H1B Frequently Asked Questions

The H1B nonimmigrant program is one of the most versatile and widely used work visa programs in the United States. Therefore, having a good understanding of the program can be helpful for both workers and their respective employers. Below are some of the most common H1B questions received by the Murthy Law Firm, sent from both foreign nationals and H1B employers.

1. What is an H1B?

H1B is a nonimmigrant visa category that allows a foreign worker to come to the United States and work in a “specialty occupation,” which includes many professional positions. The H1B gives a foreign national permission to work in the U.S. and a status that allows her/him to lawfully remain in the U.S. on a temporary basis. Generally, the maximum period that a worker can be in the U.S. in H1B status is six (6) years, which can be granted in increments of no more than three (3) years at a time. There are exceptions to this rule permitting extensions beyond the six years if an H1B worker’s employer sponsors him/her for lawful permanent resident (commonly referred to as “green card”) status and certain timeframes have elapsed or the I-140 petition has been approved.

2. What is a specialty occupation?

A specialty occupation is a job that requires the “theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor’s degree or higher in a specific specialty as a minimum for entry into the occupation in the United States.” This includes many professional positions.

The position must require a bachelor’s (or higher) degree in the specific field. The fact that a prospective H1B worker possesses a bachelor’s degree does not make that position a specialty occupation. Also, if a position requires a bachelor’s degree in any field, it is most likely not considered a specialty occupation, as the bachelor’s degree must be in the field in which the foreign national works in the U.S. In addition, the H1B beneficiary must have the required education or its equivalent at the time the case is filed.

3. Is there a particular salary that an employer must pay a worker in H1B status?

Yes. An H1B employee must be paid no less than the greater of the prevailing wage or the actual wage for the position.

A prevailing wage is specific to a position within the local area where the job is to be performed. The U.S. Department of Labor (DOL) has published guidelines on its website that explain how to determine the prevailing wage. Also, an employer can ask the DOL to determine the prevailing wage. The “actual wage” is the wage paid to all other employees at the work location with similar experience and qualifications for the position with that particular employer.

4. What is the Labor Condition Application (LCA)?

The LCA filed and certified as part of the H1B program should not to be confused with the labor certification, also known as a PERM application and filed as part of the green card process. An LCA for an H1B petition must be certified by the DOL before filing an H1B petition with the U.S. Citizenship and Immigration Services (USCIS). The DOL is responsible for ensuring that a foreign worker neither displaces nor adversely affects the wages or working conditions of U.S. workers in the same area where the employer intends to locate the H1B employee.

The LCA requires an employer to make a series of attestations (signed under oath with federal criminal sanctions) regarding the correct wage being offered, the work location, working conditions, and termination of U.S. workers in the same position. The LCA may be submitted and certified electronically. A certified LCA must be filed with the H1B petition to USCIS and the failure to include it generally will result in denial of the H1B petition. As of October 1, 2008, an employer must register with the DOL and establish an online account before the employer can submit any LCA online.

5. What is the H1B cap and how does it work?

The H1B cap is an annual limitation on the number of individuals who may be granted H1B status, not including those who are exempt from the cap (which includes those who previously have been counted against the H1B cap). The cap is set by Congress and currently is at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for nationals of Chile and Singapore. This does not include the 20,000 additional H1B numbers available to persons who have earned masters’ or higher degrees from certain U.S. institutions of higher education, commonly referred to as the master’s cap.

6. When should H1B petitions for cap-subject cases be filed and how does the timing work?

The cap numbers become available each year on the first day of the U.S. government’s fiscal year. The government’s fiscal year begins on October 1st and ends the following September 30th. Cases can be filed up to six months in advance of the requested start date. Therefore, the earliest that cap-subject H1B petitions can be filed by employers is the first business day in April, requesting an October 1st start date.

If the H1B cap is reached by the 5th business day in April, the United States Citizenship and Immigration Services (USCIS) conducts a lottery to select the petitions to be accepted for processing. If the H1B cap is not reached by the fifth business day in April, then the USCIS will continue to accept H1B cap cases for that fiscal year until the quota is reached, or until the end of that fiscal year, whichever comes first.

For example, for fiscal year 2019 (FY19), which runs from October 1, 2018 through September 20, 2019, all cap-subject H1B petitions filed from April 2nd through April 6th, 2018, will be included in the lottery, assuming a lottery is needed. In the unlikely event that the cap is not reached by April 6th, meaning that no lottery is needed, the USCIS will continue to accept cap-subject petitions for FY19 until the cap is reached or until the last day of that fiscal year – September 30, 2019, in this example.

7. 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?

This depends. If one has completed all the requirements for the degree by the time of filing, then s/he may apply for the masters’ cap. It is not necessary to have the physical diploma in one’s possession. However, 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 are not completely fulfilled by the date of filing.

8. Are there any exceptions to this cap? Are there people who do not have to compete for a new H1B?

The law has a few built-in exceptions to the H1B cap. First, if a foreign national was counted previously against the H1B cap and has not utilized the full six years (or is eligible to extend beyond the six-year limit), the individual is considered exempt from the H1B cap.

