys handle US immigration cases anywhere within and outside the US by using the latest technology to provide professional services to our clients. Please click here to see the map of our clients' locations in the United States.

Q: I am in J-1 (exchange visitor) status. May I obtain H-1B status?

A: Yes, you may obtain an H-1B if you qualify for all of the requirements for an H-1B, provided that you are not subject to the two-year requirement.

Q: I am currently in J-1 (exchange visitor) status and subject to the two-year residence requirement. I do not have a waiver but would like to obtain an H-1B. What should I do?

A: We recommend that you consult with an experienced immigration attorney who may be able to offer some solutions based on your specific situation.

Q: Is the size of my company a factor in my H-1B petition?

A: No, the size of the company sponsoring your H-1B is not a factor to determine if the company can file an H-1B petition for you. However, two important factors that should be considered are whether your employer has a real business need for the position you fill and whether it is financially able to pay your salary when you start to work.

Example:

You have received a job offer from Company ABC, which has three employees. Company ABC is eligible to sponsor you for an H-1B so long as ABC has offered you a bona fide job and will have the financial resources to pay you the job's prevailing wage when you start to work.

Q: How do you define 'financial resources'? Is the company required to meet certain profit levels in order to be eligible to sponsor an H-1B petition?

A: No, the company does not need to be profitable in order to sponsor H-1B petitions so long as they have the cash flow or equity reserve to pay their employees.

Example:

XYZ is a dotcom that has not yet reached profitability. However, it has received $3M in investment funding and has a real business need for hiring a specific open positions. Although XYZ is not yet profitable, it is able to pay it’s employees using the $3M cash reserves and therefore is eligible to sponsor H-1B petitions.

ABC is an IT consulting company, it is not making profit right now. However, it has signed a contract with a client to work on an IT project starting October 1, 2007. The client will pay engineers from ABC $120/hour for the prospective job. ABC will be able to pay his new employees working on this project starting from October 1, 2007. Therefore, ABC is eligible to sponsor H-1B petitions.

Q: How much does it cost to apply for an H-1B petition?

A: An H-1B petition consists of two types of fees: filing fees and attorney fees. The filing fees are as follows: 1. $320 for base filing fee; 2. $500 for fraud prevention and detection fee; 3. $750 for an additional fee if the petitioner employs a total of no more than 25 full-time equivalent employees in the U.S. ($1,500 for an additional fee if the petitioner employs more than 25 employees) Z&A charges $1,800 in attorney's fee for an H-1B application. For the premium process, there is an additional fee of $100, which means that the total attorney fee for the premium process is $1,600. For more information regarding fee exemptions, please refer to our filing fees page.

Q: What are the merits and drawbacks of premium processing?

A: The merits of premium processing include receiving a decision within 15 calendar days of the receipt of the application by the USCIS. This means that you will receive a decision sooner and know about your application status sooner. However, once the quota is reached at the time of filing and the petition is subject to quota, the USCIS will reject the petition exactly as it does non-premium processing cases.
The drawback of premium processing is the steep $1000 fee. However, if USCIS does not process your application within the 15 calendar days, they will refund the employer for the $1,000 premium processing fee.

Q: Is the attorney fee for an original H-1B application and an H-1B transfer the same?

A: Yes. Z&A typically charges an identical attorney fee for either an original or transfer H-1B application since the amount of work required by the attorney is the same.

Q: If my employer petitions for an H-1B on my behalf, what should my spouse and children do?

A: Your spouse and children need to apply for H-4 status at the same time that you apply for H-1B status if they are in the U.S. and you would like to claim them as your dependents for non-immigrant status.

Q: Q: May I change from an H-1 status to an F-1 (student) status?

A: Yes, you may file a request for change of status with the USCIS after obtaining a complete Form I-20 from a USCIS approved school. Please note, however, if you have filed an immigration petition before, your F-1 application may be denied by the USCIS.

Q: My spouse is currently in H-1B status. May I change my status from H-1B to H-4?

A: Yes.

Q: What does the 'six-year H-1B status cap' refer to?

