Frequently Asked Questions about H-1B
What is USCIS?
A: USCIS stands for United
States Citizenship and Immigration Services. It is the agency of the U.S. government principally responsible for
matters dealing with aliens in the United States. Such responsibilities
include jurisdiction over immigrant and nonimmigrant petitions.
What is DOL?
A: DOL stands for
Department of Labor.&The DOL is responsible for the prevailing wage and
the Labor Conditions Application (LCA) aspects of an H-1B petition.
What is an H-1B?
A: H-1B is a nonimmigrant
visa or status allowing skilled professionals in specialty occupations to work
in the U.S.
on a temporary basis. The employer in the H-1B application process is the
petitioner while the alien is the beneficiary. The alien usually must possess
at least a bachelor's degree or an acceptable foreign alternative, although
sufficient work experience may substitute for education requirements. Usually
H-1B status is given to engineers, professors, researchers, software
programmers and other foreign professionals.& Aliens normally can work for
a total of 6 consecutive years in the U.S. in H-1B status.
What are the steps required to file an H-1B petition?
A: The following steps are
generally required to file an H-1B petition:
Obtain a job offer
from an employer located in the U.S.;
Obtain the
prevailing wage for your job from the National Prevailing Wage Center
File a Labor
Condition Application (LCA) and obtain approval from the DOL;
Complete USCIS's
H-1B forms, and include a petition letter prov
Submit a completed
and signed H-1B petition to the USCIS.
will walk our clients through steps 2, 3, 4, & 5.
What is a Prevailing Wage?
A: A Prevailing Wage rate
is defined by the DOL as the average wage paid to similarly employed workers in
a specific occupation in the geographic area of intended employment.
The employer will pay the H-1B employee the higher of:
The actual wage
rate that it pays to all other individuals with similar experience and
qualifications, or
The prevailing
wage level for the occupation in the “area of intended employment”, which
is defined as the Metropolitan Statistical Area (MSA) and the narrower
Primary Metropolitan Statistical Area (PSMA).
Which government agency determines the Prevailing Wage?
A: Effective January 4,
2010, the Prevailing Wage is determined by the National Prevailing Wage Center
(NPWC). The SWA will no longer be involved in determining the Prevailing Wage.
What are the key factors in determining the “Prevailing Wage” for a position?
A: Factors determining
prevailing wage include:
Educational and
Type of employer,
i.e. academic, government or private.
and Ron are both professors of biochemistry who have the same educational
experience and fulfill the same job descriptions.& John is employed by a
university in New York City, while Ron is employed by a college in Houston, Texas. Due to the
differences in location and cost of living at these locations, the prevailing
wage for John is higher than the prevailing wage for Ron.
and Ryan are researchers in chemistry, both living in Seattle, Washington, and
their jobs require the same level of education and work experience.& The University of Washington hires Jen, while a private
company employs Ryan. Since they are employed in different sectors (i.e. Public
v Private sectors), their prevailing wages will be different and Jen’s
prevailing wage is much lower than Ryan’s prevailing wage.
and Chris are researchers in chemistry, both live in Washington D.C.
and have similar educational background and work experience. The same private
company employs both of them, where Lisa is a research scientist while Chris is
just a post-doctoral researcher.& Since Lisa has a higher job title and
her job description encompasses more, Lisa’s prevailing wage will be higher
than Chris’s.
How long does it take for Z&A to obtain the prevailing wage level for my
job position?
A: Generally, we can
obtain your prevailing wage level on the same day that you ask us to do so.
How long does it take for Z&A to obtain Labor Condition Application (LCA)
approval from the Department of Labor?
A: Through electronic filing,
we can generally obtain a certified Labor Condition Application within 7 business
days from the date that the ETA Form 9035 is submitted.
Who is eligible for the Premium Processing program?
A: Premium Processing
services are available to those employers who file a Form I-129 to classify a
beneficiary under one of the following categories: E-1, E-2, H-1B, H-2A, H-2B,
H-3, L-1, O-1, O-2, P-1, P-2, P-3, TN, R, and Q-1.
What is the Premium Processing fee?
A: The fee for this
service is $1,225. 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.
How long does it take to obtain H-1B status?
A: It usually takes two to
three months to have an H-1B approved by USCIS. However, the alien worker or
the sponsoring employer may request “premium processing” by paying a $1,225
premium processing fee. With premium processing, the case will be processed
within 15 calendar days or the $1,225 premium processing fee will be refunded.
for more information on
Processing Times.
What are the merits and drawbacks of premium processing?
A: The merits of premium
processing include receiving a decision within 15 calendar days of the receipt
of the application by the USCIS.& This means that you will receive a
decision sooner and know about your application status sooner. However, if the
quota has already been reached at the time of filing and the petition is
subject to quota, the USCIS will reject the petition just as it does
non-premium processing cases.&
The drawback of premium processing is the steep $1,225 fee.& However, if
USCIS does not process your application within the 15 calendar days, they will
refund the employer the entire $1,225 premium processing fee.
I have an undergraduate degree from a foreign country. May I still obtain H-1B
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
Our firm helps our clients obtain foreign degree evaluations through a third
party credential evaluation service.
What do I need to know regarding the educational requirements for H-1B?
A: The educational
requirements specify that the alien must possess at least a bachelor's degree
or its equivalent. If the applicant was awarded a degree from an institution
outside of the U.S., that
degree must be evaluated to determine if it is comparable to a U.S. awarded
degree. If the alien possesses a U.S. degree or its equivalent, no
prior employment experience is required. Sufficient professional work
experience may be substituted for years of education, wherein every 3 (three)
years of professional work counts as 1 (one) year of bachelor’s education
Furthermore,
the degree received by the alien and the job the alien wishes to perform must
be related. For example, in order to apply for an H-1B, a stockbroker should
have a degree in finance or economics, a journalist should have a degree in
journalism or writing, etc.
wishes to come to the United States
from Germany
to work as a stockbroker. Unfortunately he does not have a degree in a field
related to securities brokering, only a bachelor’s degree in political science.
He has only been a stockbroker for one year in Germany. As such, he does not meet
the educational requirements for H-1B.
is from India, has a bachelor’s degree in physics and wishes to come to the US as an
engineer.& In order to do so, she needs to apply for an H-1B visa.&
She meets the educational requirements for the H-1B visa, since she has a
bachelor’s degree in a field that is related to the intended occupation.
I have an associate’s degree requiring only two years of education in a college
in my home country. Can my work experience replace the additional required
college education I am lacking?
