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Posted
May 01, 2006 | updated Jan 22, 2008
The following
questions and answers are based on those frequently posed to the attorneys
at the Murthy Law Firm. As a courtesy to our clients and
the immigrant community, we generously share this useful information.
Question 1.
What
is the H1B cap and how does it work?
Top
©MurthyDotCom
The H1B cap is an
annual limitation on the number of new visas available for H1B workers. The
cap is currently set (by Congress) at 65,000. However, only 58,500 generally
are available, as some numbers are set aside specifically for programs for
nationals of Chile and Singapore. This does not include the 20,000
additional visa numbers available to persons who have earned masters’ or
higher degrees from U.S. institutions of higher education.
Question 2.
When
should H1B cases for cap-subject cases be filed and how does the timing
work?
Top
©MurthyDotCom
The cap numbers
become available at the beginning of each fiscal year. The government's
fiscal year currently starts on October 1st. However, cases can be filed six
months in advance of the requested start date. Therefore, cases can be filed
on the preceding April 1st.
©MurthyDotCom
Because there are so few cap numbers relative to increasing demand, one
would be well advised contact an experienced attorney to start the process
as early as December or January for the following fiscal year, so that the
case can be filed to reach the USCIS on April 1st.
Question 3.
I
understand that certain employment may be cap exempt. What kinds of
employment arrangements qualify?
Top
©MurthyDotCom
Some employment
is exempt from the need for a cap number and is referred to as cap exempt.
Included is employment "by" or "at" universities and their nonprofit
affiliates, as well as nonprofit and governmental research organizations.
Additional information may be found at on MurthyDotCom by
searching cap exempt.
©MurthyDotCom
One should
discuss the possibility of being cap exempt with a qualified and experienced
immigration attorney, as such a determination may be fact-specific.
Question 4.
How do
I know if I qualify for H1B employment?
Top
©MurthyDotCom
Generally, one
may qualify for H1B employment if the offered position requires a bachelor’s
degree or its equivalent. The education must be in a field of specialized
knowledge. One must have the required education or its equivalent at the
time the case is filed.
Question 5.
Can I begin
working for my new employer once I have filed the H1B petition?
Top
©MurthyDotCom
It depends. If
one is currently in H1B status with another company, then s/he may be
legally allowed to start working for the new employer upon filing the H1B
petition. Otherwise, one generally must await an approval of the H1B
petition and a change of status. It is important to verify one's eligibility
to commence employment with the new employer to avoid unauthorized
unemployment, which may lead to problems later, when attempting to adjust
status to lawful permanent resident (LPR).
©MurthyDotCom
If the H1B petition is approved as a change of employer (with I-94 card
updated at the bottom of the approval notice), one may continue to work for
the employer until the expiration date on the I-94 card / H1B approval
notice. If the H1B petition is approved without an I-94 card, one may have
to immediately stop working, depart the United States, apply for an H1B visa
at a U.S. consulate in the home country, and finally be readmitted in H1B
status before being authorized to continue working for the employer.
©MurthyDotCom
Prior to the law signed on October 17, 2000, referred to as the American
Competitiveness in the Twenty-First Century Act (AC21), Legacy INS
consistently took the position that a person could not start working for the
new employer until approval of the H1B petition. Status issues can be
complicated and, if there is any question as to whether or not one is
authorized to engage in H1B employment, s/he should consult with an
experienced immigration attorney.
Question 6.
Why
does an H1B transfer take so long? Isn't there an easier process?
Top
©MurthyDotCom
The process for
filing an H1B "transfer" petition is the same as the process for filing a
new H1B petition, since each H1B petition is employer specific. Therefore,
it generally takes the same amount of time to process the H1B petition.
©MurthyDotCom
The main difference between an H1B "transfer” and a new H1B petition is that
one who already holds an H1B status is generally not subject to the H1B cap
and does not need to wait until October 1st to start working, if the H1B
quota has been used up for that fiscal year.