A: Generally, when an alien holding H-1B status has stayed in the U.S. cumulatively for six years, that alien is prohibited from further extending his/her H status. Instead, the alien is required to change to a non-H status or stay outside the U.S. for one year before reentering as an H status holder. However, in some situations, an H-1B holder can extend H-1B status after the end of 6 years. Please refer to Question 43.

Q: What is the difference between an H-1B status and an H-1B visa?

A: H-1B status is a non-immigrant status issued by the USCIS. An H-1B visa is a non-immigrant visa issued by a U.S. Embassy or Consulate abroad. Legal status allows you to stay legally within the U.S. while a visa allows you to enter the U.S. legally. Once you enter the U.S. using an H-1B visa, you become an H-1B status holder.

Q: I am currently living in the US in H-1B status and want to travel abroad. Can I obtain an H-1B visa to come back to the US while my green card application is still pending?

A: Yes. By law, an H-1B visa allows dual intent. Therefore, you can obtain an H-1B visa for reentry even if your PERM, I-140, or I-485 is still pending. In another words, your application of PERM, I-140 or I-485 should not be an issue when you apply for an H-1B visa in a US consulate abroad. As a caveat, however, there are always risks involved when traveling back to the home country for visits. Alternatively, if you are already in the I-485 pending stage, you may use Advance Parole for travel. That is why it is always good to consult an experienced attorney to have more safeguards.

Q: What is LCA? What’s the difference between LCA and LC (PERM)?

A: LCA stands for Labor Condition Application, which is part of an H-1B non-immigrant visa application process. LCA is filed with the US Department of Labor and it contains a series of attestations including, among others, an agreement to pay H-1B employees at least the "prevailing wage" for the offered position. In most cases, an LCA may be filed online and approval will be received within minutes.

PERM stands for “Program Electronic Review Management process”, and it is a process for applying for US permanent residency (Green Card). PERM is an entirely new procedure for the Labor Certification Application. In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the job market before filing the application. If no qualified and willing applicant (US citizen or Permanent Resident) is found through the recruitment process, the employer can submit the PERM Labor Certification. In most situations, the recruitment and application processes take around 5-6 months.

Also, it should be noted that the bar for applying for LCA is much lower than that of the PERM Labor Certification. Please refer to our PERM and LCA sections respectively for more detailed information.

Q: Can an H-1B employee go back to a college or graduate school for further study? Do they need to change their status from H-1B to F-1? Under what circumstances is it unnecessary to change their status?

A: An H-1B holder is allowed to go to school part time or full time without an F-1 as long as he/she currently holds a valid H-1B status. This means that while the H-1B employee is attending school, he/she must continue to work for his/her employer.

The H-1B employee will not be able to receive a teaching assistantship or compensation from his/her school, as that would require a change of status from H-1B to F-1. If the H-1B employee does not continue to work for his employer, he/she will lose H-1B status and must apply for a different status, like F-1.

Q: When an F-1 graduate is still in the OPT period, should he apply for H-1B? When should he apply for H-1B? What are the advantages and disadvantages of changing from F-1 to H-1B while the graduate still has months of OPT left?

A: If one is in OPT (optional practical training) and has received a job offer then he/she can apply for H1-B, as long as all the requirements of H-1B are met.

An advantage of the switching from F-1 to H-1B status may be that it will be easier for the alien to re-enter the US if he/she goes abroad with H-1B status because of the dual intent allowed for H-1B visas.

Another advantage of trying to switch from F-1 to H-1B status while still having a few months of OPT remaining is simply the certainty of maintaining legal status. Given that the H-1B cap for FY 2008 ran out on the first day of application (4/2/07), a timely switch from OPT to H-1B can give you peace of mind.

Example:

Karen from Thailand graduated in December 2006 when her OPT started. Without switching to H-1B, she can continue to work for a US employer until December, 2007. However, one may apply for an H-1B for the fiscal year 2008 on April 1, 2007. As the quota was reached on April 2 last year, it is Karen’s best interest to start applying H-1B early to avoid missing the quota.

Of course, keeping OPT while working for a US employer can bring you incredible flexibility. First, you can have multiple employers as long as the employments are related to your study area. By contrast, after switching to H-1B, the alien must work only for the H-1B sponsoring employer. Second, you may have more time to look for another job if you go through a sudden lay-off or shut-down if your OPT still has months left. By contrast, an H-1B employee will lose status immediately on the date of termination of employment, although USCIS often disregards a brief out-of-status period.