A: Yes, work experience
can be substituted for the required degree.& If an alien does not meet the
educational requirements, degree-equivalent experience or training may be
substituted, whereby three years of professional experience is considered
equivalent to one year of college education.
has a two-year associate’s degree in computer science obtained in China and has
been working as a network analyst for more than 6 years.& He wants to
apply for an H-1B visa to work in the United States.& The
educational requirement has been fulfilled by his two-year associate’s degree
and his 6 years of work experience (which is considered equivalent to 2 years
of college education) as a network analyst. Therefore he can apply for the H-1B
I do not have an educational degree at all, may I still qualify for H-1B?
A: Perhaps. It may be possible to qualify for H-1B
status without holding a bachelor’s degree if an alien has sufficient
professional work experience in a field related to the H-1B position. If an
alien has no education, a minimum of 12 years of professional experience may
substitute for a 4-year bachelor’s degree (every three years of work experience
counts as one year of post-secondary education). Time spent in uncompleted
degree programs may also be used to meet H-1B education requirements if there
is accompanying professional work experience and a detailed credential
evaluation is obtained.
Cristal wants to come to the United States on an H-1B visa to
work as a systems analyst. Cristal has never gone to college but has extensive
experience working as a systems analyst: she has been working in the position
for the past 12 years. Even though Cristal does not have a bachelor’s degree,
she may still qualify for an H-1B based on substituting her years of experience
for educations. Since every 3 years of work experience can substitute for 1
year of education, Cristal’s 12 years of working as a systems analyst will
substitute for 4 years of bachelor’s level education, the minimum requirement
Juan is a computer programmer. Juan attended college for a bachelor’s
degree program. After 3 years of the program Juan quit studying and started
working as a computer programmer for the next 3 years. Even though Juan did not
complete his bachelor’s degree program, his 3 years of study may still be used
towards meeting the H-1B education requirement. With a detailed credential
evaluation, Juan’s 3 years of college study combined with his 3 years of
professional work experience will be considered the equivalent to 4 years of
post-secondary education.
What is the H-1B Cap?
A: Established by the
Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers
to augment the existing labor force with highly skilled temporary workers. H-1B
workers are admitted to the United
States for an initial period of three years,
which may be extended for an additional three years. The H-1B visa program is
utilized by some U.S.
businesses and other organizations to employ foreign workers in specialty
occupations that require theoretical or technical expertise in a specialized
field. Typical H-1B occupations include architects, engineers, computer
programmers, accountants, doctors and college professors.
H-1B “Cap” refers to the annual numerical limitation set by Congress on the
number of workers authorized to be admitted on H-1B visas or authorized to
change status if already in the United
States. Therefore, there are two ways to be
counted against the cap: applying for an H-1B visa or changing status to H-1B
from another non-immigration status visa (such as F-1, L-1, J-1, etc.)
What is the current H-1B “quota”?
A: For the current Fiscal
Year of 2008, the quota for H-1B visas is 65,000.&Among the 65,000
standard spaces, 6,800 are set aside for the H-1B program under the terms of
the U.S.-Chile and U.S.-Singapore Free Trade Agreement. These 6,800 spaces are
reserved for Singaporean or Chilean citizens. Therefore, the actual H-1B quota
is 58,200 for aliens outside of these two countries. &However, 20,000 new
H-1B visas are available for those foreign workers who obtained a master’s or
higher level degree from a U.S.
academic institution.
What kinds of H-1B petitions are not subject to the yearly “quota”?
A: The following H-1B
petitions do not count against the yearly “quota”:
Petitions for H-1B
H-1B petitions
sponsored by institutions of higher education (or a related or affiliated
nonprofit entity), governmental research organizations, or nonprofit
H-1B petitions for
concurrent employment where the alien worker is presently in H-1B status
which was subject to the H-1B
H-1B petitions to
change employers where the current H-1B is subject to the H-1B
People who have had
H-1B status in the past six years that took up space on the H-1B quota
Those seeking H-4
dependent status (spouse or children of H-1B visa holder)
Is there an annual limit on the number of H-1B aliens?
A: Yes, this is the above
mentioned H-1B cap or “quota.”
What are the major requirements for an H-1B employer?
A: Two major requirements
need to be met:
The H-1B employer
must have the ability to pay. For instance, John wants to hire a computer
programmer for his start-up company. He promises to pay an alien worker
$50,000 a year. However, he currently has only $800 in his company’s bank
account. Under this circumstance, John fails the “ability to pay” test.
The job offer to an
intended H-1B beneficiary should be a bona fide offer. In other words,
there must be real business needs for the position to be filled by the
alien worker.
It is impossible to list all of the relevant information a prospective H-1
employer/petitioner needs to know. To see what specific requirements apply to
your case, it is best to obtain legal advice from an experienced attorney.
What kind of legal responsibilities do employers have to assume for their H-1B
employees?
A: Legal responsibilities
for an employer are as follows:
The employer will
pay the H-1B employee the higher of:
The actual wage
rate that it pays to all other individuals with similar experience and
qualifications, or
The prevailing
wage level for the occupation in the metropolitan statistical area
Employment of the
H-1B worker will not adversely affect the working conditions of workers
similarly employed in the intende
There is no current
strike/lockout involving the prospective H-1B worker's position at his/
The employer will
provide notice of filing of the labor condition application to the
employees’ collective bargaining representative for the H-1B occupation
or, if lacking such a representative, will conspicuously post such notice
at the work site for 10 days on or within 30 days before the date of filing
the Labor Condition A
The employer will
maintain for public examination:
A copy of the
Labor Condition Application filed,
Documentation of
the salary paid to the H-1B employee,
An explanation of
how the actual wage was determined, and
Documentation of
the basis used for
The employer must
agree to pay the alien the reasonable cost of transportation to return to
his or her home country if the employer terminates employment prior to the
end of the authorized employment period.
Depending on the type of violation committed by the
employer, civil penalties may be assessed ranging from $1,000 to $35,000 per
violation.& Furthermore, employers who commit certain violations may be
prohibited from participating in the H-1B program or other immigrant programs
for a minimum of one year.
What are the major requirements for an H-1B employee?
A: The major employee
requirements for H-1B are listed below:
occupation: a specialty occupation requires theoretical and practical
application of a body of specialized knowledge. Examples of specialty
occupations include but are not limited to: engineers, nurses, professors,
researchers, computer programmers and other professionals.
Educational
requirements: the position usually requires that the alien possesses at
least a bachelor's degree or its equivalent. If the applicant was awarded
his/her degree from an institution not located in the U.S., that degree
must be evaluated to determine if it is comparable to a U.S. awarded
degree. If the alien possesses a U.S. degree or its equivalent,
no prior employment experience is required.
