Archive for the ‘FAQ H-1B’ Category
What happens if my H-1B petition is approved, but my extension of stay is denied?
The petitioner of an H-1B change of employer petition or extension petition may request, as part of the petition, that the beneficiary’s stay be extended in the U.S. If the USCIS finds that the beneficiary has not maintained his/her H-1B employment/status during the prior H-1B validity period, the USCIS may approve the underlying H-1B petition but deny the request for beneficiary’s stay to be extended. In these cases, a denial notice strictly for the extension piece will be issued.
In order to work in H-1B status once the extension piece is denied, the beneficiary must go to a U.S. Consulate abroad and obtain an H-1B visa. Once he/she re-enters the U.S., he/she can resume H-1B employment.
The timing for the beneficiary’s departure from the U.S. to visit the Consulate is dependent upon the denial notice for the extension. Once it is issued, the beneficiary must depart the U.S. immediately. If the beneficiary remains in the U.S., he/she will start accruing what’s known as “unlawful presence” each day he/she stays beyond the denial date. This could complicate the beneficiary’s chances of obtaining the H-1B visa abroad and being allowed to continue working in the U.S.
Please contact our immigration law firm if you are facing this issue or would like to discuss the requirements for extending your stay in the U.S.
Tags: extension of stay, H-1B change of employer, h-1b extension, H-1B transfer, H-1B visa
Posted in FAQ H-1B | Read More »
May I qualify for H-1B status without a degree?
Yes, provided you have enough experience to be the equivalent of a college degree. The USCIS considers 3 years of experience to equal 1 year of college education. In the U.S., college is typically completed in 4 years, which is the standard the USCIS follows. Thus, if a person has never obtained any college credit, he/she would need to have 12 years of professional experience to meet the H-1B qualifications requirement (i.e. 3 years of experience x 4 years of college = 12 years).
If a person has an Associate’s degree or a few years of college credit, he/she would only need to make up the remaining time in experience. The formula is the same. For example, if 2 years of college was completed, the person would need to demonstrate only 6 years of relevant experience.
The experience being used in this regard must be relevant to the H-1B position and the individual must be able to submit documentation attesting to this experience (i.e. employment verification letters from prior employers). It is also helpful to get letters from experts in the field, including from professors who can issue college credit, stating that the individual’s experience is equivalent to a college degree.
Please contact our immigration law office if you would like to discuss your qualifications for the H-1B category.
Tags: college degree, experience, H-1B
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Am I an intermittent H-1B or L-1 visa holder?
Intermittent status applies to H-1B and L-1 visa holders who reside in the U.S. for fewer than 6 months in a one year period. If an H-1B or L-1 visa holder maintains a residence abroad and is only needed periodically in the U.S. (not to exceed 6 months) the individual is an intermittent H-1B or L-1 employee not subject to standard time limitations.
Typically, a person may hold H-1B status for a maximum period of 6 years with limited exceptions going beyond 6 years. For L-1A status (managers/executives), the maximum time period is 7 years. For L-1B status (specialized knowledge professionals), the maximum time period is 5 years. These H-1B and L-1 time limitations do not apply to intermittent H-1B and L-1 visa holders and these individuals can renew their status indefinitely.
Filing for intermittent status is the same as filing for regular status, with a notation made that the individual resides abroad and is therefore an intermittent employee. Intermittent status is an attractive option for individuals stationed abroad and due to its flexibility, should be utilized whenever possible to avoid the standard categorical restrictions of H-1B and L-1 status. Please don’t hesitate to contact our immigration law firm if you would like to discuss intermittent status in detail.
Tags: H-1B, intermittent, L-1
Posted in FAQ H-1B, FAQ L-1, H-1B | Read More »
Am I allowed to change employers in H-1B status?
Yes. This is known as H-1B portability. A person in H-1B status may switch to a new employer provided the new employer files an H-1B petition on the worker’s behalf requesting the change.