Examples

Ryan is an F-1 student in optional practical training (OPT). His OPT expires June 15, 2006, and he does not wish to apply for H-1B status currently, since it is only January 1, 2006. However, when his OPT expires on June 15, 2006 and he then applies for H-1B status, he will be informed that the quota was filled for the fiscal year 2006 and he will have to wait until next April.

John is an F-1 student in optional practical training (OPT). His OPT expires June 15, 2006. It is only January 1, 2006 and John is contemplating applying for H-1B status. He knows that the quota is usually filled up by May, so he decides to apply for H-1B status. His petition is approved and now he has H-1B status, instead of F-1 status. He is safe and sound.

Q: Can an H-1B beneficiary own a company? Can a foreign national own a company and file an H-1B petition for her own benefit?

A: Yes, an alien can own a company in the U.S. You do not need to be a US citizen or legal permanent resident to own a business in the US. However, whether an alien may work for her own company is another matter. You need authorization from the USCIS to work for any company including your own.

Your own company in some limited situations may apply for H-1B status for yourself. The USCIS will want to see evidence that the new company will be able to pay the H-1B worker at least the prevailing wage, as well business plans, a business lease, and other documents proving that it is in fact a real company.

It is noted that two key factors the USCIS will scrutinize are: 1) the ability to pay and 2) the real business need. Owning a company does not automatically mean you can work for it. In order to work at your own company as an employee, you still need valid work authorization to work in the US.

Examples:

Rodney is an MBA graduate, majoring in real estate development. He wants to start his own real estate development company in New York City and petition for himself as the H-1B beneficiary for the Project Manager position. He meets all the requirements to form a corporation in the State of New York, but in his savings account he only has $20,000. Since a real estate development project in New York City entails significant capital investment, obviously there is neither a real business need for having this position nor the ability to pay the prevailing wage required by the position. Rodney cannot petition for an H-1B for himself.

John is a geoscientist experienced in oil & gas exploration. Before he started his own consulting company, he worked as a geology consultant for his employer (a consulting firm) under H-1B status for several corporate clients. His normal rate was $100/hr. He set up his own consulting company and many corporate clients retained his consulting company for some work. Now he wants his own consulting company to petition for himself for a senior consultant position. For such a consulting company, there is a real need to have this position. Also, the known prevailing wage for this position in the area is $100,000/year. However, considering John’s prior hourly rate as a contractor and the consulting contracts that his company has with its corporate clients, he should have no problem to proving his company’s ability to pay.

Q: Can a person holding F-1 status start his or her company, and as the owner hire himself or herself as an H-1B employee?

A: Yes, an F-1 student can own his/her own company. Theoretically speaking, the bona fide company may sponsor the F-1 student as an H-1B employee.

The USCIS will want to see that the new company will be able to pay the H-1B holder at least the prevailing wage, and whether there is a real business need to hire this specific H-1B employee. Usually for an average F-1 student, these two factors are extremely difficult hurdles to overcome.

Example:

Rodney is a Ph.D. student in nuclear science under F-1 status. He heard from his friend John, a geoscientist, that he could own his own company and have it sponsor himself as an H-1B employee. He has followed the steps for the formation of a corporation and submitted an H-1B application to the USCIS, showing them that he is indeed starting a real business, one which would design a nuclear reactor. Even if he proves that his new company has the ability to pay the necessary salary for this position, it is extremely difficult to prove that there is a real business need because small companies like Rodney’s are simply unable to get business in the nuclear industry.

Q: I am currently in OPT (optional practical training) and received a part time job offer from a prospective employer. May I apply for a part-time H-1B visa?

A:Yes, provided you satisfy the other H-1B requirements.

Q: I am currently in OPT (optional practical training). What is the minimum number of hours that I am required to work in order to qualify for a part-time H-1B visa?

A: Generally, a successful part time H-1B can be based on a job requiring a minimum of 20-hours per week. If the part time job offer is for less than 20 hours/per week, you may still qualify for a part-time H-1B visa in some instances. We recommend you consult with an experienced immigration attorney.

