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Frequently Asked Questions and Answers about H-1B Visa/Status and H-1B Application

Q: What are the requirements to get H-1B? A: The H-1B is a nonimmigrant classification used by a foreign worker who is employed temporarily in a specialty occupation. The H-1B visa is issued to non-immigrant workers in specialty occupations. Essentially, these are all professional level workers - people working in jobs that require at least a bachelor's degree as a minimum entry requirement. This category allows such workers to be employed for up to six years. Therefore, you must have the U.S. equivalent of a Bachelor's degree in a specialized subject, such as computer science, economics etc., and the job must require such specialization. There must be an U.S. employer who is willing to sponsor you, i.e. the employer offers you a job, and the job is a specialty occupation, which is the one that requires at least a bachelor degree in the relevant field. Q: What is a specialty occupation? A: A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations. Q: How does the USCIS determine whether a job is a "specialty occupation" for H-1B purposes? A: When determining whether a specific position is a "specialty occupation", the USCIS will look into the job title, the job duties to be performed by the foreign worker, and the complexity of the business, etc. It is not enough that an employer requires bachelor's degree for a specific position. Pertinent laws set some objective standards for determining whether a specific occupation requires a bachelor's degree for entry into the occupation. USCIS will examine whether a job is qualify as a specialty occupation, according to the following criteria: 1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for the entry into the particular position; 2) Degree requirement is common to the industry in parallel positions among similar organization or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; 3) The employer normally requires a degree or its equivalent for the position; or 4) The nature of specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. Q: How do I know whether my job is a "specialty occupation"? A: While some occupations are clearly "specialty occupations" as defined by laws and regulations, others are not so clear and the USCIS will make a decision on a case-by-case basis. For some professions such as computer programmer, general manager, librarian, consultant, designer, etc., determination of "specialty occupation" is a complicated process, and many factors should be considered. Q: What is the H-1B quota and why there a quota? A: The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Financial Year which begins on October 1. Applications for the upcoming Financial Year are accepted beginning on the preceding April 1 (or the first working day after that date).  Those beneficiaries not subject to the annual quota are those who currently hold H-1B status or have held H-1B status at some point in the past six years and have not been outside the United States for more than 365 consecutive days. This annual quota has had a significant impact on the high tech industry. It has generally been set at 65,000 visas per year, with some exceptions for workers at exempt organizations like universities and non-profits. In 2000, Congress permanently exempted H-1B visas going to Universities and Government Research Laboratories from the quota. Q: How many new H-1B visas are available for each fiscal year? A: Currently, the new H-1B visas available for each fiscal year are 65,000. In addition, 20,000 foreign workers who obtained advanced degree (MS and up) in the U.S. are exempted from the 65,000 cap. If an alien applicant has obtained an advanced degree in the U.S., the alien applicant can use the additional 20,000 H-1B visas for advanced degree professionals. Q: What cases are subject to the H-1B annual cap?  A: Individuals who have never held H-1B status before are subject to the cap. They need to have their cases counted against the cap, unless the cases are being filed by a cap-exempt employer. Individuals who have previously held H-1B status generally would not be subject to the cap, even if they have held some interim status, such as F-1 or H-4. However, this would not be the case if their prior H-1B approvals were cap exempt. Q: When can the H-1B cap petitions be filed?  A: The lesson that should be clear from the past years is that it is best to file H-1B cap cases on April 1st. The USCIS permits H-1B cases to be filed by more than one potential employer on behalf of a single foreign national. However, it is not permissible to have a single employer file multiple H-1B petitions for the same beneficiary in an effort to increase one's chances in the lottery.  H-1B petitions filed by cap-exempt employers may be filed at any time during the fiscal year, depending only on the needs of the employer and the availability of the potential employee. Q: Which foreign nationals are affected by the H-1B visa cap? A: Foreign nationals in other non-immigrant statuses such as B, F, J or H-4 who request a change of status to a first time H-1B are affected by the H-1B quota. Additionally, managers, recruiters, and human resource departments planning to bring a foreign national from overseas to work in the United States on an initial H-1B visa should also be concerned about the H-1B cap. Q: Which foreign nationals are not affected by the H-1B visa cap? A: Foreign nationals currently in H-1B status who need to file an extension or change of employer are not affected by the cap on H-1B numbers. Further, foreign nationals seeking employment through institutions of higher education, nonprofit research organizations, and government research organizations are not subject to the cap. Physicians previously in J-1 status who have agreed through a state health department to work in underserved areas (HPSAs or MUAs) in exchange for waiver of the J home residence requirement are also not subject to the numerical limitation. Q: What kind of educational institutions can be H-1B cap exemption? A: U.S. Citizenship and Immigration Services (USCIS) exempts individuals working at certain organizations from the annual H-1B cap. Specifically, the exemption applies to anyone employed at an institution of higher education; a related or affiliated nonprofit entity; a nonprofit research organization; or a governmental research organization. According to statutes enacted by U.S. Congress, an institution of higher education is defined as an education institution in any State that: 1) admits only those students that have graduated from high school or the equivalent; 2) authorized within such State to provide a program of education beyond high school; 3) able to award a bachelor's degree or provides at least a 2-year program for full credit toward such a degree; 4) is a public or other nonprofit institution; and 5) is accredited by a nationally recognized accrediting agency or association, or has a pre-accreditation status, and can meet the accreditation standards within a reasonable time. Q: How can you help me for my H-1B visa application? To help you apply for or renew your H-1B visa or status easily and quickly, we provide the high quality and case proved "Complete Do-It-Yourself Package for H-1B Visa/ Status Application", based on our extensive and practical employment visa experience. As added value in the Complete Do-It-Yourself Package for H-1B Application, we provide comprehensive instructions on U.S. visa application requirements and processing, and we also let you know step-by-step H-1B application procedures, and how to obtain prevailing wage determination, how to receive a Labor Condition Application from Department of Labor, how to apply for H-1B status as a F-1 or J-1 student, and how to submit a complete H-1B petition to USCIS. We also provide sample cover letter, sample of filled forms, petition check list, prevailing wage request methods, detailed description of H-1B annual cap and its exemption, detailed sample case analysis, various questions and answers for H-1B application and beyond, and all required forms. Q: I obtained a Masters Degree from a Canadian university, can I use the additional 20,000 H-1B visas for advanced degree professionals? A: No. The additional 20,000 H-1B visas are only granted to foreign workers who obtained advanced degree in the U.S. Q: I am currently in H-1B status, am I subject to the annual cap if I change employment and my new employer files an H-1B petition in my behalf? A: No, current H-1B workers are not subject to the annual cap. Q: Who can file H-1B petition for a foreign worker? A: H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file a petition with the Bureau of Citizenship and Immigration Services (USCIS). A H-1B petition must be filed by a U.S. employer. The U.S. branch or subsidiary of a foreign company is considered as a "U.S. employer" for H-1B purposes, if its U.S. entity meets the following requirements:  1) it engages a person to work within the U.S.; 2) it has the authority to hire, pay, fire, and supervise employees; and  3) it has an IRS Tax ID Number, also known as Employer ID Number (EIN). Q: What is the definition of United States Employer, to hire H-1B workers? A: The employer is the official petitioner of the H-1B, and must be a "United States Employer" or its agent. The definition of a U.S. employer is a "person, firm, corporation, contractor, or other association, or organization" in the U.S. The employer must also  1) seeks the service of the person as specified in the petition process,  2) has or will have an employer-employee relationship with the person, and  3) has a U.S. Internal Revenue Service tax identification number.  A foreign entity may file a petition to employ an H-1B worker in the U.S., if it has a U.S. "branch office" and has the requisite tax identification number. Q: Can we speed up the processing of the H-1B visa? A: Yes, you can speed up the processing of the H-1B visa, and the sponsoring employer can file Form I-907 for premium processing with a filing fee. Once filed, USCIS guarantees an answer, whether it be an approval, request for additional evidence, or denial, within two weeks. However, USCIS may look at the application more closely when this type of processing is requested. Q: My friend filed an H-1B visa petition the same time I did and his case was already approved. Why is mine taking so long? A: Each USCIS Service Center has different processing times. The processing times can further depend on the USCIS agent assigned to your case, the type of employment or employer, and the documentation presented with the case. Q: My H-1B visa was approved and now I need to get my H-1B visa stamp. What do I need to take with me for visa stamping? What about my dependents? A: Take a copy of the entire H-1B visa application filed by your employer on your behalf. You should also take your three most recent pay stubs, W-2 if applicable, and a short letter from your employer stating your job title, duties, and current salary. Your spouse should bring your marriage certificate (to show your relationship). Also bring your child's birth records, listing you as the parent, for H-4 dependent visa stamping. Q: My H-1B visa was approved through my United States employer, but I am currently abroad. Do I have to enter the U.S. on the start date listed on my H-1B approval notice? A: No, you can enter the U.S. any time on or after the start date on your H-1B approval notice, as long as you have obtained an H-1B visa stamp in your passport. Q: How long can someone stay in the U.S. on my H-1B visa? A: It is possible to stay in the U.S. on an H-1B visa for up to six years total. The initial H-1B visa should be approved for three years and then the person is eligible for another three-year extension. Q: Can someone stay beyond the six years allowed by an H-1B visa? A: Yes, there are options for staying beyond six years in H-1B visa status. You are able to recapture any time you spent outside the U.S. while on an H-1B visa once you have been in the U.S. for six years. The employer can also file an immigrant visa on your behalf or you can leave the U.S. for a consecutive year and then your six-year clock will restart. This is highly dependent on your specific case and should be reviewed in depth with an attorney. Q: Exactly when does the six years' time on my H-1B visa start? and how do I know when my H-1B visa is expiring? A: The time on your H-1B visa starts the day you change visa status to H-1B, or if initially abroad, the first time you enter the U.S. using your H-1B visa stamp. The H-1B visa stamp in your passport contains your H-1B visa expiration date, as well as your white Form I-94 entry/exit card, which shows the date you last entered the U.S. and an expiration date. Q: How soon before my H-1B expires can my employer renew my H-1B visa? and can the foreign applicant pay the H-1B filing fees? A: You can renew your H-1B visa six months before expiration. The employer must pay the H-1B filing fees, as the petitioner. It is illegal for the immigrant to pay his or her own H-1B filing fees. Q: I have been laid off or terminated by my H-1B employer, am I out of status? Answer: Yes, if you are no longer employed by the employer who petitioned for your H-1B visa, and are not being paid by that H-1B employer, you are out of status. You should look for other employment with an employer who can petition for your H-1B transfer. When you transfer your H-1B employment to a new employer, USCIS will request pay statements, so the sooner you find another H-1B employer, the better. This way there is little to no gap in your employment. Q: When can I travel outside of the United States? A: You must have an approved H-1B visa to travel outside of the Untied States. If your H-1B visa is still in process, and you are in the U.S., you are encouraged not to travel. If you do so, you will have to wait outside of the U.S. until your H-1B visa is approved. Q: My H-1B visa was approved, and I am in the United States. Do I have to travel to my home country to obtain my H-1B visa stamp? A: No, you do not have to travel to your home country for H-1B visa stamping, however it is encouraged. You can go for H-1B visa stamping in another country, but you should be prepared to answer additional questions from the Consular Officer, as it is not your home country. Q: How many times can I transfer my H-1B visa status? A: You can change H-1B employers as many times as you would like. There is no limit. Q: What kind of employers are the "H-1B Dependent Employers"? A: The H-1B legislation requires certain employers, called H-1B dependent employers to advertise positions in the U.S. before petitioning to employ H-1B workers for those positions. For firms of 50 employees, an H-1B dependent employer is defined as having more than 15% of their employees in H-1B status. Smaller firms are allowed to have a higher percentage of H-1B employees before becoming 'dependent'. Q: What is Labor Condition Application (LCA)? A: H-1B petitioning employer is required to file a Labor Condition Application (LCA) with the Department of Labor (DOL) attesting to a number of items, including payment of prevailing wages for the position, and the working conditions offered. The LCA must be certified by DOL before the H-1B petition is filed with USCIS. Q: How long can an alien be in H-1B status? A: Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. However, there are a few exceptions to the six-year limit, which allow a foreign worker to extend their H-1B status beyond six years. Q: How to extend H-1B status beyond the six-year maximum period? A: A foreign worker can obtain an extension of H-1B status beyond the six-year maximum period if he or she meets one of the following conditions: 1) The 365 days or more have passed since the filing of a Labor Certification (Form ETA-9089), or an employment-based immigrant petition (Form I-140) if Labor Certification is not required; or 2) An employment-based immigrant petition (Form I-140) has been approved but due to the retrogression of priority date, the foreign worker is unable to obtain Green Card. Q: How can I extend H-1B status for one (1) year at a time beyond the six-year maximum period? A: You will be able to extend H-1B status in one-year increments beyond the six-year limit if your Labor Certification application (Form ETA-9089) or your employment-based immigrant petition (Form I-140) has been pending for 365 days or more. Therefore, to be eligible for the one-year extension at a time, a  Labor Certification application or I-140 petition must be filed before the H-1B reaches the 6th year. Q: How can I extend H-1B status for three (3) years at a time beyond the six-year maximum period? A: You will be eligible to extend H-1B status in three-year increments beyond the six-year limit if your I-140 petition has been approved, but you are unable to Form I-485 to obtain Green Card, due to the retrogression of priority date. Q: Who can an H-1B alien work for? A: H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. H-1B aliens may work for more than one U.S. employer, but must have an I-129 petition filed by each employer. Q: What if the alien circumstances change? A: As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change employers without affecting status, but the new employer must file a new I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer business will not affect the alien status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation. Q: Must an H-1B alien be working at all times? A: As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.   