H-1B Common Questions
Updated: Mar 15, 2021
1. What is an H-1B?
H-1B status gives alien workers permission to temporarily work in a “specialty occupation” in the U.S. under the nonimmigration visa category. Normally, H-1B status allows an alien worker to lawfully stay in the U.S. for up to six years, which is granted three years at a time.
2. What is a specialty occupation?
According to USCIS.gov, H-1B Specialty Occupation requires:
a. “Theoretical and practical application of a body of highly specialized knowledge; and
b. 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 United States.”
Many professional positions can be counted as specialty occupations. The position must require at least a bachelor’s degree in the specific field. However, a bachelor’s degree or a higher degree does not guarantee the approval of the H-1B petition.
3. How many H-1B visas are granted each year?
Each year, there are 65,000 regular cap-subject visas and additional 20,000 advanced degree exemption H-1B visas available.
4. Does an H-1B employer must pay an H-1B worker a particular salary?
Yes. An H-1B employer must certify Labor Condition Application (LCA) to the U.S. Department of Labor (DOL) that the alien worker will receive the prevailing wage or the actual wage, whichever is higher.
The prevailing wage means the salary paid to workers in similar occupations in the geographic area of the intended employment determined by DOL, while the actual wage is the wage the employer pays to its employees in similar occupations at the intended employment location.
5. What is the Labor Condition Application (LCA)?
According to USCIS.gov, prospective H-1B employers must submit LCA to DOL on behalf of the alien worker to attest that the employer will comply with the following labor requirements:
a. “The employer/agent will pay the H-1B worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working.
b. The employer/agent will provide working conditions that will not adversely affect other similarly employed workers.
c. At the time of the labor condition application there is no strike or lockout at the place of employment.
d. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of employment.”
6. What is H-1B Cap?
The H-1B classification has an annual numerical limit of 65,000 new status/visas each fiscal year, and that limit is called a cap. Addition to the cap, there are 20,000 status/visas available for beneficiaries with a master’s degree or higher received from an U.S. institution of higher education, and those additional 20,000 is called an advanced degree exemption.
7. Can I file an H-1B petition on my own? Do I need to be sponsored by an employer?
No. An individual cannot file an H-1B petition for him/herself. The prospective employer will have to file the petition on behalf of the alien worker as the sponsor.
However, under certain circumstances, it may be possible to file an H-1B petition using a U.S. entity owned by the H-1B worker. But you should know that the USCIS tends to be very skeptical of this kind of filings.
8. I found a U.S. company that is willing to sponsor me for an H-1B position, but I must hire an attorney to file the case and cover all the costs. Is that okay?
Technically, no. It is required by law for the employer to cover certain fees associated with an H-1B petition. Such as the ACWIA fee and the fraud prevention and detection fees. Other fees such as attorney fee and government filing fees are also recommended to be paid by the employer but not specifically required.
9. What is the H-1B process?
The H-1B petition process usually includes the following:
a. Create a USCIS online account and submit an H-1B registration;
b. USCIS makes random selection;
c. If selected, employer/Agent files LCA with DOL;
d. Employer/Agent submits completed Form I-129 to USCIS along with the DOL – certified LCA.
10. Can my spouse or children come with me? If so, can they work or study in the U.S.?
Yes. H-1B Visa Holder’s spouse and unmarried children under 21 years old can come to the U.S. with H-4 Visa. The children of H-1B visa holders can legally go to school or college in the U.S., while the spouse can only file I-765 to work in the U.S. under certain circumstances, which is the H-1B worker has already started the application process of employment -based permanent resident status.
11. Can I work for several employers?
No. Legally, you can only work for one employer under each approved H-1B Visa. Although there is no limit to the number of H1 Visas a person may have. Multiple companies may file H-1B Visa petitions for a same employee.
12. Can I switch jobs holding H-1B Visa?
Yes, you can transfer jobs holding H-1B Visa. To qualify for an H-1B transfer, you need to be physically in the U.S., have a valid I-94 form, and at least 2 months’ most recent pay studs from your current employer.
You should know that H-1B transfers are not affected by the H-1B cap, you do not need to be “selected” by USCIS to submit an application like the new H-1B beneficiaries.
13. How long can I stay in the U.S. holding H-1B Visa? Can I extend my stay?
Initially, most H-1B beneficiaries are granted a maximum of three years’ status. Later, H-1B employers can file I-129 for an extension of stay to extend another maximum of three years for the employee. In general, an H-1B worker is limited to a maximum stay of six years in the U.S. However, some exceptions may apply for certain circumstances.
14. I am in the U.S. in H-1B status and my H-1B Visa has expired. Can I continue to stay in the U.S.?
You should first understand the difference between H-1B status and H-1B Visa:
An H-1B status is your legal status to physically be in the U.S.;
An H-1B Visa is a Visa stamp on your passport, which will be required to re-enter U.S. if you travel to other countries.