Second, in certain instances, the job itself may not be subject to the numerical limitation on H1Bs that can be issued. Employment by or at an accredited, nonprofit university, or a university’s nonprofit affiliate is exempt from the H1B cap. Similarly, there is a cap exemption for employment at certain nonprofit or governmental research organizations.

Finally, a physician who has been granted a qualifying waiver to the J-1 home residency requirement (e.g., Conrad 30 waiver) is permanently exempt from the H1B cap.

9. Can I file an H1B petition on my own? Do I need to be sponsored by an employer?

Only a U.S. employer may file an H1B petition on behalf of a foreign national. A person cannot self-sponsor for H1B.

In certain situations, it may be possible to file an H1B petition using a U.S. entity owned by the H1B worker. But, the USCIS tends to be very skeptical of these filings. (And, it does not eliminate the need for a U.S. entity to file the H1B petition.)

10. I found a U.S. company that is willing to sponsor me for an H1B position, but I have to hire an attorney to file the case and cover all the costs. Is that ok?

By law, certain fees associated with an H1B petition, including the ACWIA fee and the fraud prevention and detection fee, must be paid for by the employer. It is recommended, however, for the employer to pay the attorney fees and all government filing fees, even those not specifically required by statute. The DOL views nearly all fees paid in connection with the preparation and filing of an H1B petition to be an employer’s business expense. The DOL regulations state that the imposition of an employer’s business expense on an employee represents a reduction in wage payments. If the employee’s wage falls below the required wage (the higher of the “prevailing wage” or the employer’s “actual wage”) as the result of this reduction, then the payment of these fees would constitute a wage violation. The employer may be liable for back wages, civil monetary penalties, and/or disbarred from immigration programs, including filing H1B, H1B1, and/or E-3 petitions, in the event the employee’s wage falls below the required wage due to payment / reimbursement of the employer’s business expenses.

11. I am working for Employer A in H1B status. Employer B filed an H1B change of employer petition for me. Can I start working for Employer B right away?

Ordinarily, if an H1B beneficiary is in valid H1B status, s/he is legally allowed to start working for the new employer upon the filing of an H1B petition requesting a change of employer. 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 new employer until the expiration date on the I-94 card / H1B approval notice. If the H1B petition is approved with no I-94 card attached to the approval notice, one may have to immediately stop working, depart the United States, apply for an H1B visa at a U.S. consular post abroad, and be readmitted to the U.S. in H1B status before being authorized to continue working for the H1B employer. Status issues can be complicated and, if there is any question as to whether one is authorized to engage in H1B employment, s/he should consult with an experienced immigration attorney.

12. My employer filed an H1B extension for me before my I-94 expired. If the case is still pending when my I-94 expires, how long can I continue working?

Ordinarily, if an H1B employer applies for an extension while the foreign national is still in valid status, once the current I-94 expires, the H1B worker can continue to work for up to 240 days, or until the H1B petition is approved or denied, whichever occurs first.

13. I am working for Employer A in H1B status. Employer B filed an H1B extension and change of employer petition for me. If I start working for Employer B based on the pending petition, and then my I-94 expires, how long can I continue working?

The 240-day limit only applies to extensions with the same employer, when 240 days has passed beyond the I-94 expiration date. For a change of employer, assuming it was filed while the current I-94 was still valid, one generally could continue working as long as the petition remains pending.

14. I am here in H1B status and my H1B visa has expired. What should I do?

It is important to first understand the difference between one’s visa foil (commonly referred to as a visa “stamp”) and one’s immigration status. The visa is a travel document only. Immigration status, on the other hand, generally controls how long one may remain lawfully in the United States.

If the visa in one’s passport expires, this does not require departure from the U.S. But, if one does travel outside the U.S., it generally would be necessary to apply for a new H1B visa at a U.S. consular post abroad in order to return in H1B status.

One’s legal status in the U.S. depends on the expiration date on the I-94 card. As long as the latest I-94 card is currently valid, and one continues 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.

15. I’m in F-1 status and have an optional practical training (OPT) work permit. Is it true I can continue to work after my OPT expires based on cap-gap?

Under the cap-gap provisions, if an employer timely files a cap-subject H1B petition for a change of status for an October 1st start date (i.e. filed before the OPT period ends), then a foreign national in F-1 status may continue working between the expiration of the employment authorization (as indicated on the employment authorization card) and October 1st. If the petition with a change of status to H1B is approved by October 1st, the person then would begin to work in the H1B position on October 1st. If the H1B petition is not selected in the lottery, or if the petition is denied, the cap-gap period generally terminates.

If the petition is still pending as of October 1st, assuming the OPT period has expired, one should stop working until the H1B petition is adjudicated. If approved, the foreign national would begin working in the H1B position upon the date of approval; if denied, the individual typically must depart the U.S.

Please see the MurthyDotCom NewsBrief, Cap-Gap Extensions of F-1 Status and OPT for more details on cap-gap provisions.