Q: What is H-1B visa's "dual intent"? Can an H-1B alien intend to immigrate permanently to the U.S.? A: Unlike other non-immigrant visas such as F and J that do not allow immigrant intent, H-1B visa has dual intent, which among other things, allows filing of immigrant applications without affecting their non-immigrant status. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (PR) status without affecting H-1B status. This is known as "dual intent", and has been recognized in the immigration law since passage of the Immigration Act of 1990.  Q: Can an H-1B employee work for more than one employer? A: Yes, H-1B workers may work for more than one U.S. employer, but each employer involved must file an H-1B petition and the petition must be approved. Q: Can I change H-1B employer? A: Yes, you may change H-1B employers and at the same time keep you H-1B status, but the new H-1B employer must file a new H-1B petition for you properly before you begin working for the new employer. Q: I am currently in H-1B status and will change employer. When can I work for the new employer? A: According to the H-1B portability rule, you can start to work for the new employer after your new employer properly files the H-1B petition in your behalf. You do not need to wait till the new H-1B approval to change your employment. For more information about H-1B portability, please read our special section on H-1B Portability Issues Related to Change of Employer. Q: I am in F-1 status and have filed immigrant petition, can I change status to H-1B? A: Yes, you may change status to H-1B even after you filed immigrant petition. Although H-1B is a non-immigrant visa, it allows immigrant intent and an H-1B petition cannot be denied on the immigrant intent basis. Q: Must I work at all times to keep my H-1B status? and  is a part-time worker eligible for H-1B? A: As long as the employer/employee relationship exists in compliance with the H-1B requirements, you are in valid status. Just like other workers, you may be on vacation, sick or maternity leave, or otherwise inactive without affecting your status. A foreign H-1B worker can also work part-time, but the work hours must be specified in the H-1B petition. Q: I am in H-1B status. Due to not enough workloads in the company, can I work part-time?  A: Yes, you can. The part-time H-1B option offers flexibility that may assist the employer during times when workloads are reduced or variable. Individuals may find that it provides an option for maintaining status and opens a number of options for employment, other than the full-time, single-employer model.  While most H-1B workers hold full-time positions, the H-1B forms and procedures allow for the possibility of part-time employment. This provides a number of options and variations, including the possibility of holding both a full-time and part-time job, working multiple part-time jobs, or simply working part time. Q: After 2 years as a H-1B visa holder, I got a new and better job offer chance. I want to use the H-1B portability rule to change employer when the new H-1B application is pending. Are there risks of using H-1B portability in this way?  A: The H-1B portability rule is stated in American Competitiveness in the Twenty-First Century Act of 2000 (AC-21), an H-1B holder can change the employer and start to work for a new employer on the date that the USCIS receives the H-1B transfer petition submitted by the new employer on behalf of the H-1B holder.  In order to qualify for the H-1B portability, an H-1B holder must be an individual: 1) who has been lawfully admitted into the U.S.; 2) on whose behalf an employer has filed a petition for new employment before the date of previous H-1B status expiration; and 3) who has not been employed without authorization previously in U.S.  The risk in using H-1B visa portability is that the new H-1B application could be denied. This is especially true in a climate where the USCIS is scrutinizing H-1B applications closely, as well as changing their standards and expectations as to the proof needed to meet the legal requirements for H-1B applications.  If you rely upon a pending H-1B application to stay in the United States and work, the denial of the H-1B petition normally means that you will be out of status. This will create significant problems for you. The best way to avoid the risk of falling out of status due to reliance on H-1B portability is to avoid using the H-1B portability. Therefore, you should go from approval to approval, and not depend solely on the pending H-1B application. This is often possible when using the premium processing service to expedite the processing of the new employer's H-1B application. Q: What is the taxation status of H-1B workers? A: H-1B workers are legally required to pay the same taxes as any other U.S. resident, including Social Security and Medicare. Almost any person who spends more than 183 days in the U.S. in a calendar year is a tax resident and is required to pay U.S. taxes on their worldwide income. The exceptions to this rule are very few in number; they include the case of students on F-1 and people who would like to leave the U.S. but are prevented from doing so by a medical problem. From the IRS perspective, it doesn't matter if that income is paid in the U.S. or elsewhere. If an H-1B worker is given a living allowance, it is treated the same by the IRS as any other U.S. resident. Q: What is the H-1B employment requirement for for the petitioning U.S. employer? A: According to the USCIS, H-1B aliens may only work for the petitioning U.S. employer, and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules of DOL are followed.  H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer. Enforcement of these rules depends upon the employee, however. The Department of Labor has neither the authority nor the manpower to investigate violations of these rules unless and until a complaint is made. Q: In addition to H-1B visas, What re the other worker's visa available? A: In addition to H-1B visas, there are a variety of other visa categories which allow foreign workers to come into the US to work for some period of time. L-1 visas are issued to foreign employees of a corporation. Under recent rules, the foreign worker must have worked for the corporation for at least one year in the preceding three years prior to getting the visa.  An L-1B visa is appropriate for nonimmigrant workers who are being temporarily transferred to the United States based on their specialized knowledge of the company's techniques and methodologies. An L-1A visa is for managers or executives who will either manage people or an essential function of the company. There is no requirement to pay prevailing wages for the L-1 visa holders.  Q: What is the registration requirement for online H-1B Labor Condition Application A: Beginning from 10/1/2008, employers and their representatives will not be able to file and obtain certification of the Labor Condition Applications for H-1B, H-1B1, and E-3 Nonimmigrants, ETA 9035E unless the employer and the representative first file and complete registration online. Registration may not take too much time, but some employers and representatives may need extra time.  Q: What is the USCIS Premium Processing Service?  A: By filing Form I-907 and paying a fee of $1,000, an employer may request to have certain petitions, including H-1B petitions, reviewed within 15 calendar days of filing. This fee is in addition to the normal H-1B filing fees that must be paid.  Premium processing can greatly assist in obtaining a prompt decision in a H-1B petition. However, it does not increase one's chance of acceptance in any lottery of cap-subject filings. It also does not permit a start date of employment or cap-subject cases of any earlier than October 1 of that year. Q: How could the H-1B aliens who return to the U.S. using Advance Parole will be able to resume the employment authorization which is inherent in the H-1B status? A: The current rule is that the H-1B aliens who return to the U.S. using Advance Parole will be able to resume the employment authorization which is inherent in the H-1B status, if as the following conditions are met:  1) The employment is resumed with the same H-1B employer,  2) The H-1B approval must remain valid, even though one does not need a valid H-1B visa stamp. Q: How does the USCIS know whether the job requires a bachelor degree? and how long can a person in H-1B status? A: It is usually based on industry standard and some publications, such as The Dictionary of Occupational Job Titles. The H-1B workers must be paid the prevailing wage. The H-1B can be initially for three years and can be renewed for another three years. After six years, it can be renewed one year or three years a time under certain conditions. Q: How many H-1Bs can I apply at the same time? Can two employers file H-1B petitions for the same beneficiary at the same time? A: Yes, the person must maintain at least one H-1B status and most people only maintain one H-1B at a time. But the law does not preclude you to maintain two H-1Bs at the same time. One can be a full-time job and the other can be a part-time job. Q: Currently, I am in practical training status. When is the best time to apply for H-1B? A: After you go to work for a while and you get familiar with the environment, you will have an idea as to whether you want to stay or not. It is always better to apply as early as possible. There are two reasons for this. First, once you get your H-1B, it is much easier for you to change job. Second, due to the change of the law, you do not have to worry about the six-year limit for H-1B. Q: What materials and documents do I need to file the H-1B by myself? and how long does the process take to get the H-1B approved? A: Your employer needs to provide some basic information regarding the company and the position offered to you, and your have to prepare basic information and documents about yourself, such as diploma, resume, passport and I-94, etc. You need to fill  the required forms and your employer has to review and sign the papers. It usually takes two to three months to obtain an H-1B status approved by USCIS, provided the H-1B quota has not been filled. Q: What standard is used by USCIS in adjudicating the H-1B, and what is the percentage of being approved? A: USCIS will see whether the position is a specialty occupation, i.e. whether it requires a bachelor degree, and whether the beneficiary has the required degree, or its equivalent, and whether employer has the work for the beneficiary to do, and whether it has the financial ability to pay the beneficiary.  In practice, it mainly depends on the employer's situation. The larger the employer and the higher the salary, the more likely the application gets approved. The rejection rate is low. Even very small and new employers can successfully file H-1B petitions. Q: What are the employer exemptions from the "additional fee"? A: The employer exemptions from the H-1B application "additional fee" includes several situations:   Nonprofit entity engaged in "established curriculum-related clinical training of students"; Primary or secondary education institutions; Any employer who is filling for a second extension of stay for an H-1B nonimmigrant; Non-profit or governmental research organizations; Institutions of higher educations and related or affiliated non-profit organizations. Q: The Qualification Requirements of Employment Authorization (EAD) for H-4 Spouse A: U.S. Citizenship and Immigration Services (USCIS) has announced that after May 26, 2015, Employment Authorization (EAD) will be issued to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (Green Card) status. Therefore, qualified H-4 dependent spouses can accept employment in the United States. USCIS believes that extending the eligibility for employment authorization to certain H-4 dependent spouses of H-1B visa holders is one of ways to improve U.S. visa programs and grow the U.S. economy, and it also provides more economic stability and better quality of life for the affected H-1B families. The eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:     * Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or     * Have been granted H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21) - the Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the 6-year limit on their H-1B status. The change will reduce the economic burdens and stresses that H-1B visa holders and their families may have, during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into the society of United States. It will also help their efforts to remain in the U.S., with minimized disruptions to U.S. businesses employing them.  The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers. Q: How to Qualify the H-4 Spouse Requirement for Work Permit (EAD)? A: One eligibility of Employment Authorization (EAD) for H-4 visa spouse is based on the Form I-140 approval by U.S. Citizenship and Immigration Services (USCIS), It is required that the H-1B spouse is the beneficiary of an approved immigrant petition based of I-140 Form. The approved I-140 petition for the H-1B visa holder can be in any employment-based category, such as employment-based first preference (EB1), second preference (EB2), or third preference (EB3) categories. With an approved USCIS Form I-140 for H-1B visa holder, there is not other requirements from USCIS, such as how much time the H1B worker or H-4 spouse have spent in U.S., or how lang the I-140 petition has been approved. Another eligibility of Employment Authorization (EAD) for H-4 visa spouse is based on the H-1B spouse's status extension beyond 6-years. If the H-1B visa holder has obtained an H-1B extension beyond the 6-year limit, based on the AC-21 rule, the H-4 spouse is also eligible to apply for an Employment Authorization. The AC-21 rule allows some H-1B visa holders to extend their status beyond the 6-year standard limit in one-year increments.:     * First, an H-1B worker can extend the visa if the worker is the beneficiary of an approved Form I-140 immigrant petition, and cannot file an Form I-485 Green Card application because the worker's priority date is not current.     * Second, an H-1B worker can extend the visa if a U.S. employer filed a Labor Certification application (a PERM) or an I-140 petition on the worker's behalf prior to the beginning of the 6-year in H-1B status, as long as that application/petition is still pending, and is at least 365 days prior to the end of the sixth year of H1B status. The eligibility for these one-year extensions is based on the H-1B spouse being the beneficiary of either a PERM labor certification (PERM) application or an Form I-140 immigrant petition that was filed at least 365 days prior to the end of the 6-year of H-1B status. It is not necessary for the PERM Labor Certification or the Form I-140 to have been approved to extend their status beyond the 6-year standard limit in one-year increments. But, it is necessary for either the PERM Labor Certification or I-140 to still be pending, meaning not having received a final denial or revocation decision. Q: My husband is a PhD student, and I am in United States with F-2 visa. Currently, a local company wants to hire me as a technician, can I apply for H-1B and work for the company? A: Yes. you can change your non-immigrant F2 visa to H-1B visa, and work for the company. Your current F-2 visa status can be changed. Q: To save money, can I applying for H-1B visa by myself ? and can I work before the H-1B approval is granted? A: Get an H-1B should be straightforward, but you need to know the various rules and procedures. A lot of people do succeed in obtaining H-1B visa by themselves. Until the USCIS approves the petition and the non-immigrant status has been changed, any work by a non-immigrant will be considered unauthorized. Q: Can I apply for both H-1B and Green Card at the same time? A: Yes, you can do either or both. Q: I am applying for H-1B visa, will USCIS deny my application if I apply under the category of MS when I actually hold a Ph.D.? A: Your application is fine if you employer indicates on the application that the offered position requires an MS. The fact that you possess a higher academic degree than what is required to fulfill the position has no impact on your application. Q: My application for PR (I-140) is pending while my practical training period is almost over. Do I still need either work authorization or H-1B visa in light of my PR application? A: Yes. Your application for PR (Green Card ) is irrelevant to your current non-immigrant visa status, and you need to maintain your legal status at all times. Q: I have filed an application for change of status (I-485). My H-1B visa will expire next month. Do I need to file for an extension of H-1B? A: You should file for an extension of H-1B immediately. USCIS should expedite your request under these circumstances. Q: How much does it cost to hire a lawyer for an H-1B visa? A: Anywhere between $1500-$3500. Q: Having H-1B visa with one company, can I work for another company for a part time job? A: Yes you can, but you have to get another H-1B visa for the second employer. Basically, you can hold more than one H-1B visa at the same time. Q: During the process of my H-1B visa, if I get a better job offer, can I take that job? A: Yes, You can take that job, but you need to apply for a new H-1B. Q: I am coming up on the second three-year extension on my current H-1B visa. If I change employer three months into the extension, will I be able to use the remaining two years and nine months with another employer on a new H-1B ? A: Yes you will, but you have to get a new H-1B visa. Q: My H-1B is up for renewal after three years . Do I need a Labor Condition Application from Department of Labor to renew it? A: Yes, you do need a Labor Condition Application (LCA) from Department Of Labor (DOL) to renew it. Q: Is the Labor Condition Application specific to a state? A: The forms ETA 9035 for LCA are federal. Therefore, they are the same all over U.S. The certified LCA itself, however, is valid only in the region where it is certified and for the job location it is certified. Q: Can I work for other employer? A: You need USCIS permission. It is possible to have USCIS permission for employment with more than one employer at a time, but it requires separate H-1B petition. In the absence of explicit permission, however, an H-1B employee may not work for any employer other than the one for which the petition was granted. Q: I have an H-1B visa and I want to change my job. Is it possible for my new employer to file H-1B for me without my original H-1B document, which is with my present employer? A: Yes, you do not need the original H-1B documents from your present employer to get a new H-1B. If it is needed, a copy of the old H-1B approval is sufficient to file for a change of employer, even though you have to go through the whole process of getting the H-1B approval. Q: Is the new I-94 included in the H-1B approval notice? A: H-1B approval notice will arrive on a white form with a watermark of the statue of liberty, and with the bottom portion being an I-94 to be cut. Q: If my company is bought by another company, is my H-1B visa still valid? A: According to USCIS, if the successor company undertakes all rights, liabilities, assets and privileges of the previous employer, the H-1 visas are valid even after the takeover. Q: If I get promoted, do I need to get a new H-1B visa? A: Technically, you do need a new H-1B. But if the job is sufficiently close in description and responsibilities, your employer can just send a letter to USCIS. Q: Can I reenter U.S. if my multiple entry H-1B application is denied in Mexico or Canada? A: Normally you can. But you should make sure that you don't turn in your I-94 at the border while leaving U.S. Then you have to fill in a new I-94 when you enter US by showing your visa and old I-94. After 9/11, it has become even more uncertain whether you will be allowed back. Please note, your reentry is not guaranteed. Q: May I leave U.S. for a short time, after my H-1B petition has started? A: While many applications are considered abandoned if you leave the country during the application, that is not true for H-1B. The reason is that H-1B is not your petition. It is your employer's petition. You can leave U.S. and upon obtaining approval of H-1B. Q: What is the difference between Labor Certification and Labor Condition Application? A: Labor Condition Application (LCA) is for H-1B petition, and the Labor Certification (LC) is for Green Card petition. The LCA is a very abbreviated procedure. It is merely a one-page form that is routinely certified by the Department of Labor. The Labor Certification is a much more complicated procedure, and it requires a lot more time and effort. Q: Is Job Advertisement required for Labor Condition Application? A: No job advertisement is required for Labor Condition Application. Only internal notices need to be posted by the employer. Additionally, within 24 hours of filing an LCA, the employer is required to maintain certain documentation within his own premises. Q: Is it true that only advanced degree (MS, Ph.D.) can have good chance to get approval of the Labor Condition Application or Labor Certification? A: Generally, a Bachelor's degree in a defined subject area is sufficient for H-1B, and a Ph.D. has no additional significance. For a Labor Certification., chances of success depend upon how many people can qualify for the job. If an advertisement is placed for a bachelor degree, chances are a lot more people will apply than would for a job that requires a Ph.D. degree. It is not advisable to tailor a job to suit your own needs. If the employer asks for restrictive requirements for the job, the Department of Labor will object to it. Also, the higher the qualifications, the bigger the salary must be. It is not true that only advanced degrees have a good chance of success. There are a lot of variables that need to be considered. Q: I am currently on H-1B for the past four years. Now I plan to go to school full-time, can I get another H-1B after I come out of school? A: You will get an H-1B for only two years after you graduate from school, because you can get H-1B for total six years. Q: I obtained my bachelor degree in my country, and a master degree in the US. Do I still need to show that my bachelor is equivalent to a US bachelor? A: No. You have a master degree in US. Q: When should I file for my H-1B visa extension? A: You should file your request no earlier than four-six months before the expiration. Generally, filing the request three months before the expiration will be good. Q: Is filing for an H-1B visa extension the same as filing a new H-1B? and can I use the previous LCA to fill for my H-1B extension? A: The filing process is same as filing a new H-1B. You should get a new LCA approval.. Q: I am on an H-1B status and wish to start a company. Is it possible? A: Yes, it is possible. You can open a company and then apply for either a full-time or a simultaneous H-1B for your own company. There are a few conditions applicable: First, you must be working in your own area of expertise. Second, your company must pay your wages even if the company is not making any money. Also, you cannot use your own company to get a Green Card. Q: Can my employer pay me the salary less than the salary documented on my H-1B application? A: It is illegal to do so, unless the H-1B papers mention that the employee can be paid on a part-time basis. The employers are not permitted to do it like this way. Q: Can I have simultaneous H-1B? If so, is the six-year period calculated for the multiple visas? A: It is permissible to hold many H-1B's separately as long as the total period does not exceed six years. For instance, if you held one part time and one full time H-1B for a year, you have only spent one year on H-1B. This is so even though you held two H-1B jobs simultaneously during this time. The jobs may be both part time, or one full time and one part time. The number of hours worked is irrelevant for this determination. Q: If I apply for a change of employer or an extension of stay, am I subject to the yearly H-1B cap? A: No. Once you have been granted H-1B status, you are no longer subject to the cap, even if you change employers or extend your status. Q: Can an H-1B status worker immigrate permanently to the U.S.? A: An H-1B foreign worker may be the beneficiary of an immigrant petition, apply for adjustment of status, or take other steps toward lawful permanent residence in the U.S. This is known as "dual intent", as it has been recognized in immigration law since passage of the Immigration Act of 1990. 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. Q: I have been offered a part time job. Do I still qualify for H-1B status? A: Yes. 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 receive a part time H-1B visa. 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. Q: When may I legally begin to work for a new employer? A: As soon as your new H-1B petition is filed with the USCIS, provided you have an H-1B petition with another employer at the time of filing (i.e., you are in H-1B status when you filed your new H-1B petition). Q: How do I know my H-1B transfer has been filed with the USCIS? 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 is also sufficient evidence that your H-1B transfer has been filed. Q: I am in H-1B status now and would like to change jobs. Am I subject to the H-1B quota cap? A: No. If you are in H-1B status, you are not subject to the H-1B quota cap. Q: I was in H-1B status but am now in F-1 (student) status and would like to apply for an H-1B visa. Am I subject to the H-1B quota cap? A: Yes. You are subject to the H-1B quota cap since you are currently in F-1 status even though you were previously in H-1B status. Q: I am in H-1B status now. Can I be laid off or fired by my employer? A: Yes, if as in most cases, your employment offer is at will. (An exception to this applies if you signed a union contract.) If you are laid off or fired, your employer's only liability is to provide you with a return one-way ticket to your home country if you chose to go. 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 need to convert 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 within the short period, you will be allowed to remain in the U.S. while your case is pending. 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: Yes, 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: Is there a relationship between obtaining an H-1B and obtaining a Green Card? A: No, each is independent of the other. An H-1B is a non-immigrant status visa while obtaining a Green Card describes the process of becoming a permanent resident. You may apply for a Green Card with or without an H-1B. 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. Q: I am in F-1 status and am not using my practical training period. May I obtain H-1B status? A: Yes. A practical training period is not a prerequisite to obtaining H-1B status. However, practical training is preferred over an H-1B petition because of its status duration. An H status holder is limited to a maximum stay of six years at a time, whereas an F-1 status holder is allowed to remain in the U.S. for as long as he is enrolled as a full-time student in an educational program and making normal progress toward completing his courses of study. Q: What factors are relevant in determining the prevailing wage? A: Relevant factors in 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. Q: I am in J-1 (exchange visitor) status. May I obtain an H-1B status? A: Yes, you may obtain an H-1B, provided that you are not subject to the two-year requirement. 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. Rather, it is whether your employer has a real business need for the position you fill and whether it is financially able to pay your salary. An employer is eligible to sponsor you for an H-1B, so long as the employer has offered you a job and has the financial resources to pay you the job's prevailing wage. 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, if they have the cash to pay their employees. 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. 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: 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 an H-4 status at the same time, if they are in the U.S. and you would like to claim them as your dependents for non-immigrant status. Q: May I change from an H-1 status to an F-1 (student) status? A: Yes, provided you obtain and complete Form I-20 from an USCIS approved school. Q: My spouse is currently in H-1B status. May I change my status from H-1B to H-4? A: Yes, if you have not exceeded the six-year cap for H status. Q: Are there any exceptions to the six-year H status rule? A: Yes. Under the H-1B law, if a Labor Certification Application or an immigration petition has been filed on your behalf and has been pending for at least 365 days, you may apply to extend your H status for one year (at a time) even if you have already stayed in the U.S. for six cumulative years. 