Q: Q: I am currently in H-1B status but was recently fired. May I change my status to B-2 (tourist) to remain legally in the U.S ?

A: USCIS officers have been allowed to exercise their discretion to grant you another non-immigrant status if you apply for one within 10 days after you are fired. However, since the end of April 2002, the USCIS has begun to institute a zero tolerance policy. This means that if people are out of status, adjudicators will not be likely to exercise discretion to consider the status violation de minimis and approve the benefit being sought. In addition, you must prove your bona fide non-immigrant intent when you want to change your status to B-2. We recommend you consult with an experienced immigration attorney for this complicated matter.

Q: I am currently in H-1B status but was recently fired. May I change back to H-1B status once I get a job offer?

A: Yes, provided you have valid status. Your pending change of status qualifies as valid status. If you have been laid off only for a short period of time, and even if you have not filed for change to another status, you may still try to file a new H-1B transfer application. USCIS may use its discretionary power to grant you a new H-1B.

Example:

Mr. Lin filed his change of status from H-1B to H-4 a week before he was fired. When his change of status case is still pending, a new H-1B petition can be filed on behalf of him.

Q: I have an H-1B from my employer who has laid me off. Now I am in the process of changing to an F-1 (student) status. My H-1B I-94 has not expired yet. May I work for my former employer if I am offered the same position again before the expiration of my H-1B I-94?

A: If you have been laid off, your H-1B is no longer valid even though you have a valid H-1B I-94. If your former employer offers you the same position as before, you need to apply for the H-1B again.

Q: I have an H-1B from my previous employer, who did not cancel the H-1B after I quit my job and started to work for another employer under a new H-1B filed by the new employer. Can I go back to work for my previous employer without filing an H-1B again?

A: Yes.

Q: How does USCIS calculate an alien's H-1B length of status?

A: The total amount of time or length of status under an H-1B is the cumulative time that you have worked for all your employers under an H-1B status. The time you stay out of the U.S. can be deducted from your H-1B maximum length limitation.

Q: I am currently in F-2 status. May I apply for an H-1B? Should I change into F-1 (student) status first and then apply for an H-1B?

A: Yes, you may apply for an H-1B if you satisfy all H-1B requirements. You do not need to change into F-1 status.

Q: Is there an annual limit on the number of H-1B aliens?

A: The cap is currently set for 65,000. There are 20,000 additional quota spaces for U.S. advanced degree holders.

Q: Who is eligible for the Premium Processing program?

A: Premium Processing services are available to those employers who file a Form I-129 to classify a beneficiary under one of the following categories: E-1, E-2, H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, TN, R, and Q-1.

Q: What is the Premium Processing fee?

A: The fee for this service is $1000. The Premium Processing fee may not be waived. In addition to the Premium Processing fee, all filing fees related to the Form I-129 (Petition for Non-immigrant worker) must also be submitted. The Premium Processing fee must be submitted in a separate check or money order.

Q: Where is an H-1B petition filed?

A: Starting on April 1, 2006, all H-1B applications should be filed with the Vermont Service Center. The Vermont Service Center may transfer some cases to the California Service Center.

Q: How do I contact the service center concerning the Premium Processing request that I filed?

A: The Vermont Service Center has a different mailing address for Premium Processing than it does for regular cases, as indicated in the instructions for Form I-907 (Request for Premium Processing). Additional contact information for the Vermont Service Center will be provided to you on your receipt notice.

Q: How do I file a Request for Premium Processing?

A: You should complete and sign the Form I-907, Request for Premium Processing service, and submit this to the service center with a separate check for $1000. The I-907 should be sent to the Vermont Service Center, where your I-129 (Petition for Non-immigrant worker) is either currently pending or being filed. Be sure to send the forms to the address specifically designated as the Service Center's Express Mail Address.

Q: I was laid off by my employer, but the expiration date of my H-1B status (as stated on my I-94 card) is in next year. Am I still in valid H-1B status?

A: No. Your H-1B status is tied with your employment. Thus, after your employment was terminated, you were no longer in valid H-1B status, even though your I-94 is still valid until next year.

Q: I received a termination letter from my employer notifying me that I will be laid off at the end of this month, but he will give me one month extra pay until the end of next month. When will I be considered no longer in valid H-1B status?