Work experience: if
an alien does not meet the educational requirements, degree-equivalent
experience or training may be substituted, whereby three years of
professional experience is considered equivalent to one year of college
education.
Neil is from India
and has been working as a network analyst for more than 6 years.& He only
has an associate’s degree in computer science with 2 years of college
education, but wishes to apply for H-1B status so he can work in the United States
in the same occupation.& The minimum educational requirement has been met
because every 3 years of related work experience can substitute for 1 year of
college education, hence 2 years of college education can be substituted by 6
years of work experience. This experience in combination with his 2 year
associate’s degree meets the minimum 4 year education requirement.
Licensure: if a
license is required under state law to practice a specific specialty
occupation, the alien worker must hold the appropriate license.
It is impossible to list all relevant information a prospective H-1 worker
needs to know. To see if you qualify for an H-1B visa/status, it is best to
obtain legal advice from an experienced attorney.
What is “benching” of H-1B employees?
A: Previously, benching
was when an H-1B employer would stop paying an H-1B employee when the alien’s
work was not needed. If business slowed down or the alien did not have work to
do employers would stop paying them and only start paying them when business picked
up and the alien’s labor was needed. Essentially, benching was a situation
where an employer only paid the H-1B employee when it was deemed necessary. According
to the Department of Labor, benching of H-1B employees is no longer
allowed.&If business is slowing down or the H-1B employees have no work to
do, the employer must continue to pay the H-1B employee for his/her wages or
terminate the employment.
In other words, the only way the employer can stop paying an H-1B wages is by
bona fide termination of the employment. An employer cannot pay H-1B wages only
when it deems it beneficial to do so.
as an H-1B employee, works for Company A which manufactures seasonal products.
During the summer the demand for their products is very low, so production is
low and Kevin has little or no work to do.& Kevin’s employer must either
lay him off or continue to pay him his wages even if Kevin is not performing
Can I apply for multiple H-1Bs?
A: Yes, you can apply for
multiple H-1Bs.&You are allowed to work for more than one U.S. employer,
but must have an I-129 (Petition for Non-immigrant worker) filed by each
long as you are in H-1B status and have been counted against the H-1B quota in
the past six years, your petition to work for another employer concurrently is
not subject to the cap.
is currently working for Company A as an H-1B holder, which is subject to the
H-1B cap. He wishes to work for Company B as well. In order to do so, he must
have Company B file an H-1B petition for him and then he will be eligible to
receive another H-1B, which will not be subject to the cap limitations, since
he already gained H-1B status that had been subject to the cap.
May I have a part-time H-1B? If I currently have H-1B status from my full-time
employer, is there anything I need to do?
A: Yes, you may have a
part time H-1B.
employer may petition for a part-time H-1B for you. As long as your work hours
are at least 50% of the normal full time hours in your industry and you satisfy
all other requirements for an H-1B, you are eligible to possess part-time H-1B
you have H-1B status already, you can apply for a concurrent H-1B for another
part-time job. In this situation, there is no set number of hours that the
beneficiary must work for each employer. You should ask the new prospective
employer to apply for a part time H-1B visa on your behalf. You may keep two or
more concurrent H-1Bs.
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 the applicable fees, similar to the initial H-1B petition filed by your
current employer. It generally takes between two to three months to obtain
approval of an H-1B petition submitted by a new employer. However, you may
begin working for your new employer as soon as the new H-1B petition is filed
with USCIS under the new H-1B laws, provided that the H-1B quota issue does not
exist in your case. Please refer to the following question for an explanation
of the H-1B transfer quota issue.
My current H-1B sponsor is a higher education institute, which is eligible for the
H-1B quota exemption. Now I want to change my job to a private company. Can I
work for the private company as soon as a new H-1B is filed by the company?
A: Only once the H-1B
quota is available for your new H-1B petition or if you had H-1B status
in the past six years that was subject to the H-1B quota.
How long in advance can I apply for an H-1B prior to the actual starting date
of H-1B employment?
A: You may apply for a H-1B
visa six months prior to the commencement of the employment petitioned, but no
earlier than six months.& For example, if the starting date of your
employment as an H-1B status holder is 11/30/12, then you can submit an
application for an H-1B visa as early as 5/30/12.& It is important to
apply for the visa as early as possible (for the time being, this means as
early as 6 months before your start date) due to the fact that the H-1B quota
is currently being filled very quickly. For instance, the H-1B cap for fiscal
year 2013 was met on June 11, 2012, over 3 1/2
months before the start of the next
fiscal year! The earliest a petition can be filed for the coming fiscal year is
August 1st with an October 1st start-of-employment date.
When may I legally begin to work for a new employer if my current H-1B
employment status was subject to the H-1B Cap?
A: As soon as the new H-1B
petition is filed on your behalf with the USCIS.
is employed by Company A with his H-1B status sponsored by Company A; his H-1B was
subject to the cap. Now Sam would like to work for Company B. Sam may quit his
job with Company A immediately after Company B has submitted an H-1B petition
on his behalf with the USCIS.
Does my previous employer have to cancel my H-1B?
What documents regarding my first employment do I need to present for a new
H-1B petition filed by a new employer (employer transfer)?
A: Whenever you transfer
from one H-1B employer to another, the USCIS may ask you for evidence that you
have maintained proper H-1B status by working for the previous employer. This
evidence usually includes paycheck stubs and possibly an employment
verification letter.
While working for Employer A, I was in H-1B status. I quit working for Employer
A and converted to H-4 (spouse/children of H-1B holder) status. Now, another
employer has issued me a job offer and has applied for an H-1B on my behalf.
May I begin working for Employer B without waiting for H-1B approval?
A: Potentially. If your
first H-1B with Employer A was, within the past 6 years, subject to the H-1B
quota you will be able to begin working for Employer B at the time of the H-1B
petition’s submission. If your first H-1B was not subject to the H-1B quota and
your new employer is not also H-1B cap exempt, you cannot begin working for
Employer B until the H-1B petition is filed and the H-1B quota is available for
the new H-1B petition.
How do I know my H-1B transfer has been filed with the USCIS?
A: An H-1B transfer
receipt received from the USCIS is confirmation that your H-1B transfer was
successfully filed with the USCIS. A certified return receipt for an H-1B
transfer petition issued by any post office branch should also be sufficient
evidence that your H-1B transfer has been filed. Moreover, a delivery
confirmation by an express mail company may also serve as confirmation of
Q: I was previously in
H-1B status but am now in F-1 (student) status and would like to re-apply for H-1B
status. Is my new petition for H-1B status subject to the H-1B quota?