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 an 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 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 adjustment is denied and you did not extend your H-1B, you are out of status. Q: I am currently in H-1B status. May I attend school part time? Do I need to obtain an F-1 (student) status? A: An H-1B holder is allowed to go to school part time without an F-1 as long he/she currently holds a valid H-1B status. Q: I currently have H-1B status from my current full-time employer, and have received an offer from another employer to work on a part time basis. May I accept the part time job offer? Is there anything I need to do? A: You should ask the prospective employer to apply for a part time H-1B visa on your behalf. You may keep two or more concurrent H-1Bs, either holding one full time and one part time H-1B or holding two part time H-1B visas. It is not possible to hold two full time H-1Bs from two employers. Q: I currently in OPT (optional practical training). What is the minimum hourly requirement that qualifies me for a part time H-1B visa? A: Generally, a successful part time H-1B can be based on a job requiring a minimum 20-hours/per week. If your part time offer is for less than 20 hours/per week, you may still qualify for a part time H-1B visa. Q: I am currently in H-1B status but was recently fired. May I change back to an 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. 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 visa. Q: I am currently in F-2 status. May I apply for an H-1B? Should I change into F-1 (student) first and then apply for an H-1B? A: Yes, you may apply for an H-1B. You do not need to change into an F-1 status. Q: Which H-1B applications are not subject to the H-1B quota limitation? A: The following H-1B applications do not fall within the cap: Applications for of H-1B status extensions; H-1B petitions for concurrent employment where the alien worker is presently in H-1B status; H-1B petitions to change employers; H-1B applications sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government, or nonprofit research organizations; and H-1B applications for physicians who received J waivers under the Conrad State 20 Program. Q: Can an H-1B holder extend his H-1B status beyond the six-year H-1b status limit? A: n most cases, an H-1B holder may not extend his status beyond the six-year period, unless he/she qualifies under one of the following three (3) exemptions: An H-1B holder that is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition and is waiting for the new quota to apply for an adjustment of status, may apply to the USCIS for extensions of H-1B status beyond the six-year period until his adjustment of status application has been adjudicated. However, USCIS has the discretion to approve or deny such applications and as such is not guaranteed.   A beneficiary of EB-1 and NIW, if the immigration is filed over 365 days, either pending or approved, may file the extension of his H-1B beyond the six-year limit.   A beneficiary of BE-3 and EB-2 (other than a national interest waiver), if the labor certification was approved and filed more than 365 days, and the immigration petition is filed (either pending or approved), may apply to extend his H-1B status beyond the six-year limit. Q: I am in H-1B status and my immigration petition (I-140) has been approved. I just filed an I-485 (adjustment of status) 30 days ago. If I change employers now, will the change affect my adjustment of status? A: Yes. The change will affect your adjustment of status if you filed an I-485 less than 180 days ago.  If you have filed an I-485 more than 180 days ago and you will work in an identical or similar position for the new prospective employer, you may change employers and the change will not affect your adjustment of status. 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: How do I contact the Service Center concerning the Premium Processing request that I filed? A: Each Service Center has a different mailing address as indicated in the instructions for Form I-907 (Request for Premium Processing). Additional contact information for each Service Center will be provided to you on your receipt notice. Q: As a F-1 student, with my 12-month OPT time close to the end, and I can only for the H-1B employer starting on October 1. To keep my legal status in U.S., am I eligible for the "cap-gap relief"? Are there other options to keep my status before October 1? A: USCIS has regulation that addressed matters related to graduating F-1 students transitioning into H-1B employment. This regulation provided assistance, known as "cap gap" relief, for students facing status and employment eligibility gaps between the expiration of their 12-month OPT period and the start of H-1B employment. H1B employment eligibility for most graduating foreign students is dependent upon availability of H-1B cap numbers.  Thus, there is often a gap between the expiration of a student's OPT and the earliest allowed start date (usually October 1st) of an H1B petition filed by the employer. Without cap-gap relief, many of these students had no way to remain in the U.S. and work for many months. The regulation addressed this problem, allowing more students to transition smoothly from F-1 to H-1B status.  The regulation also provided for a possible extension of OPT status, for an additional 17-month period (total of 29 months) for those graduates with degrees within the specified list of STEM degrees. Along with the grant of this significant privilege came new requirements for maintenance of employment during the OPT period in order to maintain status.  Q: I am a H-1B visa holder working for a consulting company. It is be possible that I may be laid-off a in near future due to the company's slow business. Is it true that there is a USCIS policy giving a 60-day grace period to such H-1B laid-off to looking for new job? A: Some H-1B visa holders believe that there is a USCIS policy giving a 60-day grace period to laid-off H-1B aliens during which he or she can look for a job, and the USCIS is required to approve a new H-1B transfer petition if it is filed within 60 days.  According to USCIS, the H-1B nonimmigrant is admitted into U.S. to be employed by the H-1B visa petitioner. If such employment ends, the previous employment conditions no longer exist, and the H-1B employee is no longer in a lawful nonimmigrant status. Thus, the H-1B visa or status holder may not be able to transfer to another company, with certain exceptions.  Therefore, there is no such 60-day or even 10-day grace period for laid-off H-1B employees to find another job, once the H-1B alien is no longer in a lawful status in U.S., and may normally have to leave the U.S.  If the H-1B employee has a pending Form I-485 adjustment application or has filed an application of change status (such as H-4), the H-1B alien may be eligible to remain in the U.S. However, USCIS may need to make a decision on a case-by-case basis, to grant the extension or change of status despite the failure to maintain status. Q: Currently, I am working on a L-1B visa in U.S. I had applied for my H-1B visa through another consulting company, because my L-1B employer would not sponsor my Green Card application. I have got my H-1B status application approved yet. In addition, given the current situation, I am not planning to resign from my present company where I am working with L1B visa, until I get he H-1B approved through the consulting company. My question is: can I continue to work for my L-1B employer after my H-1B status approval? Please help me.  A: Many people with an nonimmigrant status in United States sign up with another company and have no idea what their obligations and responsibilities are. These people may think "I want an H-1B status or visa because of the Green Card application and my L-1 employer would not sponsor me." But H-1B visa or status are not supposed to be obtained as an option for employment at some point in the future convenience of Green Card application. The H-1B petitions are supposed to be filed for specific job openings, not speculative employment. If a H-1B application is filed in United States for requesting "Change of Status" and the alien applicant is given a Form I-797A with new I-94 card at the bottom, as opposed to Form I-797B with a request for U.S. Consular Notification abroad. After the H-1B status change approval in United States, the alien applicant can only work for the H-1B employer, and can no longer work for the L-1B employer. In another words, an alien worker definitely cannot have 2 nonimmigrant status (L-1B and H-1B in this case) in the U.S. at the same time, although an alien can potentially have 2 H-1B employers at the same time. Q: My employer is a consulting company, and it filed a H-1B extension application for me about 2 months ago. The H-1B extension application was rejected last week, because of the working site requirement and management. My H-1B visa will expire soon. Now I need to know whether I have any legal basis to live and work in U.S. if my employer reopen the case? A: Many employers and alien H-1B employees faced with H-1B extension denials immediately want to argue with the USCIS about the decision. The Motion to Reopen or Reconsider (MTR) provides no legal basis for alien employee to live and work in U.S. One of the driving factors in the decision to argue about a H-1B extension denial would be the incorrect belief that it provides the same benefits and privileges as a pending H-1B extension of status case. That is, employers and foreign nationals often assume that filing a motion to reopen or reconsider allows a foreign national to remain in the United States legally and continue to work while the motion is pending. This is not correct. Under the regulations, filing a motion to reopen or reconsider does not stop the denial decision or its impact. If the motion is ultimately successful and the H-1B extension case is finally approved, then the situation will be resolved as if there had not been a denial. But, unless and until that happens, the H-1B extension case is still considered as having been denied. When the initial filing contains fatal flaws that make it not approvable under law, it remains as a denial - with or without the motion. It is important not to wrongly assume that the impact of a denial is eliminated by filing such motions. Q: As a H-1B visa holder, I used all my 6 years of H-1B status in United States, and I will go back to my home country for one year to apply for H-1B visa again after one year. During this one year, does a brief business trip to United States will make me ineligible for another six years of H-1B status?  A: The H-1B workers have a general limit of six years of time in H-1B status. This may be extended, based upon the filing of a qualifying employment-based Green Card application case. Alternatively, individuals who reside outside the United States for one year become eligible for a full six-years of H-1B time. The latter cases are subject to the H-1B annual limit or "cap."  The USCIS has indicated that stays in the U.S. that are not within the brief trip for business or pleasure category may cause the clock to reset of applying for H-1B visa again. This would mean that the individual would have to start counting the year abroad from the point of his/her most recent departure from the United States. The USCIS did not give any indication of the permitted length of such trips. Therefore, it is helpful to know the one-year-abroad requirement for a foreign national to become eligible for another six years of H-1B status, as well as the USCIS' interpretation of brief visits.  Q: I have a H-1B visa in U.S. and working for a small company. Can I apply for U.S. Green Card? or is the H-1B visa a "dual intent" visa? A: Many foreign nationals seeking nonimmigrant visas are unclear about the “presumption of immigrant intent” and suffer visa denials because they are unable to prove their temporary intent to remain in the U.S. But the H-1B visa and L visa are nonimmigrant visa, and they are the only employment based non-immigrant visa categories where the "dual intent" is recognized by immigration law.  The U.S. immigration regulations recognize the "immigrant intent" for H-1B visa and L visa (including L1A visa and L1B visa). Therefore, H-1B visa holders and L visa holders can apply for immigration visa inside United States, such as: 1) the labor certification application; 2) an immigrant visa application; 3) adjustment of status application; 4) application for H-1B visa or L visa extension after an immigrant visa application. While dual intent is recognized for H-1B visa, similar exemptions are not available to foreign nationals in or seeking H-2A, H-2B, H-3 or TN visa classifications. Q: I am in H-1B visa, and my co-worker with H-1B visa in another city has just had a "Site Visit" by USCIS. Why would the USCIS conduct a site visit? Is there anything I need to know or be careful for the possible site visit for my work place?  A: A special office of U.S. Citizenship and Immigration Services (USCIS), called the Office of Fraud Detection and National Security (FDNS) will conduct a site visit for companies with alien workers in H-1B, L-1, or O-1 status. There may be a few red flags to trigger the FDNS to have a site visit. For example, the alien workers may be placed at a location that is different from the U.S. employer’s actual work location. These practice and work location arrangements are often occur with alien workers in the Information Technology (IT) field. Some U.S. service companies employ many alien workers as "consultant", and assign these consultants to work for their "end client" companies at the client's locations. Because these arrangements can be confusing for USCIS, the FDNS conducts the site visits to confirm that the worksite location explanation on the non-immigrant visa application Form I-129 for H-1B, L-1, or O-1 visa is correct, and that the U.S. service companies are truly the alien worker’s employer. It is very importance to provide true and accurate information on all H-1B, L-1, or O-1 visa applications. The USCIS' Office of Fraud Detection and National Security is very likely to conduct a site visit if the U.S. employer has previously committed immigration visa fraud. If the FDNS finds the fraud, it will carefully review all subsequent immigration petitions filed by the U.S. employer.  Q: I am a F-1 international student, and my potential U.S. employer will file H-1B status application for me. How to get the Cap-Gap extension for my F-1 status? and what is the eligibility for Cap-Gap extension of my F-1 status? A: The "Cap-Gap" is known as the period of time when a F-1 international student’s status or work authorization expires to the start date of approved H-1B employment.  The Cap-Gap occurs because the earliest date that an U.S. employer can file an H-1B status petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the change of status request, the earliest date that the student may start the approved H-1B employment is October 1.  The USCIS regulations allow H-1 international students with approved H-1B petitions to remain in F-1 status during the cap-gap period, which provides a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status, that might otherwise occur if F-1 status is not extended for qualifying students. H-1B petitions that request a change of status to H-1B on October 1 qualify for a cap-gap extension.  Q: I am an employee in H-1B status for 2 years,  and I received advance notice this week that I will be laid off within one month. Is it possible that I can change employer? A: To change employer without having to depart the United States, you need to find an U.S. employer to file USCIS Form I-129 (Petition for a Nonimmigrant Worker) for you, prior to being laid off. The Form I-129 petition should be filed prior to the termination of your job, and you must have been maintaining valid H-1B status.  If the I-129 petition is filed after your dismissal, you may have to return overseas to process your H-1B visa for the new employer.  Q: What is Foreign Labor Certification iCERT Visa Portal System? How to apply for the Labor Condition Application for Nonimmigrant Workers? Answer: A: The iCERT Visa Portal System provides a single point-of-entry for employers, attorneys, and agents to file and track their employment-based visa applications It is a portal system in the DOL Foreign Labor Certification site that gives a number of features. Registration creates a single account system for each employer or legal representative and the information in the account is shared throughout the subsequent filings of new LCAs and PERMs. If you are new to iCERT, you must create a new user account to access any electronic filing system. Begin on the iCERT Home Page http://icert.doleta.gov The portal will also allow access to the Online Wage Library in the portal rather than as a separate site. According to the agency's information, the new portal system will include the followings:  Prepare applications with the feature of automatic pre-populating of visa forms with the employer's business/contact information. Create and manage sub-account users (e.g., HR staff or in-house legal counsel) to prepare and submit applications on behalf of the company.  Track the status of applications across visa programs through a single account.  Submit requests to withdraw applications or authorize sub-account users to do so on behalf of the company.  Notify DOL, at any time, when the employer becomes aware that applications for labor certification have been submitted without its authorization.  Allow attorneys or agents and their sub-account users such as paralegals to prepare and submit applications taking advantage of all the foregoing features which will be allowed to their clients, employers. Q: As a laid off H-1B employee, do I have an automatic 10-day or other grace period for terminated employees holding H-1B status?  Can I begin working for another job with a different employer? A: An H-1B visa holder should work for the sponsoring H-1B petitioner. If the employment ends, the H-1B employment condition is no longer satisfied, and therefore the alien employee is no longer in a lawful nonimmigrant status in United States. The terminated H-1B visa holder can be able to port to another employer subject to certain conditions. There is no automatic 10-day or other grace period for terminated employees holding H-1B status, so once the H-1B worker is no longer in a H-1B status, the alien many need to depart from the United States. Depending on the alien's circumstances, the H-1B worker may be eligible to remain in the United States, because of a request for a change of status or for extension of stay that is filed while that alien is maintaining H-1B status, or with a pending status adjustment I-485 application. For a H-1B worker who has fallen out of status, USCIS will exercise discretion on a case-by-case basis to grant the extension or change of status despite the failure to maintain status. Q: My U.S. citizen brother has apply for immigration visa for me several years ago, based on Form I-130. Now, my employer will send me to work in the United States with  H-1B visa or L-1 visa (not sure which view type at this time) for a large engineering project. Do you think that I may get denied the visa application because of my previous immigration visa application by my U.S. citizen brother? or my potential application of permanent resident in the United States later? A: If a U.S. consular officer finds you are not eligible to receive a nonimmigrant visa under U.S. law, your visa application will be denied, and you will be provided a reason for the denial. There are many reasons a visa applicant could be found ineligible for a U.S. nonimmigrant  visa. These reasons or ineligibilities are listed in the Immigration and Nationality Act (INA) and other  U.S. immigration laws. Some ineligibilities can be overcome, either by you, the visa applicant, or the U.S. petitioner, in certain immigrant visa cases. Other ineligibilities are permanent. This means that every time when you apply for a visa, you will be found ineligible under the same section of law, unless a waiver of that ineligibility is authorized by the U.S. Department of Homeland Security. Unlike most other nonimmigrant categories, H visa and L visa cetegories are not subject to immigrant intent provisions of INA section 214(b) - "Did not establish eligibility for the visa category being applied for or overcome the presumption of being an intending immigrant ."  It is referred to as the "dual intent" doctrine. The dual intent doctrine is well known, and it is highly unusual for an H-1B or L-1 visa applicant to obtain an H or L visa denial on this basis alone. The alien applicant applying for H-1B or L-1 visas in dual-intent categories are allowed to possess the intention to immigrate to U.S. in the future. Thus, the H-1B or L-1 visa application should not have been denied for his or her perceived lack of ties to the home country, or the expectation that he or she may eventually seek to become a lawful permanent resident in the United States. Q: My U.S. citizen brother has apply for immigration visa for me several years ago, based on Form I-130. Now, my employer will send me to work in the United States with  H-1B visa or L-1 visa (not sure which view type at this time) for a large engineering project. Do you think that I may get denied the visa application because of my previous immigration visa application by my U.S. citizen brother? or my potential application of permanent resident in the United States later? A: If a U.S. consular officer finds you are not eligible to receive a nonimmigrant visa under U.S. law, your visa application will be denied, and you will be provided a reason for the denial. There are many reasons a visa applicant could be found ineligible for a U.S. nonimmigrant  visa. These reasons or ineligibilities are listed in the Immigration and Nationality Act (INA) and other  U.S. immigration laws. Some ineligibilities can be overcome, either by you, the visa applicant, or the U.S. petitioner, in certain immigrant visa cases. Other ineligibilities are permanent. This means that every time when you apply for a visa, you will be found ineligible under the same section of law, unless a waiver of that ineligibility is authorized by the U.S. Department of Homeland Security. Unlike most other nonimmigrant categories, H visa and L visa cetegories are not subject to immigrant intent provisions of INA section 214(b) - "Did not establish eligibility for the visa category being applied for or overcome the presumption of being an intending immigrant ."  It is referred to as the "dual intent" doctrine. The dual intent doctrine is well known, and it is highly unusual for an H-1B or L-1 visa applicant to obtain an H or L visa denial on this basis alone. The alien applicant applying for H-1B or L-1 visas in dual-intent categories are allowed to possess the intention to immigrate to U.S. in the future. Thus, the H-1B or L-1 visa application should not have been denied for his or her perceived lack of ties to the home country, or the expectation that he or she may eventually seek to become a lawful permanent resident in the United States. Q: My employer will file Labor Condition Application (LCA) in an H-1B petition for me.  How to use the DOL Wage Worksheet to decide the wage level properly? A: The petitioner preparinng the H-1B petition should use the DOL wage worksheet in the "Prevailing Wage Determination Policy Guidance" to assess the proper wage level. If the DOL found that the wage worksheet had been properly completed, the employer's H-1B petition should contain the correct wage. To use the wage worksheet when making an independent wage level determination of an LCA in an H-1B petition. An H-1B employer should be prepared to defend the wage level decisions. The petitioner should carefully reviewe the factors listed for proper wage level decisions. This is done to protect both the employer and the H-1B workers. An H-1B beneficiary should be properly classified under an O*Net category. The DOL will reviewe the wage level claimed by the H-1B petitioner, by applying the Prevailing Wage Determination Policy Guidance. This wage guidance sets forth a system for comparing the requirements of the employer's job offer to the standard requirements for similar occupations on O*NET, which is a DOL-sponsored program that serves as the primary source of occupational information in the United States. All job occupations start with a level I wage for an entry-level position. Where appropriate, points are added to the DOL wage worksheet to determine whether a higher wage level is required. There are 4 steps in determining when a wage level should be increased. The employer's offered job is compared to the O*NET description for that type of occupation. If there are special skills or requirements in the employer's job description not encompassed by the generic O*NET job description, then the wage level may be increased. Otherwise, the wage level should remain at level I. The DOL will go through the education and experience components of the wage level analysis. Even if certain parts of the job are above level I, that would not automatically put the job at level II. The purpose of the wage worksheet is to go through the factors in the checklist and use the definitions of each level as a guideline. Therefore, a wage worksheet is only as good as the information provided by the employer. The employer should provide accurate information in the worksheet. Q: I am approaching the 6 years of H-1B status in United States. Can I ask my employer to file PERM Labor Certification for me now? or is it too late for me? and what are the rules for H-1B extensions beyond 6 years? A: The allowable time for H-1B status in U.S. is 6 years. For an alien to be eligible to extend H-1B status beyond 6 years, it is necessary to qualify certain requirements and conditions, as defined in the "American Competitiveness in the Twenty First Century Act (AC21)". The  first requirement is that the H-1B holder must be the beneficiary of an Labor Certification filed 365 days before (known as the 365-day rule), or the Labor Certification and USCIS Form I-140 must be approved already. The 365-day rule relates to an alien's ability to extend the H-1B status beyond 6 years. Therefore, it is often recommended that the U.S. employer should file the PERM Labor Certification application at least 365 days before the end of the six years of H-1B status, but it does not mean that the PERM Labor Certification cannot be filed within the 6th year of H-1B status. The outcome of a Labor Certification filing is not connected to the time the beneficiary has remaining in H-1B status. A Labor Certification application decision does not depend upon the immigration status of the alien beneficiary. The U.S. Green Card application is related to a future job offer concept, unlike the ability to obtain H-1B extensions to live and work legally in U.S. Some aliens with H-1B status often ask whether it is too late for the U.S. employer to file a PERM Labor Certification for them, because they are approaching the 6th year of H-1B status, and the economic downturn have delayed the employer's ability to file the PERM Labor Certification early for these H-1B status holders. Some people may assume that it is difficult to file a PERM Labor Certification, if one is in the 6th year of H-1B status already, but actually Labor Certification can be filed at any time, even in the 6 years of H-1B status in U.S. Q: What is the current fee for H-1B or L-1 visa application? is the fee required only for initial petition or change of employer? A: A law has passed in  U.S. Comgress (Public Law 114-113) to increase the an already high filing fee for H-1B visa and L-1 visa petitions filed by companies that meet certain requirements, the subject employers must pay the increased fee of $4,000 for all new H-1B employees (increased from $2,000), and $4,500 for all new L-1A and L-1B employees (increased from $2,250). Only companies with fifty (50) employees or more in the U.S., at least 50 percent of whom are in H-1B status or L-1 status, are subject to the fee of $4,000 for H-1B, or $4,500 for L-1. If a company has fewer than 50 employees in the U.S., or if company's combined total of H-1B and L-1 workers is less than 50 percent of its total U.S. workforce, this fee does not apply. The following petitioners must submit the additional fees with an H-1B or L-1 petition filed: 1) Initially to grant status to a nonimmigrant status of H-1B or L-1, or 2) To obtain authorization for a nonimmigrant in such status to change employers. This fee is in addition to the a) Base Processing Fee, b) Fraud Prevention and Detection Fee, c) American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as d) the premium processing fee, if applicable. Subject employers do not need to include the $4,000 or $4,500 fee each time an H-1B visa or L-1 visa petition is filed to USCIS. An employer generally is required to pay the fee only one time for such employee. It is important for employers to properly assess filing fee requirements. H-1B or L-1 petitions filed without the correct filing fees may be rejected directly. Q: My potential employer is an independent contractor. This company may place me at a third-party worksite for its client. Do you think my situation could qualify for the H-1B visa application requirement of "employer-employee relationship"? A: The H-1B visa regulations require that a U.S. employer should establish that it has an employer-employee relations with respect to the H--1B beneficiary, as indicated by the fact that "it may hire, pay, fire, supervise or otherwise control the work of any such alien employee." USCIS clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. In addition to demonstrating that a valid employer-employee relationship will exist between the U.S. petitioner and the alien beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including: • establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation; • demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and • filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services. Q: As a H-1B visa holder, I recently extended my H-1B status by submitting an application to USCIS by my employer. But my employer's lawyer forgot to renew my wife's H-4 status also at the same time. What should I do now? Does this means that she has failed to maintain her H-4 status in U.S. already?   A: A common error involves family members who have derivative status, such as spouses or children with H-4 status. Frequently, it is assumed that extending the principal H-1B status automatically extends the derivative status of family members. Unfortunately, this is not the case. As mentioned, each family member must obtain an extension by filing a request with the USCIS. The status is only extended if such a filing is made and approved with the issuance of new I-94 for each family member. So, H-1B spouse should file the H-1B renew application same as H-1B principal. The mistake of allowing the H-4 status to expire can have catastrophic results. In the United States, there are harsh penalties for failure to maintain legal status, as well as bars to reentry for those who have extended periods of unlawful presence. Generally, once a person has fallen out of legal status, she or he is no longer allowed to extend or change status without leaving the United States. Q: What Should Consider When Evaluating the H-1B Employer-Employee Relationship? A: For the H-1B visa application requirement of employer-employee relationship, USCIS will evaluate whether the petitioner has the “right to control“ the beneficiary's employment, such as when, where and how the H-1B alien beneficiary performs the job. The factors to be considered include: 1) the manner and extent to which the petitioner actually supervises the H-1B alien beneficiary; 2) the petitioner's right to control the alien beneficiary's daily work and work product; and 3) the petitioner's right to hire, pay, and fire the beneficiary. USCIS adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists. The H-1B petitioners should provide detailed documentation of the employment relationship. Particularly in cases in which the beneficiary will be assigned to third-party or client worksites, H-1B employers should carefully document that it, and the employer should have the right to supervise, direct, and review the H-1B visa holder's work, and terminate the employment. A detailed itinerary providing information on the multiple work locations should also be attached with the H-1B visa application documents. Q: What are the President Trump's executive order for any H1B program changes? A: USCIS (United States Citizenship and Immigration Services) has released a policy memorandum that may affect the ability of some foreign aliens employed as computer programmers to obtain H1B status. The new memorandum specifically revokes previous memorandum, which had stated that a computer programmer position would generally qualify as a “specialty occupation”, and be eligible for approval of an H1B petition. The previous memorandum does not fully or properly articulate the criteria that apply to H-1B specialty occupation adjudications, also it did not accurately portray essential information from the USCIS Handbook that recognized that some computer programmers qualify for these jobs with only “2-year degrees.” The new ISCOS memorandum advises that persons employed as computer programmers, particularly those in entry-level positions, may not be considered to be employed in a “specialty occupation,” and may not qualify for H1B status, because a bachelor’s degree in a specific field may not be required for the computer programmer position. The USCIS states in the memorandum that this is not a change in policy. However, the language of the memorandum does appear to present some new challenges to companies in the information technology field. Q: What are the President Trump's executive order for any H1B program changes? A: President Trump has signed an executive order - buy American, hire American. The ‘hire American’ portion of the executive order aims to control the hiring of foreign national workers, especially via the H1B workers, and it seeks out ways to stop supposed “abuses” of the H1B program. While the executive order will not directly make changes to the H1B program, it does pave the way for changes to be made later. For "hire American" and  createing higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to enforce the laws governing entry into the United States of workers from abroad. The H-1B visa program has been assailed for years by critics who say it is used by companies to hire cheap, foreign workers in place of Americans. Its proponents say it provides much-needed skilled workers to sectors where companies have struggled to hire Americans. US Citizenship and Immigration Services (USCIS) approved 85,000 H-1B visas annually, 65,000 go to foreign workers who possess at least a bachelor's degree or equivalent, and an additional 20,000 for those who have earned a master's degree or higher in the US. Trump took aim at the "totally random" lottery system in his remarks, saying the visa system must ensure that only the most skilled, highly paid workers are allotted such visas, and never at the expense of American labor. Q: I was hired by a company to work in another company (my company's client). In my H-1B application documents, do I need to submit a letter from the client company to establishing that a qualifying employer-employee relationship exists between my company and me? A: Some H-1B visa petitions filed with United States Citizenship and Immigration Services (USCIS) involve employment in the Employer-Vendor-Client (EVC) relationship. In the EVC H-1B visa petitions, the H1B employee is placed at the worksite of a company other than the H-1B petitioning employer, as a result of contracts through vendors. In recent years, this type of H-1B petition has become more and more challenging, and USCIS may check the importance of end-client letters in these H-1B petition cases involving an EVC employment relationship. USCIS believes that an H-1B petition filed under an EVC relationship must demonstrate that there is an actual “employer-employee relationship” between the petitioning employer and the H-1B worker. The USCIS interprets this to mean that the H-1B employer is required to maintain the “right to control” the daily work of the H-1B employee, even when the alien worker is working remotely. The U.S. employer should establish the control over H-1B beneficiary's work or service. Also, a letter may not be required from the end client if petitioner can demonstrate the employer-employee relationship. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. The petitioner may submit a combination of any documents to establish the evidence that the required relationship will exist. USCIS adjudicators will review and weigh all the evidence submitted to determine whether the petitioner have met the burden in establishing that a qualifying employer-employee relationship will exist. Q: If I am laid off by my H-1B employer, can I change employer? A: If you are no longer employed by the U.S. employer who petitioned for your H-1B visa, and you are not being paid by that H-1B employer, then you are out of status. You can look for other employment with an employer who can petition for your H-1B transfer. When you transfer your H-1B employment to a new employer, USCIS will request pay statements, the sooner you find another H-1B employer, the better. You shold have little to no gap in your employment. Prior to being laid off, another qualified H-1B employer may file a Form I-129, Petition for a Nonimmigrant Worker, on your behalf with USCIS.  In order to change employers without having to depart the U.S., the Form I-129 petition should have been filed prior to the termination of your job, and you should maintaining valid H-1B status.  If the I-129 petition is filed after your dismissal, you may have to return overseas to process your H-1B visa for the new employer. Q: Do I have go back to my home country to get the H-1B visa stamping? A: If you hold H-1B visa or L1 visa, you may need to get the re-stamping upon the extension of your expired H-1B visa or L1 visa. H1B visa stamping in the passport is needed for a foreign national to enter or reenter the United States as an H1B worker. In other words, visa stamped on your passport is the authorization to enter into United States. For a U.S. consulate to issue H1B visa stamp in your passport, the passport must be valid for 6 months after the expiration of a U.S. visa. The re-stamping can be done at any U.S. consulate out side of United States. While some neighboring country allow to do re-stamping for foreign nationals, It is recommended to get the stamping or re-stamping done in your home country. The process of re-stamping is same as any new U.S. visa stamping, except that there is flexibility and different documents requirement. The applicant may need to appear for personal interview at the U.S. consulate. In order to get your H1B specialty occupation visa stamped, a list of documents must be submits which includes:     * A completed and signed non-immigration visa application form (Form DS-156). Separate form must be submitted for each applicant.     * A completed Form DS-157.     *  A valid passport (at least six months validity remaining) for each applicant. If your passport will expire within six months, it is necessary to extend the validity period before your interview date.     * One photograph (37x 37mm) for each applicant.     * Original H1B approval notice (Form I-797).     * H1B visa petition application form (Form I-129).     * A Labor Condition Application accepted by the Department of Labor.     * A support letter from your employer. It should include a description of your position, proving that the position is temporary and should also include a confirmation that the candidate will be a direct employee, and the salary level. Besides, the nature of the employer's business should be included.     * US company information which must include photographs of the inside and outside of the employer’s place of business, brochures, prospectus, and annual report.     * Proof of your academic qualifications such as certified copies of your qualifications including university diplomas; mark sheets and any certificates you may have (if applicable).     * A copy of the candidate's resume (curriculum vitae).     * Fee for issuing visa stamping. Q: Can I Change to Other Visa Type After Being Laid Off? A: Similar to H-1B visa holders, the L1 visa and O1 visa holders are no longer considered to be maintaining valid status as of the day the employment has been terminated.  The U.S. immigration regulations do not provide a grace period for H, L, O, and P nonimmigrants whose employment has been terminated, thus once the nonimmigrant visa holder is no longer in a lawful nonimmigrant status, he or she usually should depart from the U.S. Depending on each person's circumstances, the nonimmigrant visa holder may be eligible to remain in U.S. due to a request for a change of status, such as Form I-485 application or change to other visa, that is filed while the alien is maintaining status. In deciding whether to approve a change or extension of status for any nonimmigrant who has fallen out of status, USCIS may exercise discretion on a case-by-case basis to grant the extension or change status, despite the failure to maintain status. Q: Can I Change My Nonimmigrant Status to O-1 After Green Card Application? A: The H-1B status can apply for change of status to an O-1 visa, without any risk of denial based on the demonstrated intent to immigrate, since both O-1and H-1B visas allow for dual intent on the part of alien applicants. The H-1B visa and L-1 visas allow dual intent, although for a set maximum duration. The usual duration of an H-1B worker’s stay in the U.S. is limited to six years, while an L-1A visa is initially granted for a period of one to three years, and can be extended in two-year increments until the total stay reaches seven years. In contrast, there is no maximum period for O-1 status, it can theoretically be indefinite. For O-1 visas the length of the status is determined by the length of time needed for the alien to perform his duties or activities with the petitioner employer, but the period of stay may be extended indefinitely if the necessary qualifications can be met. Thus, O-1 status can present a viable way to maintain stable legal status in the U.S. and continue working, while waiting for the outcome of an immigration petition.  Q: I am a MBA student at this time, which is a non- STEM degree, but my also received a BS in mathematics from a university in United States. Can I apply for 24-month Optional Practical Training (OPT) after my MBA graduation? A: Certain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees may apply for a 24-month extension of their post-completion optional practical training (OPT). To qualify for the 24-month extension, you need to meet 2 conditions: 1) you must ave been granted OPT, and currently be in a valid period of OPT; 2) have earned a bachelor’s, master’s, or doctoral degree from a school that is accredited by a U.S. Department of Education recognized accrediting agency, and is certified by the Student and Exchange Visitor Program (SEVP) at the time you submit your STEM OPT extension application. If you are an F-1 student participating in a 12-month period of post-completion OPT based on a non-STEM degree, you may be eligible to use a previous STEM degree from a U.S. institution of higher education to apply for a STEM OPT extension. You must have received both degrees from currently accredited and SEVP-certified institutions, and cannot have already received a STEM OPT extension based on this previous degree. The practical training opportunity also must be directly related to the previously obtained STEM degree. For example, if you are currently participating in OPT based on a master’s degree in business administration but you previously received a bachelor’s degree in mathematics, you may be able to apply for a STEM OPT extension based on your bachelor’s degree as long as it is from an accredited U.S. college or university and the OPT employment opportunity is directly related to your bachelor’s degree in mathematics. Q: I am a H-4 visa Holder, can I apply for Employment Authorization Document (EAD) at this time to work in United States? A: For many years, since the H4 visa program inception, H-4 visa holders have not been provided with any work authorization. This changed on May 26, 2015 when USCIS passed the employment authorization for certain H-4 dependent spouses. The H4 visa dependent spouses were eligible for work authorization EAD (Employment Authorization Document), if the H-1B spouse satisfies one of the two conditions: 1) have an approved I-140, which is the immigration petition for foreign citizens to get Green Card or permanent residency in the United States; 2) have H1B visa status extended beyond 6 years under AC21 Act, which allows H1B holders seeking Green Card to work and stay in United States beyond 6 years, if their Green Card application is pending. Soon after the H4 visa EAD rule was enacted, thousands of H-4 spouses applied for H4 visa EAD and got their chance to work in U.S. after many years of staying at home. The Trump administration will propose revoking a rule that makes spouses of thousands of immigrant workers eligible to work while in the U.S., potentially complicating a major driver of technology jobs. The Department of Homeland Security said it intends to do away with that rule. The department did not explain its reasons in the announcement, saying only it was acting "in light of" the "Buy American, Hire American" executive order that President Trump signed in April of 2017. While changing the rule would not prevent spouses of H-1B holders from pursuing other avenues for work authorization, it could deter a number of high-skilled immigrants from staying in the U.S. if their spouses can't easily find work. Q: Do I need to file a H-1B amendment for my employment relocation? A: According to USCIS, an employer does not have to file a H-1B amendment when they relocate employees to other job sites if the Labor Condition Application (LCA) notice was posted and approved before the relocation, which gives the freedom for the employer to move around their employees without going through the H-1B amendment procedure. However, in the past, people are very cautious to file a H-1B amendment in this situation. There are some circumstances where your employer would simply need to file to have the current petition amended. These include a change in job duties, a significant salary increase, or a change in title. In these instances, as long as the position is still considered a specialty occupation that requires a bachelor’s degree or higher, you should just need to have your petition amended. Though the USCIS has not stated specific regulation for change in job location, it is highly advised to file an H-1B amendment when there is a change of the employee’s work location. The H-1B amendment must always be filed for any ‘material changes’ in the terms and conditions of employment. It would seem that the USCIS considers a change in location as a material change that requires an amendment. Thus, the safe course of action is to file the H-1B amendment for location change. Q: I am a H-1B worked, and will relocate to work in another location. Do I need to file an amended H-1B petition? A: If the employer asserts that there has been a significant change in the H1B worker's job role, the H1B petition should reflect those changes, typically with the filing of an amended H1B petition. On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC (PDF), which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated: When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers to the Department of Homeland Security. When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA. This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. USCIS will accept comments on the below draft guidance for a limited period of time. You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA), or an “area of intended employment” covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location. If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. Q: I am working in a higher and different position than what is listed in my H1B petition and underlying Labor condition application (LCA), may it be necessary to obtain a new certified LCA and amend the H1B petition? A: Many employers perform salary reviews at the end of each year, providing raises to employees who have performed well. This is routine, and normally does not require any changes to the H1B petition. However, if the salary increase results in an employee earning well above the offered wage listed in the H1B petition and labor condition application (LCA) currently in place for the worker, the employer should examine whether the employee still actually is working in the same position and performing the same job duties as those described in the H1B petition. If the individual is working in a higher or different position than what is listed in the H1B petition and underlying LCA, it may be necessary to obtain a new certified LCA and amend the H1B petition. This should be done at the time when material changes in the position occur. However, not all employers have rigid job categories and clear promotional levels. In fact, in some companies, job changes occur over time, in a somewhat informal manner. If this has happened with an H1B worker, salary may be a key indicator of that fact. USCIS has stated that an increase of wage alone for the same job may not be a substantial change requiring an amended petition. You need to review of your H-1B petition and job description. Q: Do I Need to Also Extended My Wife and Son's H-4 Status? A: Many H-1B visa holder does not know that it is necessary to specifically request extension of H-4 status for the dependents prior to the H-4 status expiration, for H-4 dependents who are in the United States. A H-4 dependent spouse or child generally enters with a visa stamp, and is admitted through the validity period of the principal spouse. The dependent simply may not realize that an application for an extension of status with the USCIS is necessary. The problem of a dependent overstaying the status expiration date is especially common with the H-4 category. This is because an H1B worker may regularly be the beneficiary of H1B amendments, and change of employer petitions. With each such petition, an extension of status may be granted. Given that the principal spouse’s status has been extended, it is very easy to forget to take any action to extend the dependent spouse’s H-4 status. Q: My employer will file H-1B application for me soon. How to file Labor Condition Application (LCA) before we file H-1B application to USCIS? A: The Labor Condition Application (LCA) is an application filed by U.S. employers on behalf of workers applying for work authorization for the non-immigrant statuses H-1B. The application is submitted to and needs to be approved by the United States Department of Labor Employment's Office of Foreign Labor Certification (OFLC). The form used to submit the application is ETA Form 9035. The Labor Condition Application (LCA) ETA Form 9035  is a document that a prospective H-1B employer files when it seeks to employ nonimmigrant workers at a specific job occupation in an area of intended employment for not more than three years. In this document, the employer attests to standards to which it will adhere. It must be certified by the authorized DOL official before it can be used. The applicants can file ETA Form 9035E on the iCERT System: https://icert.doleta.gov U.S. employers must file using the electronic iCERT system, except in two limited circumstances. Employers with physical disabilities or lack of Internet access prohibiting them from filing electronic applications may submit a written request for special permission to file their LCAs by U.S. mail. The employer's written request must establish the need to file by mail, and include an explanation of the physical disability or lack of Internet access. The employer should be prepared to submit supporting documentation if requested by the OFLC. The OFLC Administrator must approve the request before the employer may file by mail.  Q: How to File the  Labor Condition Application for H1B by Using the FLAG System? A: As part of the technology modernization initiative, the Foreign Labor Application Gateway (FLAG) System (https://flag.dol.gov/) has been developed to replace the legacy iCERT System, improve customer service, and modernize the administration of foreign labor certification programs through the Employment and Training Administration's Office of Foreign Labor Certification (OFLC). OFLC is making this public service announcement to alert employers and other interested stakeholders about implementation of its new FLAG System for the Labor Condition Application (LCA) programs covering the H-1B and E-3 visa classifications. Beginning September 16, 2019, the FLAG System's LCA Program Module will be enabled and stakeholders will be able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E. OFLC has created instructional videos to help educate the stakeholder community on how to create and manage a FLAG System account and prepare the Form ETA-9035E. To obtain more information and view these instructional videos, please visit the LCA Program page on the FLAG System. Employers must submit a Labor Condition Application (Form ETA-9035/ 9035E) to the Department of Labor electronically through the FLAG system attesting to compliance with the requirements of the H-1B, H-1B1 or E-3 program. LCAs must not be submitted more than 6 months before the beginning date of the period of employment. The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the Form ETA-9035E. An employer must petition the Administrator of OFLC for prior special permission to file an LCA by mail on the Form ETA-9035. Q: My employer recently merged into another company. What are the impacts of the corporate change on my H-1B status? and how to maintain my H-1B status after the corporate changes? A: Typically, the successor company assumes certain liabilities, including liability for all H-1B petitions, and is required to update the corporate change and successor relationship in the public access file. This may allow H-1B workers to continue employment without disruption under immigration provisions and interpretations which makes it so that each H1B worker’s terms of employment remains the same as with the prior entity. From time to time, however, other material changes accompany the corporate changes. Typical examples include a change in work location, or a material change in the job duties. In such a case, it is necessary to obtain an updated labor condition application (LCA) and, in most cases, an amended H-1B petition. In this situation, the most important issue to consider is whether the new comoany after the change is legally a "successor-in-interest" to the original H-1B sponsoring company. If the new company is, then there is no need to file an amended H-1B for each H-1B employee. On the other hand, if the new company is not considered a "successor-in-interest," failure to submit an amended H-1B can have serious consequences. In many cases, the human resource personnel and H-1B employees themselves realize too late that a corporate restructuring has generated H-1B-related issues that must be addressed. Failure to consider these ramifications can result in the company's H-1B employees losing their status and even render an employer subject to government sanctions. Q: I am a manager of an IT consulting firm. What steps should we take to maximize our chances of receiving H1B petition approvals for IT consultants? A: IT consulting firms should provide strong evidence to show that they have specific H1B level work for their alien employees at the time of H1B application filing. If an alien consultant will be working on an in-house project, the USCIS expects to be provided with detailed information on the project, including its technical specifications, the end-product, and a business plan or market analysis, such as target market, expected revenue stream, and anticipated length of the project. If the project will not earn a revenue stream in a relatively short period of time, the firm should be prepared to provide evidence that the H1B employee’s salary can be paid by other means. If a consultant will be placed at the worksite of an end client, this location should be stated in the H1B petition and in the certified labor condition application (LCA) that accompanies the petition. The petitioner should also provide strong evidence of the specific project that is immediately available to the alien employee at the time of filing the petition or the requested start date. The contracts, purchase orders, end client and vendor letters, and other supporting documentation should demonstrate to the USCIS that there is an H1B position available to the alien employee and that the employee’s services are needed for the entire duration of time requested in the H1B petition. Q: My potential employer will apply for H-1B visa for me. As the first step and requirement, the employer needs to pay the Prevailing Wage. How is the Prevailing Wage determined? A: For H-1B and PERM Labor Certification, the U.S. Immigration and Nationality Act requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the law, the U.S. Department of Labor's regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment. The prevailing wage rate is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Employers can obtain this wage rate by submitting a request to the National Prevailing Wage Center (NPWC), or by accessing other legitimate sources of information such as the Online Wage Library, available for use in some programs. The requirement to pay prevailing wages as a minimum is true of most employment-based visa programs involving the U.S. Department of Labor. In addition, the H-1B and PERM Labor Certification programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher. The U.S. Department of Labor's Bureau of Labor Statistics has provided wage data collected under the Occupational Employment Statistics (OES) program for use in the foreign labor certification process.  Q: I am a H1-B visa holder, and will be soon put in a third-party worksite by my employer. What are the new rule for the third-party worksite requirements? A: The Department of Homeland Security (DHS) has issued an interim final rule effective December 7, 2020, that revises the regulatory definition of and standards for for “worksite” and “third-party worksite”, for H-1B purposes. 1) Clarifies how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between the petitioner and the beneficiary; 2) Requires corroborating evidence of work in a specialty occupation; 3) Limits the validity period for third-party placement petitions to a maximum of 1 year; 4) Provides a written explanation when the petition is approved with an earlier validity period end date than requested. The rule requires that the petitioner establish, at the time of filing, that it has actual work in a specialty occupation available for the beneficiary as of the start date of the validity period as requested on the petition. In addition, all H-1B petitions for beneficiaries who will be placed at a third-party worksite must submit evidence showing that the beneficiary will be employed in a specialty occupation, and that the petitioner will have an employer-employee relationship with the beneficiary. Q: My employer will apply H-1B status for me soon. Please let me know how to apply for the "Prevailing Wage Determination"? A: To request a prevailing wage determination for a nonagricultural immigration program, such as PERM, H-1B, H-1B1, and E-3, U.S. employers must complete the Form ETA-9141, Application for Prevailing Wage Determination, and submit it to the National Prevailing Wage Center (NPWC). Electronic filing is strongly recommended. The NPCW will accept online submissions of Form ETA-9141 in the FLAG System for all visa programs at https://flag.dol.gov/ For the H-1B, H-1B1, and E-3 programs, employers have the option of using one of three wage sources to obtain the prevailing wage: 1) Requesting a prevailing wage from the NPWC (Form ETA-9141); 2) Using a survey conducted by an independent authoritative source; or 3) Using another legitimate source of information. By obtaining the prevailing wage from the NPWC, employers are given "safe-harbor status." This means, if the employer's wage compliance is investigated for any reason, the U.S. Department of Labor's Wage and Hour Division will not challenge the validity of the prevailing wage, so long as it was applied properly, i.e., correct geographic area, occupation, and skill level. Q: My employer sponsored Form I-140 have been appoved. Can I use the current I-140 approval to file an H1-B extension beyond the standard 6-year maximum with a new employer? A: A change in employer or job may directly affect an alien employee’s ability to use the approved Form I-140 petition. It is an issue of significant importance to the alien workers. If an approved Form I-140 petition remains valid, the alien employee may use it with any employer, as a basis to request an extension of H1B status beyond the standard 6-year maximum. For this, the Form I-140 must remain valid until the H1B petition approval. But if the petitioning employer withdraws the approved Form I-140 petition within fewer than 180 days of approval, that revoked I-140 petition cannot be the basis to extend H1B status beyond the standard 6-year maximum timeframe that is permitted under the law. Q: I am F-1 student on Optional Practical Training (OPT), my current employer will file H1B for me. How to register the H1B cap filing? A: For H1B cap filing, USCIS will use the electronic registration system, which was first implemented in March 2020. During a registration period designated by the USCIS, the employer should submit a separate electronic registration, along with a registration fee, for each cap-subject H1B candidate the employer seeks to sponsor for the next year. The registration period will be run from March 9th through March 25. At the end of the initial registration period, assuming the USCIS determines that it has received more registrations than needed to reach the regular cap and the master’s cap, the USCIS will conduct a random lottery from among all the registrations, and then a second lottery for the remaining registrations that are eligible for the master’s cap. By March 31, the USCIS will notify the petitioner for each selected registration that they may file an H1B petition on behalf of the emplbeneficiary listed in the registration. The notice will provide the petitioner with a 90-day filing window to submit the petition. For registrations selected during the initial registration period, the 90-day filing period is expected to start April 1. Q: I would like to quit my H-1B job soon. What are the possible ways to remain in legal status in Unted States after quitting a H-1B job? A: There are multiple ways to remain in lawful immigration status after you quit the H-1B job. The best way to maintain your legal status in United States is for a second employer to file an USCIS Form I-129 petition on your behalf while you are still working for your original H-1B employer. Once USCIS approves that Form I-129 petition, you can quit your original job and immediately begin working for your new employer, which ensures no gaps in your legal status in U.S. Another way to remain in legal status is to apply for a change of status. Many H-1B workers apply for a change of status from H-1B to F-1, so that they may attend a university in the U.S. But if you would qualify for another status such as L-1, or H-4, you can apply for a change of status to one of those also. The most important concept to remember when applying to change your status is that you must demonstrate to USCIS that you were maintaining status up to the point of your application. In the context of H-1B employment, you must provide evidence of your employment such as pay stubs and timesheets. Q: I plan to quite my H-1B job next week because my health reason. What are the consequences of quitting my H-1B employment? A: H-1B visa is available to foreign workers coming to the U.S.temporarily to perform services for U.S.employers. There are many advantages of H-1B status. However, one possible disadvantage is that your status in the U.S. is dependent upon your fulfillment of the terms and conditions of your approved employment for a U.S.employer. After you quit your employment, your employer is legally obligated to inform USCIS that you are no longer working there. Thereafter, USCIS will revoke your H-1B petition approval. If you accrue more than 180 days of unlawful presence but fewer than 365 days, you are barred from reentering the U.S. for three years. If you accrue more than 365 days of unlawful presence, you are barred from reentering the U.S. for ten years. Also, after you cease to be employed with the H-1B status, you cease to maintain lawful status in U.S., and begin accruing unlawful presence. Under U.S. immigration regulations, employers must pay the reasonable costs of transporting the H-1B worker back to your home country. However, if the worker quits, the employer is not responsible for paying these costs. You might have heard that there is a grace period of ten days given to H-1B workers who quit, in order to allow them to wrap up their affairs and leave the country. However, this grace period is not written into the law, it is merely a discretionary USCIS policy, and thus could easily change. Q: As a physician, my J1 waiver application is pending, and I am in H1B status now fulfilling my three-year J-1 waiver obligation by performing medical services in a medically underserved area. If I quit my current job, will it jeopardize my J-1 waiver? and I am out of status? A: Your lawful status in US is dependent upon your continued employment with the U.S. employer. Once you quit, your status effectively ends. When you quit, your employer is legally obligated to inform USCIS that you are no longer working there. At that point, USCIS will revoke your petition approval. If you accrue more than 180 days of unlawful presence but fewer than 365 days, you are barred from reentering the U.S. for three years. If you accrue more than 365 days of unlawful presence, you are barred from reentering the U.S. for ten years. If you are in H-1B status because you are fulfilling your three-year J-1 waiver obligation by performing medical services in a medically underserved area, you may face additional consequences if you terminate your employment. These consequences include failing to comply with the provisions of your J-1 waiver and being forced to fulfill the two-year home residency requirement. Q: My employer will apply for H-1B visa soon for me. What is the detail of recent changes of the fee payments for H-1B petition? A: U.S. Citizenship and Immigration Services (USCIS) has published that for all H-1B petitions received on or after April 1, 2022, USCIS will no longer accept a single, combined fee payment when Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-765, Application for Employment Authorization; or Form I-824, Application for Action on an Approved Application or Petition, is filed together with an H-1B petition. Each of these forms received by USCIS should have its own fee payment instrument, or USCIS will reject the entire package. Only the fee for Form I-907, Request for Premium Processing Service, may be combined with the fee for a concurrently filed Form I-129 requesting H-1B classification. USCIS explained that it is transitioning to electronic processing of immigration benefit requests. As the agency completes this transition, it will be using multiple systems to receipt and process various types of immigration benefit requests. Because H-1B petitions and related applications are not all processed in the same system, USCIS said it requires a separate payment instrument for each of these forms. Q: I am a H-B visa holder and my Form I-485 application is pending. If I need to travel outide the US, do I have to receive an Advance Parole to get back to US later? A: An H-B visa or L1 visa nonimmigrant with a pending I-485 application may have to make a number of decisions before traveling abroad. There are risks and variables to weigh. It is unnecessary to file and get an Advance Parole to re-enter U.S. if the alien applicants have a valid H-1B visa or L1 visa and a pending  I-485 application. If an H-1B visa or L1 visa holder uses Advance Parole to enter U.S., their H-1B or L1 status will be canceled. After that, the foreign national would be referred to as a “parolee.” The H-1B or L1 employer allows a “parolee” to continue working in United States. However, they will not get legitimate H-1B status or L1 status until the employer has filed for an extension on their behalf, and has the application accepted by USCIS. However, this requirement is only applicable if the applicant’s visa would not have expired, if the applicant had not departed and returned under advance parole documents. Q: I am in the O-1  status, is the O-1 in dual intent same as H-1B status? A: Although the dual intent is recognized for both O-1 visa and H-1B visa on the question of labor certifications or immigrant petitions, O-1 nonimmigrants do not enjoy the same treatment as H-1B nonimmigrants after an application for Adjustment of Status Form I-485 is filed to USCIS. An H-1B applicant for Form I-485 Adjustment of Status who wishes to travel outside the U.S. and reenter while the I-485 application is pending can elect to travel either as an H-1B status, or on the basis of Advance Parole, if reentering the United States on advance parole. Although an O-1 applicant for Form I-485 Adjustment of Status can continue in O-1 status while an application for adjustment of status is pending, including filing for extension of O-1 stay when necessary, an O-1 adjustment applicant who wishes to travel outside the United States and reenter while the I-485 is pending must obtain advance parole (EAD card) before departing, or else the Adjustment Application will be considered abandoned. Reentering on advance parole would also require the alien to have an EAD card in order to continue working for the employer while the adjustment application is pending. Q: My H1B employment was terminated with notice period of only 3 days. Home many days of grace period that I have to stay in United States after the end of employment? A: The USCIS regulations permit a grace period that allows workers in H-1B, L-1, or O-1 visa and their dependents to have maintained status following the cessation of employment for up to 60 days. During this period, the alien workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request, such as the H-1B, L-1, or O-1 visa change of employer petition for an alien worker Alternatively, the alien workers may be able to remain in the United States in a period of authorized stay if they timely file an application to change to a new nonimmigrant status, such as B-2 visitor nonimmigrant status. The alien workers who are unable to timely file a change of status application, or find a new employer who timely files a change of employer petition for the worker, may be required to depart the United States at the end of this grace period. Q: My empoyer filed the H1B registration applications for me, but my application was not selected. What are the recent H1B registration applications fraud? A: U.S. Citizenship and Immigration Services (USCIS) announced the results of the fiscal year (FY) 2024 H-1B initial registration period and expressed concerns about fraud. During the registration period for the FY 2024 H-1B cap, USCIS saw a significant increase in the number of registrations submitted compared to prior years. For FY 2024, total registrations were 780,884, with 110,791 registrations selected. For FY 2023, there were 483,927 total registrations, with 127,600 selected. The total number of H-1B visas that can be issued each year is 85,000. USCIS said that the large number of eligible registrations for beneficiaries with multiple eligible registrations, which was much larger than in previous years, “has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This may have unfairly increased their chances of selection.” USCIS said that each petitioner signs an attestation under penalty of perjury, and that if the agency finds that the attestation was not true and correct, it may deny the petition or revoke approval, and may refer the petitioner for investigation and law enforcement action. “Based on evidence from the FY 2023 and FY 2024 H-1B cap seasons, USCIS has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating law enforcement referrals for criminal prosecution,” the agency said. Q: I am currently in my final year of STEM OPT, and will submit the H-1B cap registration. Can I submit severl applications: one from my current employer, and another from the affiliated company? A: It is unlawful for a single U.S. employer to submit multiple H-1B cap registrations for the same person. But there is no technical prohibition on a foreign worker having multiple companies submit a registration on his or her behalf, so long as it is predicated on a legitimate job offer that will be brought to fruition if selected. Nevertheless, USCIS views the actions of these companies as circumnavigating the lottery system by design, with the express purpose of inflating numbers. Unless there are truly two separate and legitimate job opportunities that can be thoroughly documented when the H-1B Petition is filed, related or affiliated companies are prohibited from submitting registrations for the same individual. Moreover, when there is no independent job opportunity, even unrelated companies may not act in concert to submit registrations to unfairly increase the chance of selection for the same individual. In fact, USCIS has recently been alleging fraud against employers that may have worked together to unfairly increase an individual's chance of selection, and will deny and revoke H-1B petitions in these circumstances. Q: What is the H-1B registration changes proposed by USCIS for H-1B lottery selection process? A: USCIS uses a lottery when companies file more H-1B applications or registrations than the annual limit of 85,000, which is 65,000 plus a 20,000 exemption for advanced degree holders from U.S. universities. According to USCIS, registrations for FY 2024 increased largely due to multiple registrations submitted for the same individuals. Due to the low annual H-1B limit, USCIS would have rejected over 75% of H-1B registrations for FY 2024, even if beneficiaries with multiple registrations were excluded from the lottery. Thus, USCIS has proposesd a solution, selecting H-1B registrations by unique beneficiaries. Under the proposed selection process, registrants would continue to submit registrations on behalf of beneficiaries and beneficiaries would continue to be able to have more than one registration submitted on their behalf. But the selection would be based on each unique beneficiary identified in the registration pool, rather than each registration. Each unique beneficiary would be entered in the selection process once, regardless of how many registrations were submitted on their behalf. If a beneficiary were selected, each registrant that submitted a registration on that beneficiary’s behalf would be notified of selection, and would be eligible to file a petition on that beneficiary’s behalf. If multiple unrelated companies submitted registrations for a beneficiary and the beneficiary were selected, then the beneficiary could have greater bargaining power or flexibility to determine which company or companies could submit an H-1B petition for the beneficiary, because all of the companies that submitted a registration for that unique beneficiary would be notified that their registration was selected, and they are eligible to file a petition on behalf of that beneficiary. Q: As a F-1 student, can I travel outside the U.S. during the cap-gap period between the F-1 academic program and the new H-1B job? A: Under certain circumstances, an F-1 student on the cap gap extension may travel abroad and seek readmission to the United States. However, if an F-1 student travels abroad before USCIS approves their H-1B change of status petition, USCIS will deem the petition abandoned. Many F-1 students inquire as to whether they may travel outside the U.S. during the cap-gap period between the academic program and the new H-1B job. The students generally should not travel while the H-1B petition and change-of-status request is still pending. The request will be considered abandoned, and the student may have to remain outside the U.S. while the H-1B application is adjudicated, and then apply for an H-1B visa after approval. However, the F-1 students whose H-1B applications and change-of-status requests are approved may travel abroad and reenter the U.S. in F-1 status prior to October 1st. The student must also have an unexpired F-1 visa, along with proper I-20s showing approved cap-gap and endorsement for travel. The student’s F-1 status will expire per the program end date listed on their Form I-20. Meaning, if a student leaves the United States before USCIS approves their H-1B petition, that student will not be able to re-enter the United States as an F-1 student pursuant to the cap gap extension provisions. Q: My employer registered the H-1B visa regular cap for me. What is the current status of the H-1B visa selection process for the fiscal year 2024? A: USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap, and the 20,000 H-1B visa U.S. advanced degree exemption as the master’s cap, for fiscal year 2024. USCIS will send non-selection notices to registrants through their online accounts. The not selected will not eligible to file an H-1B cap petition based on the registration. USCIS will continue to accept and process petitions that are otherwise exempt from the H-1B cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2024 H-1B cap. USCIS will continue to accept and process petitions filed to: Extend the amount of time a current H-1B worker may remain in the United States; Change the terms of employment for current H-1B workers; Allow current H-1B workers to change employers; and Allow current H-1B workers to work concurrently in additional H-1B positions. Q: I am a H-4 dependent spouse. My husband has obtained an H-1B extension beyond the 6-year limit because of his employment based Green Card application, can I apply for the EAD at this time? A: USCIS has implemented the regulation to allow some H-4 dependent spouses to obtain the Employment Authorization Document (EAD). One of the eligibility is based on H-1B spouse’s extension beyond 6 years. Under the second category of EAD eligibility, the H-4 spouse is eligible to apply for an EAD under the H-4 EAD rule, if the principal spouse has obtained an H-1B extension beyond the 6-year limit pursuant to specific provisions of AC21. The provisions in question are contained in the AC21. The regulation allows an H-1B nonimmigrant to extend status beyond the six-year standard limit in one-year increments, and the H-4 dependent spouses can obtain the Employment Authorization Document (EAD).

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