This “change of employer” petition is similar to an initial petition and must include the applicable forms and fees, as well as set forth information about the company, the H-1B position and the worker’s qualifications.
The most important thing to note with H-1B change of employer petitions is that employment with the new employer may begin upon filing the petition (i.e. upon receipt at the USCIS) provided ALL of the following four conditions are met:
1. The worker was lawfully admitted to the U.S.
2. The new petition is non-frivolous (i.e. not without basis in law or fact)
3. The new petition was filed before the date of the worker’s expiration of stay
4. Subsequent to the worker’s lawful admission to the U.S., he/she has not been employed with authorization before filing the H-1B change of employer petition
In other words, if the worker meets all 4 criteria above, he/she does not need to wait for the petition to be approved before starting employment with the new employer.
Please contact our San Francisco immigration law firm if you need assistance with your H-1B petition or would like to discuss changing H-1B employers.
Tags: change of employer, H-1B, portability, switch employer, transfer employer
Posted in FAQ H-1B, H-1B | Read More »
Are there any situations in which I may extend my H-1B status beyond 6 years?
The general rule is that H-1B status may be granted for a maximum period of 6 years. Typically, an individual who has reached 6 years must depart the U.S. at the end of the 6th year. If an individual leaves the country and stays outside the U.S. for one year or more, he/she is eligible to apply for another 6 years in H-1B status, but will be subject to the annual cap (quota).
There are two exceptions that allow an individual to remain in the U.S. beyond the 6-year maximum without having to return home. First, H-1B status may be extended beyond 6 years if a labor certification application (also known as, a PERM application), an I-140 immigrant petition, or an adjustment of status application was filed on the H-1B holder’s behalf at least 365 days prior to the expiration of his/her current H-1B status, and the case is still pending.
Under this exception, H-1B status may be extended in 1-year increments until there is a decision on the application or petition. Second, H-1B status may be extended beyond 6 years for any person who is the beneficiary of a first, second, or third employment-based petition, who, due to per country limitations (i.e. availability of a visa) is unable to file for or obtain immigrant status. For this exception to apply, the individual must have an approved I-140 immigrant petition.
Under this exception, H-1B status may be extended in 3-year increments until a visa number is available and there is a decision on the adjustment of status (“green card”) application.
If you require the assistance of an immigration attorney with questions regarding your H-1B status and eligibility for extensions, please don’t hesitate to contact our office.
Tags: 6-year maximum, AC21, employment-based green card, h-1b extension
Posted in FAQ Employment-Based Green Card, FAQ H-1B, H-1B | Read More »
Is the position being offered to me an H-1B specialty occupation?
A specialty occupation is defined in the H-1B regulations as a position requiring the “theoretical and practical application of a body of highly specialized knowledge and attainment of a Bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.” To put it plainly, the position must require a Bachelor’s degree (or its equivalent) in a specific specialty relevant to the position duties. There are various standards the United States Citizenship and Immigration Services (USCIS) looks at when determining whether an H-1B position is a specialty occupation. The first is whether a Bachelor’s or higher degree (or its equivalent) is normally the minimum requirement for entry into the position (i.e. generally speaking across industries). The second is whether the degree requirement is common in the specific industry in parallel positions among similar organizations/companies (i.e. similar in size and type). The third is whether the specific H-1B employer normally requires a degree (or its equivalent) for the position. Lastly, the USCIS will review the nature of the specific duties and determine whether they are so specialized or complex that the knowledge required to perform the duties competently is usually associated with attainment of a degree (or its equivalent) in a specific specialty. An H-1B position will not be considered a specialty occupation based on the job title alone. The main focus for the USCIS is on the complexity of the duties. If you have any questions about the H-1B category and/or whether a position qualifies as a specialty occupation, please don’t hesitate to contact our office.
Tags: Bachelor's degree, H-1B, specialty occupation
Posted in FAQ H-1B, H-1B | Read More »
May I have intent to immigrate in H-1B status?