A: If your previous H-1B was subject to the quota within the
past six years, you are not subject to quota cap. However, if you have been out
of the U.S.
for more than one year, you are now subject to the quota cap, regardless of
whether or not your previous H-1B position was subject to the quota.
As a Current H-1B employee&who has been counted against the H-1B quota,
what do I need to know about the “portability rule”?
A: A current H-1B
employee, already counted against the H-1B quota in the past six years, may
start to work for a new employer upon the filing of a new petition by that
employer. You do not have to wait for the petition to be approved before
starting work for an employer in this situation.
is from Taiwan
on H-1B status, and is subject to the H-1B quota. He has only worked for his
current employer for 1 year, and now wishes to change employers.& Todd
finds a new employer, Company X. Company X files an
H-1B petition for Todd, so that he can work for Company X. The petition is
filed on January 23, 2012 and Todd can begin working for Company X on that same
Can a US employer discharge
an H-1B employee because there are other qualified US workers available? Under this
circumstance, can the discharged H-1B employee have any discrimination claim
against the US
A: Yes, the US employer can replace H-1B workers with
qualified US
workers.& The H-1B employee has no claim to discrimination since a US employer has
the statutory right, but not the obligation, to give job preference to US
workers over H-1B workers. But, when an H-1B employee is hired, s/he cannot be
treated different from other similarly situated US workers.
X employs many H-1B employees and recently has found US workers with the same
qualifications as some of their H-1B employees. Company X decides to fire all
their H-1B employees and hire qualified US workers to take their place.
Company X is not committing a violation and cannot be sued by the terminated
H-1B employees for discriminating against them.&
I am anticipating that my current employer is going to lay off many H-1B
employees, myself included.& What should I do if I want to stay in the U.S.?
A: In anticipation of the
coming layoff, you have the following options:
You should actively
seek other employment opportunities and get a new employer willing to file
a new H-1B petition for you before you are laid off by your current
employer. Bear in mind that a part time job also qualifies for H-1B petitioning
If you decide to go
back to school, you should start the application process as early as
possible to get an I-20 before being laid off.& This will enable you
to quickly change to F-1 student status. Bear in mind that many community
colleges can issue I-20s on the same day the application for admission is
filed, provided all requirements are met.& This offers a temporary
choice for H-1B holders to keep lawful status in the U.S. after
being laid off.
Aliens with
dependent spouses should encourage their spouses to seek job opportunities
or to apply for academic programs, and to get independent status, (i.e.,
H-1B or F-1), so that they may change their status to be dependent on
their spouses' (H-4, or F-2) after being laid off.
Those who have a
relatively strong research background might be able to qualify for
permanent residency under EB-1 and/or EB-2 NIW. During the pending period
of their petitions, they should try to keep independent non-immigrant status.
If that's not possible, we suggest that they consult with experienced
attorneys regarding filing Forms I-140 and I-485 concurrently, which gives
them valid I-485 pending status. Please be aware that the concurrent
filing option may not be available for nationals of India, China and perhaps other
countries for EB-2 NIW because of the visa backlog.
Can H-1B employees take a long unpaid leave for personal reasons/family
reasons/maternity reasons while still remaining in valid H-1B status?
A: Yes, H1-B employees may
take long unpaid leave without having their status affected.& Keep in mind
that if leave is taken, one will not be paid. Furthermore, the employers may
terminate employment at any time for any or no reason at all. If employment is terminated,
the alien is out of H-1B status immediately. Contrary to
popular belief, there is no so-called “ten-day
grace period.” However, in practice, an H-1B employee who is out of status for
less than ten days would have a reasonable likelihood of having this out of
status period disregarded by the USCIS. As a result, upon termination by the
prior employer, the alien must file for a change of status as soon as possible.
My employer's business has shrunk dramatically. As a result, he asked me to
take a 3-month unpaid vacation/leave and come back to work thereafter. Will I
be considered to be out of valid H-1B status?
A: Yes, you will be
considered to be out of status if your employer asks you to take unpaid
vacation/leave. Moreover, the employer is considered to be “benching” you, which
is a violation of immigration law.
What if my employer asks me to take vacation/leave, but still pays me full
salary - will I be considered to be out of valid H-1B status?
A: In this scenario, you
won't be considered to be out of valid H-1B status.
What if my employer asks me to take vacation/leave, but pays me partial salary
-, will I be considered to be out of valid H-1B status?
A: It depends on many
things, including your employer's salary schedule, your overall compensation
from your employer, etc. We suggest that you consult with experienced attorneys
regarding this scenario.
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 recourse?
A: Your employer may
withdraw both your job offer and your H-1B petition before the H-1B petition is
approved. Unfortunately, you do not have any legal rights against your employer
if, as in most cases, your employment is at will.
I am in H-1B status now but have been laid off by my employer. How long is the
grace period that allows me to keep legal status?
A: You do not have any official
grace period from the date that you are fired or laid off. In other words, you
must file for a change of status before the date your employment is terminated.
If you fail to do so, you may be out of status on the termination
date.&However, as a practical matter, USCIS usually disregards any
out-of-status period less than 10 days for H-1B.
I am in H-1B status now. If I am laid off, what must I do if I want to remain
in the U.S.?
A: You may need to change
to another non-immigrant status, such as an F-1, F-2, or H-4 status as soon as
possible.&As long as you file your change of status application in time,
you will be allowed to remain in the U.S. while your case is pending.
I am not in H-1B status and my employer submitted the H-1B petition for me
before the expiration date of my current status. My status has now expired but
I still have not heard anything from USCIS regarding my petition. May I legally
remain in the U.S.?
A: It depends on whether
or not the H-1B quota was immediately available to you when your status expired.
If the H-1B quota was available at the time of expiration of your previous
status and the employment starting date listed on the H-1B application is on
the date of your status expiration
you may remain in the U.S.
legally. &Otherwise, you will be out of status.
While my H-1B is pending, may I legally work for my employer?
A: If you have never been
in H-1B status before and you do not have another permit to work (such as OPT
or EAD), you cannot work until the H-1B is approved. If you are doing an H-1B
transfer and there is no H-1B quota issue existing, you may legally work for
the new employer as soon as the new H-1B petition is filed with the USCIS.
In what situations can an H-1B holder extend H-1B status after the end of 6
years (H-1B’s legal maximum period)?
A: There are only two
situations in which an H-1B status holder can extend his/her visa status beyond
the 6-year limit.
If the H-1B holder
has filed either a Labor Certification application or an I-140 petition
365 days before the expiration of their six-year limit, and the LC or
I-140 process is still pending, the H-1B visa holder may extend his or her
H-1B on an annual basis beyond the six-year limit.& There is no upper
limit on the total years H-1B status can be extended under such
circumstances as long as the immigration process is still ongoing.
Mr. Park’s employer filed a PERM for him one month before Mr. Park
reaches the 5th year anniversary of his H-1B.& The PERM has been delayed due to auditing.&
Next month, Mr. Park is going to reach the final year of the 6-year limit on
his H-1B status.& Mr. Park’s employer may file an extension for Mr. Park
now that extends his H-1B beyond six years.
Assuming Mr. Park’s PERM is approved before the sixth year
anniversary of the H-1B, and Mr. Park has filed his I-140 and I-485 and both
case are pending, Mr. Park will be able to extend his H-1B.
If an H-1B visa
holder has an approved I-140 petition AND the immigrant visa number is not
available for him/her due to visa retrogression (and he/she is thus not
eligible to file for an I-485), the H-1B visa holder may extend his/her
H-1B on a three-year interval beyond the 6-year limitation.& There is
no 365-day requirement for this circumstance.&
Mr. Wang is an engineer from China and he retained our firm for a PERM case when he only
had about ten months left for his total six-year H-1B period.& Our firm
successfully
attained PERM approval for him within six months and
filed his I-140 petition immediately.& Due to the visa retrogression for
Chinese nationals, Mr. Wang was unable to file his I-485 together with his
I-140.& Fortunately, his I-140 was approved within three months, exactly one
month before he reached the six-year H-1B limitation.& We filed an H-1B
extension request for Mr. Wang based on the approved I-140, and received H-1B
approval for three years.
Dr. Rajeev from India filed his NIW I-140 petition
through our firm about six months before he reached his six-year H-1B
limitation.& His I-140 was approved in three months.& Dr. Rajeev is
not eligible to file for an I-485 due to immigration visa number
retrogression.& Dr. Rajeev is eligible to extend his H-1B for three years
based on his approved I-140.
It is also possible for an H-1B
worker to “recapture” time spent abroad during H-1B status. The 6-year
limitation for H-1B is based on 6 years of stay in the United States. So
if an alien entered the United States
and never left until the expiration of the status he/she could only stay in the
for 6 years. However, if an alien traveled outside of the US during H-1B status, the time spent outside of
the United States
may not be counted against the 6-year limit. An H-1B alien must request to
“recapture” time spent abroad, as the USCIS will not automatically extend H-1B
statuses based on time spent abroad.
How can one resume H-1B status as if it were a brand new H-1B with another 6
year limitation period?
A: The individual must
depart from the U.S.
for at least one year before qualifying again for H-1B status with another
6-year period.& After the individual has departed from the US, s/he must
undergo the same application process that was necessary for his/her first H-1B
visa.& This includes securing an employment offer, submitting Form I-129,
getting approval of the petition, and applying for a visa with the US consulate
or embassy that has jurisdiction over an alien’s place of residence abroad.
an Indian citizen, has reached the limit on the number of years she can remain
in the United States within
H-1B status, but she wishes to work in the US for another 6 years.& J
therefore, returns home to India
for one year. After she has an employment offer, Jen’s employer must submit Form
I-129 and wait for the approval of this petition, after which she can apply for
a visa with the US consulate in India. Upon approval of her application, she
may return to the US
for up to 6 more years, provided her extension is approved after the first 3
Is there a relationship between applying for an H-1B and applying for an
immigrant petition (Green Card petition)?
A: No, each is independent
of the other. You may apply for a Green Card with or without an H-1B, and an
H-1B does not in itself lead to a Green Card.
May I submit an employment-based immigration petition before I obtain an H-1B?
A: Yes. An
employment-based immigration petition does not require an H-1B petition. We
have successfully helped many aliens obtain immigration petition approval
before they ever obtained H-1B status. Moreover, the filing of an employment
based immigration petition does not preclude one from filing for an H-1B
petition, as
H-1B is a “” visa.
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 is
permitted to 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.
Does the Green Card petition sponsoring employer have to be the same employer
as the one sponsoring my H-1B?
A: No. An H-1B employee
may end up being sponsored for a Green Card by his/her H-1B employer, but it is
not required. Green Cards are for prospective employment and an alien need not
work for the petitioning employer until the Green Card application is approved.
Should my H-1B title and salary match my Labor Certification application?
A: Not necessarily, since
both petitions are filed independently. Your H-1B petition may be based on a
salary at a bachelor’s degree level while your labor certification may be based
on a master's degree education level. Working in an H-1B position which pays
lower than the PERM Labor Certification’s prevailing wage will not have an
effect on the application as long as the petitioning employer is willing and
able to pay the Labor Certification prevailing wage.
I am currently in B-1 status. May I obtain H-1B status?
A: Yes, if you satisfy the
requirements for an H-1B visa. We have helped many B-1 visitors obtain H-1B
I am in F-1 status but am not using my practical training period. May I obtain
H-1B status?
A: Yes, if you satisfy the
requirements for an H-1B. A practical training period is not a prerequisite to
obtaining H-1B status.
How do I know if my salary offer meets the prevailing wage requirement?
A: We recommend that you
consult with an experienced immigration attorney who will be able to match your
salary offer against USCIS’s accepted benchmarks. Z&A obtains prevailing
wage information from two sources: a database maintained by the American
Immigration Lawyers Association and the National Prevailing Wage Center (NPWC).
How much experience does your firm have in handling H-1B cases?
A: Z&A has extensive
experience with H-1B cases. The Firm has handled thousands of H-1B petitions
since the firm was established more than 10 years ago and has a 99% H-1B
approval rate.
I am currently living in Ohio.
But your offices are only located in Houston, Chicago, Austin, Seattle, Los Angeles, Palo Alto and New
York. Can you handle my H-1B case?
A: Yes. Since immigration
is a matter of federal law, Z&A attorneys can handle US immigration cases
anywhere within and outside the US
by using the latest to provide professional
services to our clients. Please click to see the
of our clients' locations in the United States.
I am in J-1 (exchange visitor) status. May I obtain H-1B status?
A: Yes, you may obtain an
H-1B if you qualify for all of the requirements for an H-1B, provided that you
are not subject to the two-year home-country physical presence requirement.
I am currently in J-1 (exchange visitor) status and subject to the two-year home-country physical
presence requirement. I do not have a waiver but would like to obtain an
H-1B. What should I do?
A: We recommend that you
consult with an experienced immigration attorney who may be able to offer some
solutions based on your specific situation.
Is the size of my company a factor in my H-1B petition?
A: No, the size of the
company sponsoring your H-1B is not a factor to determine if the company can
file an H-1B petition for you. However, two important factors that should be
considered are whether your employer has a real business need for the position
you will fill and whether the employer is financially able to pay your salary
when you start working.
have received a job offer from Company ABC, which has only three&employees.
Company ABC is eligible to sponsor you for an H-1B so long as ABC has offered
you a bona fide job and will have the financial resources to pay you the job's
prevailing wage when you start to work.
How do you define 'financial resources'? Is the company required to meet
certain profit levels in order to be eligible to sponsor an H-1B petition?
A: No, the company does
not need to be profitable in order to sponsor H-1B petitions so long as they
have the cash flow or equity reserve to pay the H-1B employee(s).
is a dotcom that has not yet reached profitability. However, it has received
$3M in investment funding and has a real business need to hire for specific
open positions. Although XYZ is not yet profitable, it is able to pay its
employees using the $3M cash reserves and therefore is eligible to sponsor H-1B
petitions.
is an IT consulting company, it is not making profit right now. However, it has
signed a contract with a client to work on an IT project starting October 1,
2007. The client will pay engineers from ABC $120/hour for the prospective job.
ABC will be able to pay his new employees working on this project starting from
October 1, 2007. Therefore, ABC is eligible to sponsor H-1B petitions.
How much does it cost to apply for an H-1B petition?
A: An H-1B petition
consists of two types of fees: filing fees and attorney’s fees. The filing fees
are as follows: 1. $325 for 2. $500 for the fraud
preventi 3. $750 for an additional fee if the petitioner
employs a total of no more than 25 full-time equivalent employees in the U.S. ($1,500
for an additional fee if the petitioner employs more than 25 employees); 4.
$1,225 Premium Processing fee (if so desired). Z&A charges $1,800 in
attorney's fees for an approved H-1B
application. The initial Z&A fee is $900, and an additional $900 is due
immediately upon approval. For more information regarding fee exemptions,
please refer to our
Is the attorney fee for an original H-1B application and an H-1B transfer the
A: Yes. Z&A typically
charges an identical attorney fee for either an original or transfer H-1B
application since the amount of work required by the attorney is the same.
If my employer petitions for an H-1B on my behalf, what should my spouse and
children do?
A: Your spouse and
children need to apply for H-4 status at the same time that you apply for H-1B
status if they are in the U.S.
and you would like to claim them as your dependents for non-immigrant status.
May I change from an H-1 status to an F-1 (student) status?
A: Yes, you may file a
request for change of status with the USCIS after obtaining a completed Form
I-20 from a USCIS approved school. P however, if you have filed an
immigration petition before, your F-1 application may be denied by the USCIS.
My spouse is currently in H-1B status. May I change my status from H-1B to H-4?
A: Yes. Y however, that an H-4 status holder is not permitted to work in the US.
What does the 'six-year H-1B status cap' refer to?
A: Generally, when an
alien holding H-1B status has stayed in the U.S. cumulatively for six years,
that alien is prohibited from further extending his/her H-1 status. Instead,
the alien is required to change to a non-H-1 status or leave the United States.
An alien must stay outside the U.S. for one
year before reentering as an H-1B status holder. However, in some situations,
an H-1B holder can extend H-1B status after the end of 6 years (such as during
What is the difference between an H-1B status and an H-1B visa?
A: H-1B status is a
non-immigrant status issued by the USCIS. An H-1B visa is a non-immigrant visa
issued by a U.S.
embassy or consulate abroad. Legal status allows you to stay legally within the
U.S., while a visa allows
you to travel to the U.S.
legally and seek admittance. Once you enter the U.S. using an H-1B visa, you become
an H-1B status holder.
I am currently living in the US
in H-1B status and want to travel abroad. Can I obtain an H-1B visa to come
back to the US
while my green card application is still pending?
A: Yes. By law, an H-1B
visa allows dual intent. Therefore, you can obtain an H-1B visa for reentry
even if your PERM,
I-140, or I-485 is still pending. In other words, your PERM
petition, I-140 petition or I-485 application should not be an issue when you
apply for an H-1B visa at a US
embassy or consulate abroad. As a caveat, however, there are always risks
involved when traveling back to your home country for visits. Alternatively, if
you are already in the I-485 pending stage, you may use Advance Parole for
travel.& That is why it is always good to consult an experienced
attorney to have more safeguards.
What is LCA? What’s the difference between LCA and LC (PERM)?
A: LCA stands for Labor
Condition Application, which is part of the H-1B non-immigrant visa application
process.& LCA is filed with the US Department of Labor and it contains a
series of attestations including, among others, an agreement to pay H-1B
employees at least the &prevailing wage& for the offered
position.& In most cases, an LCA may be filed online and approval will be
received within minutes.
PERM stands for “Program
Electronic Review Management process”, and it is a step in the process for
applying for US permanent residency (Green Card).&In brief, the PERM process requires the
petitioning employer to conduct a series of recruitment activities to test the
job market before filing the LC application. If no qualified and willing
applicant (US
citizen or Permanent Resident) is found through the recruitment process, the
employer can submit the PERM Labor Certification. &In most situations, the
recruitment and application processes take around 5-6 months.
it should be noted that the regulatory standards for applying for LCA are much
lower than that of the PERM Labor Certification. Please refer to our
respectively for more detailed information.
Can an H-1B employee go back to college or graduate school for further study?
Do they need to change their status from H-1B to F-1? Under what circumstances
is it unnecessary to change status?
A: An H-1B holder is
allowed to go to school part time or full time without an F-1 as long as he/she
currently holds a valid H-1B status.& This means that while the H-1B
employee is attending school, he/she must continue to work for his/her
H-1B employee will not be able to receive a teaching assistantship or
compensation from his/her school, as that would require a change of status from
H-1B to F-1. If the H-1B employee does not continue to work for his employer,
he/she will lose H-1B status and must apply for a different status, like F-1.
When an F-1 graduate is still in the OPT period, should he apply for H-1B? When
should he apply for H-1B? What are the advantages and disadvantages of changing
from F-1 to H-1B while the graduate still has months of OPT left?
A: If one is in OPT
(optional practical training) and has received a job offer, then he/she can
apply for H1-B, as long as all the requirements for H-1B are met.
advantage of switching from F-1 to H-1B status may be that it will be easier
for the alien to re-enter the US if he/she goes abroad with H-1B status because
H-1B visas allows for dual intent.
advantage of trying to switch from F-1 to H-1B status while still having a few
months of OPT remaining is simply the certainty of maintaining legal status.
Given that the H-1B cap for FY 2013 ran out over 3 months before the start of
that fiscal year (6/11/12), a timely switch from OPT to H-1B can give you peace
is from Thailand
and graduated in December 2011 when her OPT started. Without switching to&H-1B,
she can continue to work for a US
employer until December, 2012. However, one may apply for an H-1B for fiscal
year 2013 on April 1, 2012. As the quota will be reached quickly after April 1,
it is in Karen’s best interest to start applying for H-1B early to avoid
missing the quota.
course, keeping OPT while working for a US employer can bring you
incredible flexibility. First,&you can have multiple employers as long as
the employments are related to your study area. By contrast, after switching to
H-1B, the alien must work only for the H-1B sponsoring employer. Second, you
may have more time to look for another job if you go through a sudden lay-off
or shut-down when your OPT still has months left. By contrast, an H-1B employee
will lose status immediately on the date of termination of employment, although
USCIS often disregards a brief out-of-status period.
is an F-1 student in optional practical training (OPT). His OPT expires June
15, 2012, and he does not wish to apply for H-1B status currently, since it is
only January 1, 2012.& However, when his OPT expires on June 15, 2012 and
he then applies for H-1B status, he will be informed that the quota already
been filled for the coming fiscal year 2013 and he will have to wait until April
2013 to petition for H-1B.
is an F-1 student in optional practical training (OPT). His OPT expires June
15, 2012. It is only January 1, 2012 and John is contemplating applying for
H-1B status.& He knows that the quota is usually filled by May or June, so
he decides to apply for H-1B status as early as possible.& His petition is
approved and now he has H-1B status, instead of F-1 status. He is safe and
I am currently in OPT (optional practical training) and received a part time
job offer from a prospective employer. May I apply for a part-time H-1B visa?
A:Yes, provided you
satisfy the other H-1B requirements.
I am currently in OPT (optional practical training). What is the minimum number
of hours that I am required to work in order to qualify for a part-time H-1B
A: Generally, a successful
part time H-1B can be based on a job requiring a minimum of 20-hours per week.
If the part time job offer is for less than 20 hours/per week, you may still
qualify for a part-time H-1B visa in some instances. We recommend you consult
with an experienced immigration attorney.
Can an H-1B beneficiary own a company? Can a foreign national own a company and
file an H-1B petition for her own benefit?
A: Yes, an alien can own a
company in the U.S.
You do not need to be a US
citizen or legal permanent resident to own a business in the US. However,
whether an alien may work for her own company is another matter. You need
authorization from the USCIS to work for any company including your own.
own company may, in some limited situations, apply for H-1B status for you. The
USCIS will want to see evidence that the new company will be able to pay the
H-1B worker at least the prevailing wage, as well as business plans, a business
lease, and other documents proving that it is in fact a real company. The
employer must have hiring/paying/supervising/firing power independent of the
alien-owner.
is noted that two key factors the USCIS will scrutinize are: 1) the ability to
pay and 2) the real business need. Owning a company does not automatically mean
you can work for it. In order to work at your own company as an employee, you
still need valid work authorization to work in the US.
is an MBA graduate, majoring in real estate development. He wants to start his
own real estate development company in New
York City and petition for himself as the H-1B
beneficiary for the Project Manager position. He meets all the requirements to
form a corporation in the State of New
York, but in his savings account he only has $20,000.
Since a real estate development project in New York City entails significant capital
investment, obviously there is neither a real business need for having this
position nor the ability to pay the prevailing wage required by the position.
Rodney cannot petition for an H-1B for himself.
is a geoscientist experienced in oil & gas exploration. Before he started
his own consulting company, he worked as a geology consultant for his employer
(a consulting firm) under H-1B status for several corporate clients. His normal
rate was $100/hr. He set up his own consulting company and many corporate
clients retained his services. Now he wants his own consulting company to
petition on his behalf for a senior consultant position. For such a consulting
company, there is a real need to have this position. Also, the known prevailing
wage for this position is in the area is $100,000/year. However, considering
John’s prior hourly rate as a contractor and the consulting contracts that his
company has with its corporate clients, he should have no problem proving his
company’s ability to pay.
Can a person holding F-1 status start his or her company, and have the company
hire him or her as an H-1B employee?
A: Yes, an F-1 student can
own his/her own company. Theoretically speaking, the bona fide company may
sponsor the F-1 student as an H-1B employee.
USCIS will want to see that the new company will be able to pay the H-1B holder
at least the prevailing wage, and whether there is a real business need to hire
this specific H-1B employee. Usually for an average F-1 student, these two
factors are extremely difficult hurdles to overcome.
is a Ph.D. student in nuclear science under F-1 status. He heard from his
friend John, a geoscientist, that he could own his own company and have it
sponsor him as an H-1B employee. He has followed the steps for the formation of
a corporation and submitted an H-1B application to the USCIS, showing them that
he is indeed starting a real business, one which would design a nuclear
reactor. Even if he proves that his new company has the ability to pay the
necessary salary for this position, it is extremely difficult to prove that
there is a real business need because small companies like Rodney’s are simply
unable to get business in the nuclear industry.
I am currently in H-1B status but was recently fired. May I change my status to
B-2 (tourist) to remain legally in the U.S ?
A: USCIS officers have
been allowed to exercise their discretion to grant an alien another
non-immigrant status if he/she applies for one within 10 days after being
fired. However, since the end of April 2002, the USCIS has begun to institute a
zero tolerance policy. This means that if people are out of status,
adjudicators will not be likely to exercise discretion, consider the status
violation de minimis and approve the benefit being sought. In addition, you
must prove you possess bona fide non-immigrant intent when you seek to change
your status to B-2. We recommend you consult with an experienced immigration
attorney regarding this complicated matter.
I am currently in H-1B status but was recently fired. May I change back to H-1B
status once I get a job offer?
A: Yes, provided you are
in valid status. Your pending change of status qualifies as being in valid
status. If you have been laid off only for a short period of time, and even if
you have not filed for a change to another status, you may still try to file a
new H-1B transfer application. &USCIS may use its discretionary power to
grant you a new H-1B.
Lin filed his change of status from H-1B to H-4 a week before he was fired.
When his change of status case is still pending, a new H-1B petition can be
filed on his behalf.
I have an H-1B from my employer who has laid me off. Now I am in the process of
changing to an F-1 (student) status. My H-1B I-94 has not expired yet. May I
work for my former employer if I am offered the same position again before the
expiration of my H-1B I-94?
A: If you have been laid
off, your H-1B is no longer valid even though you have a valid H-1B I-94. If
your former employer offers you the same position as before, you need to apply
for an H-1B again.
I have an H-1B from my previous employer, who did not cancel the H-1B after I
quit my job and started to work for another employer under a new H-1B filed by
the new employer. Can I go back to work for my previous employer without filing
an H-1B again?
How does USCIS calculate an alien's H-1B length of status?
A: The total amount of
time or length of status under an H-1B is the cumulative time that you have
worked for all your employers under an H-1B status. The time you stay out of
can be deducted from your H-1B maximum length limitation. This is referred to
as “recapturing time abroad.”
I am currently in F-2 status. May I apply for an H-1B? Should I change into F-1
(student) status first and then apply for an H-1B?
A: As an F-2 status holder
you may apply for an H-1B if you satisfy all the requirements for H-1B. You do
not need to change into&F-1 status.
Where is an H-1B petition filed?
A: All cap-exempt H-1B
petitions (USCIS Form I-129) should be sent to the California Service
Center. Other H-1B petitions
should be filed at either the California
Service Center
or the Vermont Service Center
depending on the geographic area of employment. Please visit the USCIS website
or contact an immigration attorney to determine the appropriate filing
How do I file a Request for Premium Processing?
A: You should complete and
sign the Form I-907, Request for Premium Processing Service, and submit this to
the service center with a separate check for $1,225. The I-907 should be sent
to the appropriate service center mentioned above where your I-129 (Petition
for Non-immigrant worker) is either currently pending or being filed. Be sure
to send the forms to the address specifically designated as the Service Center's Express Mail Address.
How do I contact the service center concerning the Premium Processing request
that I filed?
A: The Vermont
and California
service centers have different mailing addresses for Premium Processing than it
does for regular cases, as indicated in the instructions for Form I-907
(Request for Premium Processing). Additional contact information for the Vermont Service Center
will be provided to you on your receipt notice. The California
and Vermont
service centers’ Premium Processing e-mail address can be found on the current
I-129 instructions. As of September 2012 these e-mail addresses are
respectively.
I was laid off by my employer, but the expiration date of my H-1B status (as
stated on my I-94 card) is next year. Am I still in valid H-1B status?
A: No. Your H-1B status is
tied with your employment. Thus, after your employment was terminated, you were
no longer in valid H-1B status, even though your I-94 may still be valid until a
later date.
I received a termination letter from my employer notifying me that I will be
laid off at the end of this month, but that he will give me one month extra pay
until the end of next month. When will I be considered no longer in valid H-1B
A: You are considered no
longer in valid H-1B status when your employment terminates, which in this
case, is the end of this month. The fact that your employer will give you one
month extra pay until the end of next month doesn't change the time of
termination of your employment.
I heard that after being laid off, an H-1B holder has 10 days to change to another
status, is that true?
A: Strictly speaking, no.
The USCIS has made it clear that there is no such 10-day grace period. In
addition, the USCIS has enforced a so-called &zero tolerance& rule
after the 9-11 terrorist attacks in 2001, which declares that H-1B status
holders are officially out of valid status at the time of termination of their
employment.
I am an H-1B holder. What if I still stay in the U.S. after being laid off by my
employer? Are there any negative consequences?
A: If you remain in the
U.S. after being laid off, any future applications for change of status to another
non-immigrant status or future applications for adjustment of status may be
denied for that reason. The longer you stay, the slimmer the chance will be in
the future that you successfully change to any other status or adjust your
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/maintaining your H-1B because if you do not and your I-485
adjustment is denied you will be immediately out of status.
How do I keep my H-1B status if my I-485 is pending and I want to travel
A: There are two ways to
keep your H-1B status after traveling abroad: First, you can obtain an H-1B
visa from a U.S. consulate
in a third country or from a U.S.
consulate in your home country and come back to the US on the H-1B visa to work for your
H-1 sponsoring employer. Secondly, if you travel back to the US with Advance
Parole, you may continue working for your H-1B employer and you can request an
H-1B extension or change of employer later.
Do I have to apply for Advance Parole to travel abroad if I am in H-1B status
and I have filed for an I-485?
A: No. You can come back
to the U.S.
with an H-1B visa while your I-485 is still pending. But we suggest you apply
for Advance Parole before you leave the U.S. If for some reason you cannot
obtain an H-1B visa overseas, you can come back with the Advance Parole.
addition, when you use an H-1B visa to come back, you must continue working for
the H-1B sponsoring employer to keep your I-485 case pending.
What is my status when I come back to the U.S. with an Advance Parole?
A: You are in parolee
status. But you can still work for the former H-1B sponsoring employer without
an EAD card. After you file an H-1B extension or change of employer, your
parolee status will be stopped and you will be back to H-1B status again.
What is my status when I come back to the U.S. with an H-1B visa?
A: You are in H-1B status
and your I-485 Adjustment of Status case is still pending.
If I have an I-485 case pending and I go abroad without an Advance Parole, but
come back to the U.S.
with an H-1B visa and keep working for my former H-1B sponsoring employer, can
I change employers later and file an H-1B transfer?
I have an I-485 case pending.& I am currently using an H-1B to work for my
primary employer, but am also using an EAD card working for another employer
part time. Am I still in H-1B status?
A: You are no longer in
H-1B status. But you can use an EAD card to work for both employers. Once you
use the EAD card, your only status is based on your pending I-485 adjustment of
status case.
My I-485 is pending and I am in H-1B status. Can I still maintain my H-1B
is applying for both an EAD (employment authorization document) and Advance
Parole. She may still maintain her H-1B status. Applying for an EAD or an
Advance Parole does not affect your H-1B status. For details, please click . Obtaining an EAD does
not affect your status, but using it does.
is using an EAD (employment authorization document) to work for one employer
and his H-1B to work for his H-1B sponsoring employer. Ben is NOT in valid H-1B
status since he has filed a claim for the I-485 and used its accompanying
benefits (EAD).
would like to use her advance parole to come back into the U.S. after a
short trip abroad and continue working for her H-1B sponsoring employer. Even
if Julia uses her Advance Parole to come back into the U.S. without a
valid H-1B visa, she can continue to work for the H-1B sponsoring employer.
Technically, she is in I-485 pending status.& After an H-1B extension is
filed, she will be back in H-1B status.
spouse is currently in H-4 status and has also applied for an I-485 as a derivative
beneficiary of John's immigration petition. John's spouse uses Advance Parole
to re-enter the U.S.
after a short trip abroad. Since John still has a valid H-1B status, John's
spouse will keep her H-4 status.
For more information on H-1B Visa, please refer on one of the following topics below:
H-1B Visa General Issues
H-1B Visa Related Articles}