Question 7.
My
friend filed his H1B petition at the same time as I, but his petition was
approved already. Why wasn't mine approved yet?
Top
©MurthyDotCom
Each USCIS
service center and each USCIS officer has a different caseload and each one
takes a different amount of time to process cases. Unfortunately, there is
nothing a law firm can do to ensure that a case will be processed in the
same amount of time as other cases.
Question 8.
I am
here in H1B status and my H1B visa has expired. What should I do?
Top
©MurthyDotCom
If it is, in
fact, just the visa in one's passport that has expired and not the H1B
status, itself, then there is no need for concern. One may find it helpful
to review our article on the difference between visa and status,
Immigration Law Basics:
About Visas and Status.
©MurthyDotCom
The visa is a travel document only. If the visa in one's passport expires,
one would need to apply for another visa at a U.S. consulate abroad the next
time s/he travels outside the United States.
©MurthyDotCom
Generally, one's legal status in the U.S. depends upon the expiration date
on the I-94 card, written by the immigration officer at the port of entry.
As long as the latest I-94 card (either a small white card typically stapled
in the passport or an updated one located at the bottom of the latest
approval notice) is currently valid, and one is continuing to work for the
sponsoring employer under the terms of the petition, then s/he is legally
permitted to be in the U.S., whether or not the visa in the passport has
expired. If it is, in fact, the status (as indicated on the I-94) that has
expired, one should contact an attorney immediately to discuss available
options.
Question 9.
If I
have an H1B approval, can I work for my employer in any state in the U.S.?
Top
©MurthyDotCom
The USCIS has
taken the position that a person is only authorized to work in those cities
/ metropolitan areas listed on the Labor Condition Application (LCA)
certified with the U.S. Department of Labor (DOL), and filed with the H1B
petition. Generally, there must be a certified LCA for each location at
which one will work, attesting that the employer will comply with the
prevailing wage requirement for that local area.
©MurthyDotCom
There is a discrepancy between the DOL regulations and USCIS regulations
with regard to an H1B employee's change in work sites. One requires an
amendment to the H1B that includes certification of the new location and the
other provides that certifying the LCA prior to the move is sufficient (i.e.
an amended petition is not necessary). As this discrepancy creates a gray
area of law, it is best to consult with an experienced immigration attorney
prior to working at a location not previously certified.
Question 10.
I was
in H1B status and changed to F-1 status. I am now ready to work in H1B
status again. Do I get six more years in H1B status?
Top
©MurthyDotCom
No. The six-year
clock in H1B status is not reset unless one leaves the United States for at
least one year. As a result, the time previously spent in H1B status will be
counted against the six-year H1B limit.
©MurthyDotCom
Individuals who previously held H1B status in the last six years, and
subsequently left the U.S. for at least a year, generally have the option of
either using the time remaining in H1B status without being subject to the
cap or applying for another six years of H1B employment subject to the cap.
Question 11.
I'm in
F-1 status and have a practical training work permit. If my work permit
expires, do I have to stop working until the H1B approval comes through?
Top
©MurthyDotCom
Yes. One must
stop working upon the expiration of the EAD or the OPT. If an H1B petition
requesting a change of status is filed prior to the expiration of the F-1
status (date of completing school or of finishing practical training, plus a
60-day grace period), one may legally remain in the U.S. However, one cannot
work for the H1B-sponsoring employer during the period between the
expiration of the practical training authorization and the start date on the
H1B approval notice.
©MurthyDotCom
F-1 students should be aware of what is often referred to as the “cap gap.”
The cap gap is the time between the expiration of OPT (and the 60-day grace
period) filing of a petition (i.e. April 1st) and the actual start date
(i.e. October 1st, at the earliest). If one is unable to maintain status
during this time, by enrolling in another program or changing to another
nonimmigrant category, such as H-4) then the petition should be prepared for
consular processing and one should depart the U.S. prior to the expiration
of one's status. Upon approval, the U.S. consulate abroad will be notified
where one may apply for an H1B visa for entry into the U.S. in H1B status.
If both one's petition and change-of-status request are approved (from F-1
to H1B), then the approval notice should have an I-94 card attached at the
bottom.
Question 12.
My
spouse is in H-4 status and was offered a job. Can s/he begin working?
Top
©MurthyDotCom
No. H-4 is a
non-working status. In order to be legally authorized to work in the U.S.,
one who is in H-4 status must have an employer file an H1B petition or
petition for another working status (other working category). The petition
must request a change of status specifically. Of course, one's spouse must
meet all of the H1B requirements. Once the petition is approved, with the
change of status, the spouse’s work authorization begins on the date on the
approved petition.
©MurthyDotCom
Please note, under AC21, there may be circumstances in which a person in H-4
status, who was previously on H1B, may be allowed to work upon filing the
H1B petition.
Question 13.
I held
H1B status and my spouse was in H-4 status, but no one told us we had to
apply separately to extend her H-4 status. She has been out of status for
over eight months. What can I do?
Top
©MurthyDotCom
In this situation,
one should
contact an experienced U.S. immigration attorney immediately. This is a very
difficult situation and the assistance of a knowledgeable professional will
be required to develop a plan of action and help one to understand the risks
and issues involved with each option.
©MurthyDotCom
There is a strong likelihood that the 3-year or 10-year bar could apply
against the spouse in this case for failure to maintain lawful status beyond
180 days. According to the USCIS, ignorance of the law is never a valid
excuse.
©MurthyDotCom
At the time of filing the H1B extension, many people assume that all
dependents are automatically included. This is not the case.
Question 14.
My husband and
I each hold H1B status. I would like to change my status to H-4. Can I do
this?
Top
©MurthyDotCom
Yes. To do
this one needs to file an application with the USCIS to change status from
H1B to H-4. In doing so, one must establish that both the primary H1B and
the spouse are maintaining current legal status in order for the USCIS to
approve the change of status. It is safest for one to continue working until
the application is approved, although upon filing the H-4 application for
change of status, one generally is allowed to stop working. Another path to
H-4 status is to obtain an H-4 visa at a U.S. consulate abroad and use it to
reenter the U.S. If one is unsure as to which method to use, we suggest a
case-specific consultation with an experienced, reputable U.S. immigration
attorney.
Question 15.
I
currently hold H1B status. Can I start my own company?
Top
©MurthyDotCom
Generally, the
answer is yes. However, for immigration purposes the employer / employee
relationship must be present and this often may be difficult to establish in
a closely-held, corporate entity. Other legal issues, as well as many
practical business matters, may create obstacles, as well.
Question 16.
I
currently hold H1B status and I am changing employers. I want to travel to
my home country. Is it legal for me to leave?
Top
©MurthyDotCom
Generally yes,
this may be possible. The timing of such a trip can complicate the
situation. Although there have been several changes in the Legacy INS's
interpretations affecting those who travel abroad while a petition is
pending, the safest option is to avoid international travel unless the
timing is first discussed with an experienced U.S. immigration attorney.
Question 17.
I hold H1B
status and would like to file another H1B petition with another employer,
but I want to wait before I start work. Can I do this?
Top
©MurthyDotCom
Yes. There is no obligation to begin work immediately. One must maintain
lawful status by working for one of the companies that has an approval for
that individual. There is nothing to prevent one from waiting to begin work,
especially if there is a project to finish. As long as the prior employer
has not revoked the H1B petition with the USCIS, or the petition has not
expired, it still is legal to be working for the prior company.
Question 18.
I filed my H1B
petition through another attorney over two months ago. Is there anything you
can do to expedite the case?
Top
©MurthyDotCom
Yes. The case may be upgraded to Premium Processing by filing the
appropriate forms and including the required fee. The USCIS will process the
petition within 15 days if one is willing to pay a premium processing fee of
$1,000. If one is not willing to pay the premium processing fee, then
expedites are difficult to obtain in most cases. The USCIS generally will
expedite cases for the following reasons (and they do not view requests for
expedites favorably):
©MurthyDotCom
(i) emergent reasons
©MurthyDotCom
(ii) severe financial loss to the company, which must be evidenced in
specific terms, i.e., not a broad and general statement of possible loss of
revenue or income
©MurthyDotCom
(iii) USCIS's own error
©MurthyDotCom
(iv) humanitarian reasons
Question 19.
I currently
hold H1B status. Am I subject to the H1B cap?
Top
©MurthyDotCom
This depends. Typically, if one is in H1B status and has already been
counted against the H1B cap, s/he is not subject to the H1B cap. Individuals
who have only held H1B status with cap-exempt employers, like universities
or nonprofits associated with institutions of higher education, are not
deemed to have already been counted against the H1B quota. An individual who
has not been counted against the cap should consult with an experienced
immigration attorney regarding possible strategies.
Question 20.
If I have a
valid H1B visa in my passport and I leave the United States, can I come back
and work for a different employer without having to go through the USCIS?
Top
©MurthyDotCom
No. One must have the new company's H1B petition approved through the USCIS,
since each H1B petition is employer specific. This applies to any company
for which one might work, whether or not s/he already holds H1B status.
However, if the visa has not expired in the passport, but now one has a new
H1B petition approved to work for another employer, it is possible, in most
cases, to use the old H1B visa and show the H1B approval notice with the new
employer to obtain a new I-94 card at the port of entry. The new I-94 card
should have an expiration date that matches the expiration date on the new
H1B approval notice. If the USCIS officer makes a mistake and only issues an
I-94 card valid until the expiration date of the visa, one should request at
that time that the officer indicate the correct date. If the officer refuses
to correct his/her mistake, then one should ask respectfully to speak with a
supervisor.
Question 21.
I am the
president of a small IT consulting firm. I have heard that the USCIS is
closely scrutinizing petitions filed by companies such as mine. What steps
should we take to maximize our chances of receiving approved H1B petitions
for IT consultants?
Top
©MurthyDotCom
IT consulting firms should provide strong evidence to show that they have
specific, H1B-level work for their consultants at the time of filing. If a
consultant will be working on a project at the firm, the USCIS expects to be
provided with detailed information on the project, including its technical
specifications, the end-product, and a business plan / market analysis
(target market, expected revenue stream, anticipated length of the project,
etc). 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 through other means.
©MurthyDotCom
If a consultant will be placed at various work sites of end clients, these
locations should be stated in the H1B petition and in the certified labor
condition applications (LCAs) that accompany the petition. One must have
evidence of specific projects contemplated for the beneficiary at the time
of filing (contracts, purchase orders, etc) with the end client. One cannot
generally change locations and file new LCAs in response to a Request for
Evidence (RFE).
Question 22.
My employer
would like me to pay all the USCIS fees for filing an H1B petition on my
behalf. Is this allowed? Top
©MurthyDotCom
No. The employer must pay the training fee ($750 / $1500) for the petition,
if applicable, and one should not enter into a reimbursement agreement with
the employer. Either the employee or the employer may pay the other filing
fees: $320 base filing fee, the fraud prevention fee $500, if applicable,
and the $1000 optional premium processing fee.
Question 23.
I am graduating from a master's program in the U.S. this coming May. Can I
apply for the masters' cap when filing my H1B petition? Top
©MurthyDotCom
This depends. If one would have completed all the requirements for the
degree at the time of filing (April 1st), then s/he may apply for the
masters' cap. It is not necessary to have the physical diploma in one's
possession; in such cases. A letter should be submitted from the university
stating that the degree has effectively been awarded and the diploma will be
sent or presented at a later date. One should not apply for the masters' cap
if the degree requirements will not be completely fulfilled by April 1st.
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