Now, if you are in the U.S. and your H-1B Visa stamp has expired, you can continue to stay as long as your status is valid. However, if you plan to travel internationally, you will need to acquire a valid visa stamp to re-enter the country.
15. Am I required to pay taxes in the U.S. holding H-1B Visa?
Yes, H-1B holders are required to pay taxes in the U.S.
16. Is there a way to expedite H-1B petition processing time?
Yes. The prospective employer can request for expedited processing by filing Form I-907, Request for Premium Processing, and USCIS guarantees processing within 15 calendar days.
The Premium Processing fee for H-1B nonimmigrant classification is $2,500.
17. Can I start my own company in the U.S. holding H-1B Visa?
Yes, H-1B visa holder can start a business in the U.S. (and also work for it) under particular regulations.
18. Can I or my family travel outside of U.S. and return to this status?
Yes, you or your family are able to travel internationally (personal or professional) and then return to the U.S., as long as your status and visa stamp are both valid. Under some conditions, you may be able to re-enter the U.S. using an expired visa stamp, which is called Automatic Visa Revalidation.
19. I am 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?
If your OPT authorization is still valid when your employer submits your H-1B petition to U.S. Citizenship and Immigration Services (USCIS), your OPT authorization is extended. You can continue working in F-1 status through the extension date.
If your OPT authorization is expired but you are in your 60-day grace period when your employer submits your H-1B petition to USCIS, your F-1 status is extended. You cannot work but you can remain in the U.S. through the extension date.
20. I am holding H-1B Visa and was recently laid off. Hong long can I remain in the U.S.?
Starting on the date of the employment termination, you will have up to 60 days – or until the expiration date on your current I-94, whichever period is shorter – to get sponsored for a change of employer, apply for a change of status, or simply depart the United States.
21. When can H-1B workers start working?
After your H-1B petition is approved, you may start working as earliest as October 1.
22. Can H-1B workers only work full-time?
Your employer can either apply a full-time or part-time H-1B for you, and you can only work under that time frame after the approval. For example, if you have applied for full-time and received an approval, then you can only work for that employer for full-time. You cannot switch between full-time and part-time without submitting a I-129 to make the changes.
23. How do I explain “H-1B status” to a prospective employer?
It is important for H-1B employer to understand their role and obligations in the petition process. H-1B is employer-sponsored, which means the employer is responsible for the petition fees and submitting the petition to USCIS. If the employer is not familiar with H-1B and its petition procedures, he or she should hire an immigration attorney to oversee the process.
24. I do not have a bachelor’s degree. Am I still qualified to apply?
Yes. According to the regulations, an alien may use combination of work experience or training for H-1B eligibility. The regulations states that “three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks”.
25. Is H-1B the only visa to permit a worker working in the U.S.?
You may be eligible for other types of nonimmigrant status that would allow you to legally work in the U.S. such as an L-1 visa, J-1 visa, or the O-1 visa. Contact us to discuss your options with our immigration attorney.
26. Can I take courses or obtain a degree while holding H-1B Visa? Yes, H-1B Visa holders can study full-time or part-time, depending on how much you can handle. As long as you are on your employer’s payroll and receive pay checks every month, you don’t have to worry about your legal status.
27. Do I need to file a new petition if my employer wants to give me a promotion?
If your promotion is routine and requires the same skill set and same level of education as your previous position, then you do not need to do anything. On the other hand, if the promotion requires different skills or a different level of education, then you may have to file an amendment for your previous H-1B petition.
28. What are my options if my case got denied?
If, unfortunately, your H-1B petition is denied, the denial letter should contain specific reasons why your petition is denied. Your employer may be able to file an appeal by submitting I-129B along with additional supporting documents to answer to the reasons from the denial letter. However, in some of the denial notices, it clearly states that an appeal is not possible. If that happens, you may talk to our immigration lawyer and discuss your other options to work in the United States.
29. What is the total cost of filing an H-1B petition?
I-129 Filing Fee: $460
ACWIA Fee: $750 or $1,500
Fraud Prevention and Detection fee: $500
Public Law fee (if applicable): $4,000
Premium Processing fee: $2,500
30. Can I apply for Green Card as an H-1B holder?
Yes, you can apply for Green Card as an H-1B holder. But you do not need to be an H-1B holder to apply for Green Cards.
31. How long is the H-1B process?
With regular processing, your H-1B processing time is somewhere around 4-7 months, while with Premium Processing services, a processing time of 15 calendar days is guaranteed.
32. Do I need to be physically in the U.S. to apply for H-1B Visa?
Not necessarily. A prospective employer may submit an H-1B petition on behalf of an employee, whether the employee is residing in the U.S. or not.