16. I was in H1B status for a few years and then went back to my home country for a couple of years. If I now return to the U.S. to work in an H1B position, do I get six more years?

No. The six-year clock in H1B status is not reset unless one leaves the United States for at least one year and then has a new cap-subject H1B petition filed on her/his behalf. If one wishes to return without being subject to the H1B lottery again, one is only entitled to reclaim whatever time remains of the original 6 years.

17. Can the H1B status be extended beyond the six-year maximum?

Under certain circumstances, extensions beyond the six-year limitation are possible. Such circumstances are:

• If a PERM labor certification or I-140 was filed on behalf of the employee at least 365 days prior, H1B extensions may be obtained in one-year increments.
• If an I-140 petition was approved on behalf of the employee, H1B extensions may be obtained in three-year increments as long as the priority date is not current.

18. I am out of the U.S. and have an H1B petition valid for two more years. The H1B visa stamp in my passport, however, expires in two months. Can I enter the U.S. now to work for this H1B employer, or do I need to get a new visa stamp first?

The visa foil (i.e. stamp) is an entry document. It generally can be used through the expiration date indicated. A foreign national typically is admitted in H1B status through the expiration date of the H1B petition, even if the visa expires before that date.

Note, however, that if one’s passport will expire before the expiration date of the H1B petition, one’s I-94 typically will be limited to the passport expiration date.  

19. I am transferring to a new employer. The H1B visa stamp in my passport is still valid for about two years. Do I need to get a new visa next time I travel overseas?

Generally speaking, as long as the H1B visa “stamp” is facially valid, it may continue to be used following a change to a different H1B employer. It is important to show the latest H1B approval notice to the CBP at the airport or other port of entry to obtain the I-94 card to match one’s latest approval notice.

20. Is it true that the USCIS is denying H1B petitions filed for positions with Level 1 (entry level) wages?

Since March 2017, the USCIS has carefully – and oftentimes harshly – been reviewing H1B petitions filed for positions offering a Level 1 wage. There are legal and factual arguments that can be made to potentially overcome this issue. But, having a Level 1 wage can increase the risk of an H1B petition denial.

21. Prior to moving to a new worksite location, my employer filed an H1B amendment. Can I travel to India while the amendment is pending?

It is permissible to travel with an H1B amendment pending. If there is a valid H1B visa “stamp” and approved petition for reentry, this typically is sufficient. It may be best to have the amendment receipt notice, in case of any questions. If the amendment is approved while traveling, that could be forwarded to the H1B employee to present at the port of entry.

22. I started working for a new H1B employer based on the filing of the change of employer petition. I now need to travel outside the U.S. Can I return before the change of employer petition is approved?

Ordinarily, as long as the I-94 with the previous H1B employer is still valid, the H1B worker may request readmission by presenting a valid, unexpired passport and H1B visa, evidence of previously having been granted H1B status (e.g., H1B approval notice for previous employer and copy of unexpired I-94 been), and a receipt notice for the change of employer request.

23. 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?

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 employer for which one might work, whether or not the foreign national already holds H1B status.

24. I filed my H1B petition through another attorney over two months ago. Is there anything that can be done to expedite the case?

Yes. The case may be upgraded to premium processing by filing the appropriate forms and including the required fee. The USCIS is supposed to take action on the petition within fifteen (15) calendar days of receiving the premium-processing request.

25. I am in H1B status and was recently laid off. How long can I remain in the U.S.?

Upon the termination of employment, an H1B worker generally has up to 60 days – or until the expiration date of the current I-94, whichever period is shorter – to be sponsored for a change of employer, apply for a change of status, or simply depart the United States. More detail on this is available in the MurthyDotCom NewsBrief, Grace Period for Nonimmigrant Workers Following Loss of Employment.

26. 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 H1B petition approvals for IT consultants?

IT consulting firms should provide strong evidence to show that they have specific, H1B-level work for their employees at the time of filing. If a consultant will be working on an in-house project, the USCIS expects to be provided with detailed information on the project, including its technical specifications, the end-product, and a business plan / 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 by other means.

If a consultant will be placed at the worksite of an end client, this location should be stated in the H1B petition and in the certified labor condition application (LCA) that accompanies the petition. One must also provide strong evidence of the specific project that is immediately available to the employee at the time of filing the petition or the requested start date. Contracts, purchase orders, end client and vendor letters, and other supporting documentation must demonstrate to the USCIS that there is an H1B position available to the employee and that the employee’s services are needed for the entire duration of time requested in the H1B petition.

Conclusion

Although this overview addresses basic H1B issues, it is important to recognize that even seemingly simple H1B matters can quickly lead to more complex problems. The DOL is increasing enforcement efforts aimed at LCA violations. Meanwhile, the USCIS is providing heightened scrutiny to H1B petitions, issuing requests for evidence (RFEs) and denials with far more frequency than in years past. As such, it is best to work with an experienced immigration attorney who can guide you through the H1B process.

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