A: You are considered no longer in valid H-1B status when your employment terminates, which in this case, is the end of this month. The fact that your employer will give you one month extra pay until the end of next month doesn't change the time of termination of your employment.

Q: I heard that after being laid off, an H-1B holder has 10 days to change to other status, is that true?

A: Strictly speaking, no. The USCIS has made it clear that there is no such 10-day grace period. In addition, the USCIS has enforced a so-called "zero tolerance" rule after the 9.11 terrorist attacks, which declares that H-1B status holders are officially out of valid status at the time of termination of their employment.

Q: I am an H-1B holder. What if I still stay in the U.S. after being laid off by my employer? Are there any negative consequences?

A: If you remain in the U.S. after being laid off, your future application for change of status to other non-immigrant status or application for adjustment of status may be denied for that reason. The longer you stay, the slimmer the chance will be in the future for you to successfully change to any other status or adjust your status.

Q: I have already filed for an I-485 (adjustment of status). Do I still need to keep my H-1B status?

A: You might want to consider extending your H-1B because if your I-485 adjustment is denied you will be immediately out of status.

Q: How do I keep my H-1B status if my I-485 is pending and I want to travel abroad?

A: There are two ways to keep your H-1B status after traveling abroad: First, you can obtain an H-1B visa from a U.S. Consulate in a third country or from a U.S. Consulate from your home country and come back to the US on the H-1B visa and work for your H-1 sponsoring employer. Secondly, if you travel back to the US with Advanced Parole, you may continue working for your H-1B employer and you can request H-1B extension or change of employer later.

Q: Do I have to apply for Advance Parole to travel abroad if I am in H-1B status and I have filed for an I-485?

A: No. You can come back to the U.S. with an H-1B visa while your I-485 is still pending. But we suggest you apply for Advance Parole before you leave the U.S. If for some reason you cannot obtain an H-1B visa overseas, you can come back with the Advance Parole.

In addition, when you use an H-1B visa to come back, you must continue working for the H-1B sponsoring employer to keep your I-485 case pending.

Q: What is my status when I come back to the U.S. with an Advance Parole?

A: You are in parolee status. But you can still work for the former H-1B sponsoring employer without an EAD card. After you file an H-1B extension or change of employer, your parolee status will be stopped and you will be back to H-1B status again.

Q: What is my status when I come back to the U.S. with an H-1B visa?

A: You are in H-1B status and your I-485 Adjustment of Status case is still pending.

Q: If I have an I-485 case pending and I go abroad without an Advance Parole, but come back to the U.S. with an H-1B visa and keep working for my former H-1B sponsoring employer, can I change employers later and file an H-1B transfer?

A: Yes.

Q: I have an I-485 case pending. I am currently using an H-1B to work for my primary employer, but am also using an EAD card working for another employer part time. Am I still in H-1B status?

A: You are no longer in H-1B status. But you can use an EAD card to work for both employers. Once you use the EAD card, your only status is based on your pending I-485 adjustment of status case.

Q: My I-485 is pending and I am in H-1B status. Can I still maintain my H-1B status?

A: Yes.

Example:

Sally is applying for both an EAD (employment authorization document) and Advance Parole. She may still maintain her H-1B status. Applying for an EAD or an Advance Parole does not affect your H-1B status. For details, please click here .

Ben is using an EAD (employment authorization document) to work for one employer and his H-1B to work for his H-1B sponsoring employer. Ben is NOT in valid H-1B status since he has filed a claim for the I-485 and used its accompanying benefits (EAD).

Julia would like to use her advance parole to come back into the U.S. after a short trip abroad and continue working for her H-1B sponsoring employer. Even if Julia uses her Advance Parole to come back into the U.S. without a valid H-1B visa, she can continue to work for the H-1B sponsoring employer. Technically, she is in I-485 pending status. After an H-1B extension is filed, she will be back in H-1B status.

John's spouse is currently in H-4 status and has also applied for an I-485 as a derivative beneficiary of John's immigration petition. John's spouse uses Advance Parole to re-enter the U.S. after a short trip abroad. Since John still has a valid H-1B status, John's spouse will keep her H-4 status.

For more information on H-1B Visa, please refer to the following topics: