FAQ: General information about H1B visas and status
Return to main "H1B Issues" pageQ: What is an H-1B visa?
A: The H-1B visa is issued to nonimmigrant 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.
Q: What are the requirements for getting an H-1B?
A: All H-1B workers must begin with a petitioning employer. It is not possible to be a self-employed H-1B worker. The petitioner must have a legitimate job opening available and must agree to pay the alien worker the prevailing wage for the occupation in the area where the work will be done. The job must be one which customarily requires a bachelor's degree as a minimum entry requirement and the alien worker must either have such a degree, or equivalent work experience.
Q: How do I apply for an H-1B?
A: The petitioning employer begins by filing a labor condition application ("LAC") with the Department of Labor. When the LCA is returned with the DOL endorsement stamp, the employer may then file an H petition with the USCIS Only after the H petition has been approved and change of status granted, or a nonimmigrant H visa issued, may the alien worker begin working for the employer.
Q: Do I need a new petition if I change employers?
A: Yes. A nonimmigrant H-1B worker may not begin working for a new employer until the USCIS has first approved a petition for such a change. Unless and until the change is granted, the employee may not work.
Q: Do I need a new petition if I change job sites?
A: In most cases, yes. Unless the original petition provided for multiple job sites, and the employer has a valid LCA for the new job site, your employer will have to file a new petition on your behalf before you may work at the new job site.
Q: Do I need a new petition if I get promoted?
A: If the new position is different from the one described in the approved H petition, your employer must file a new petition on your behalf. If the changes are only minor, then it may not be necessary. You should always check with an expert, however, to make sure that you do not inadvertently violate your status.
Q: Do I need a new petition if my company is merged, acquired, or reorganized?
A: The American Competitiveness in the Twenty First Century ("AC21") Act amended the law to permit companies to continue to employ H-1B professionals without the need for petition amendments in certain cases involving corporate mergers, acquisitions, or reorganizations. In such cases, the "new" employer must accept complete liability for all immigration matters involving the "old" employer. Also, if the employer invokes this provision to avoid having to file a new petition, the H-1B employee may continue to remain in the U.S. and work, but not travel using the existing petition approval.
Q: Can I work before the approval is granted?
A: Maybe. Until the USCIS approves the petition, any work by a non-H1B nonimmigrant will be considered unauthorized. Even if the petition has been approved, the employee still may not work unless it also contains a change of nonimmigrant status. In this case, the employee must go abroad, obtain an H visa, and then reenter the U.S. to begin work. On the other hand, if the employee already holds H status or an H visa, then the employee may begin work as soon as the new H petition has been received by the USCIS
Q: What is "H-1B portability"?
A: The AC21 legislation created a new benefit for H-1B nonimmigrants. This benefit, known as "H-1B portability" permits a person who either presently holds H-1B status, or who in the past has been issued an H-1B visa or has held H-1B status, to begin working for a new H-1B employer before the new employer's H-1B petition has been approved.
Q: How soon can I work after my new employer files an H petition for me?
A: If the beneficiary of the H-1B petition filed by the new employer has not worked without authorization and is in valid nonimmigrant status when the new petition is filed, he or she may begin working for the new employer immediately. This is true even if the employee does not currently hold H-1B status, provided he or she had previously held H-1B status or had been issued an H-1B visa.
Q: Can I travel while my new petition is pending?
A: If an employer files an H-1B petition for someone who qualifies for H-1B portability, the employee may travel abroad while the new petition is pending. If the employee already has a valid H-1B visa (for the old employer), he or she may travel using a combination of the old visa and the receipt notice for the new petition. If the employee does not have a visa, then the employee will have to apply for a new H-1B visa to return to the U.S. In this case, the employee must present the approval notice for the old petition, together with the receipt notice for the new petition.
Q: Can I work for other employers?
A: Not without USCIS permission. It is possible to have USCIS permission for employment with more than one employer at a time, but it requires separate H petitions. In the absence of explicit permission, however, an H employee may not work for any employer other than the one for which the petition was granted.
Q: Do I have to get a new visa if I change employers?
A: Generally speaking, no. The State Department has said that an H visa issued for one employer remains valid for subsequent employers, provided the USCIS has granted permission for the worker to change employers. The only problem would be if the first employer notified the USCIS that it wanted the first H petition revoked. In that case, the visa would become void.
Q: Do my spouse and children have to get new visas when I change employers?
A: Not necessarily. If they have unexpired H-4 visas that were issued when you worked for the previous employer, they may continue to use them. For all practical purposes, an H-4 is an H-4.
Q: If I apply for a change of employer or an extension of stay, am I subject to the cap?
A: No. Once you have been granted H-1B1 status, you are no longer subject to the cap, even if you change employers or extend your status.
Q: When does the employer have to pay the $750 to $1,500 surcharge?
A: When an employer initially petitions for an H-1B1 worker, the employer must pay the $750 to 1,500, surcharge. In addition, the employer must also pay the $750 to $1,500 surcharge the first time the petition is extended.
Q: Is it permissible for the employee to pay the $750 to $1,500 surcharge?
A: No. Under no circumstances may the employee pay the $750 to $1,500 surcharge.
Q: What happens if the employee needs to extend status as a result of a trip abroad?
A: Sometimes, when an H-1B employee returns from a trip abroad, the CIS officer at the port of entry will give the employee an authorized stay that is less than the full duration of the petition. For example, a petition is valid for two additional years, but the CIS officer only gives a one year stay. In this case, the petitioner may apply for an extension of stay through the end of the petition without having to pay the $750 to $1,500 surcharge.
Q: Now that my employer has obtained an LCA for me, can this be used for immigration?
A: The acronym "LCA" refers to a labor condition attestation. This is a document that is filed in connection with an H-1B petition. It has nothing whatsoever to do with an alien labor certification. A labor certification is used to qualify someone as an employment based immigrant. A labor certification is something entirely different from an LCA. An LCA cannot be used for any purpose having to do with employment based immigration.
Q: What is "premium processing"?
A: This is a euphemism for paying an extra fee to get the USCIS to do the job they are otherwise being paid to do. Seriously, it is a program that allows someone to pay an extra $1,225 and receive a guarantee that their case will be adjudicated within 15 calendar days. If it is not, they get their money back. Premium processing does not apply to all types of petitions and applications. It does, however, apply to H-1B petitions.
Q: If my employer files my case under premium processing, does it cover my spouse and children as well?
A: If the employer files the I-539 for the spouse and children together with the H petition for the employee, and puts them in the same premium processing package, then the I-539 will be processed within 15 days also. If it is not submitted at the same time, however, it will not be given premium processing.
Q: How long will I remain in status if I lose my job?
A: An H-1B employee who loses his or her job also loses H-1B status immediately. There is no "grace period" authorized by law. Some CIS offices will allow an applicant a few days or weeks to apply for other nonimmigrant status, but this is a matter of individual discretion on the part of the CIS adjudicator, not something guaranteed by law.
Q: What can I do to protect myself if I lose my job and am looking for a new job?
A: If you learn that you are going to lose your job, you need to take immediate action to protect your nonimmigrant status. One method would be to file an immediate application for change of nonimmigrant status to B-1. Explain to the CIS that you have just lost your job and that you wish to go into B-1 status while you are looking for a new job. Get this application on file before the end of your last working day and you will be protected while it is pending. If you find another position, the new employer can file a new H petition on your behalf and you may begin working as soon as the CIS receives the new petition. The employer's petition should reference your pending B-1 change of status application and notify the CIS that it is a superseding application.
Q: Does my employer have to pay the salary shown on the LCA?
A: Yes, absolutely. The employer must pay at least the salary shown on the LCA. If the employer does not, it is responsible for back pay and fines.
Q: When is it acceptable for an employer to bench me?
A: An employer may ask an H employee to not work, but unless the employer continues to pay the full salary shown on the LCA, the employer is in violation of the law. Unless and until an employer informs the CIS that it wishes to revoke the approved H petition and terminate the employee, the employer remains legally obligated to pay the full salary shown on the LCA. If an employee is paid less than the full salary shown on the LCA, the employee is out of status.