The H-1B category allows for dual intent, which means both short-term nonimmigrant intent and long-term immigrant intent. H-1B status is a temporary status for an individual working in a specialty occupation (i.e. in a job that requires a degree or the equivalent). An individual who intends to hold H-1B status temporarily and then return to his/her home country has nonimmigrant intent. An individual who has the short-term intent to work in H-1B status and the long-term intent to live in the U.S. permanently has both nonimmigrant and immigrant intent (i.e. dual intent), which is permitted. Case law has held that the mere desire to obtain permanent residence in the future does not, by itself, automatically disqualify an alien from admission as a nonimmigrant. The United States Citizenship and Immigration Services (USCIS) recognizes dual intent not only for the H category, but for the L, O, P and E categories as well. Please don’t hesitate to contact our office if you have questions about dual intent or would like our assistance with your visa or green card petition.
Tags: dual intent, green card, H-1B, immigrant, immigrate
Posted in FAQ H-1B, H-1B, Immigrant Visas | Read More »
Which employers are exempt from the H-1B cap?
Most employers are subject to the H-1B cap (annual quota of visa numbers available) when sponsoring someone for an initial H-1B visa.
However, there are four categories that are cap exempt:
1. Institutions of higher education (colleges or universities)
2. Non-profit organizations affiliated with an institution of higher education (there are a variety of affiliations that would qualify, although most involve shared ownership or control)
3. Non-profit research organizations (basic research or applied research)
4. Government research organizations (defined as a U.S. government entity)
If you have any questions regarding H-1B sponsorship and/or whether your company or employer qualifies as H-1B cap exempt, please don’t hesitate to contact our office.
Tags: cap-exempt, college, H-1B, non-profit, university
Posted in FAQ H-1B, H-1B | Read More »
Is Self-Employment Permitted on an H-1B Visa?
The short answer is, no. However, you could (and many people have) establish a new company (or non-profit entity) that will hire you as an employee and sponsor you for an H-1B visa. The position must meet all of the normal H-1B requirements.
It must be in a ‘specialty occupation’; meaning an occupation that normally one cannot enter without possessing at least a university degree in the specialty, or in a related field. In addition, the company will have to pay you, the employee, a salary that meets the prevailing wage requirement. And yes, the company will need to pay payroll taxes on your salary. When an H-1B sponsor is a brand new company, you’ll want to demonstrate that it has sufficient capital to pay the proffered wage.
Additionally, it’s important to adequately explain to Immigration what the business model of the new entity is. Submitting a well-written business plan can help, as will evidence of revenue or contracts with customers. Lastly, although there is no regulatory requirement to have a physical office in the H-1B context, it is helpful to have at least part-time or virtual office space and to submit an office lease along with the other evidence in the petition.
Tags: H-1B, new office, prevailing wage, self-employment, specialty occupation, visa
Posted in FAQ H-1B, H-1B | Read More »
I Have an H-1B Visa. Can I work for more than one employer?
As an H-1B visa holder, you may work for more than one employer. However, each employer must file a separate H-1B petition on your behalf. H-1B status does not allow you to work everywhere and in any capacity, the way that a green card or an Employment Authorization Document (EAD) does. You are only permitted to work pursuant to the terms of the H-1B petition approved by USCIS.
If you are already in H-1B status and a petition for concurrent H-1B employment is filed for you, you won’t need to worry about whether or not there are H-1B visa numbers available that year. You have already been “counted”, and therefore the issue of the H-1B quota does not apply to you. Even if your initial H-1B was exempt from the numerical cap, you may still work concurrently for a non-exempt employer without having to be counted. This is only the case if the non-exempt employment is concurrent.
These days, we don’t have to worry much about the H-1B cap, though, since there are plenty of H-1B’s left at the moment. As of the latest count, only about 45,000 visa numbers had been used.
Tags: concurrent employment, EAD, exempt, green card, H-1B, H-1B quota, non-exempt
Posted in FAQ H-1B, H-1B | Read More »
