H1B Frequently Asked Questions

What is H1B Visa?
The H1B visa enables foreign professionals to be employed in USA. The visa program enables US employers to hire foreign professionals, initially for three (3) years and extended up to a total of six (6) years. Visa validity could be extended beyond six years if the employee has applied for permanent residency in USA. One of the things that makes this visa so desirable is that, unlike many other nonimmigrant visa categories, it is a "dual intent" visa. By this, the employee can apply for permanent residency within few months of arrival in USA.

Why do I need a H1B sponsor, can’t I process my own visa?
An individual can not file their own H1B application. To obtain an H1B visa, an applicant must, first, find a job with an H1B employer company in the USA; commonly known as your 'sponsor'. Your H1B sponsor (employer) then applies for / files your visa application.

Must an H1B employee be working at all times?
As long as the employer/employee relationship exists, an H1B employee is still in status. An H1B employee may work in full or part-time employment and remain in status. An H1B employee may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Can an H1B visa holder travel outside the USA ?
Yes. An H1B visa allows the holder to reenter the USA during the validity period of the visa and approved petition.

Can an H1B visa holder intend to immigrate permanently to the USA ?
Yes. An H1B visa holder can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (Green Card) status without affecting their H1B status.

What is the annual quota on H1B visas?
For FY2006, the annual limit (H1B cap) was 65,000 visas. So far, it hasn't’t changed for FY2007.

What is the procedure to follow when applying for an H1B?
The H1B application process needs to be initiated by the employer (sponsor). The employer must file a Labor Condition Application (LCA) with the Department of Labor providing all the required information. The employer must then file the certified LCA with a Form I-129 petition, along with supporting documentation. Based on the USCIS petition approval, one may then apply for the H1B visa.

How long can one be in H1B status?
One can remain in H1B status for a maximum period of six years at a time. After 6 years, if you remain outside USA for a period of 1 year, you can reapply for H1B. New immigration law permits you to extend H1B visa beyond 6 years, if you have applied for permanent residency (green card) and certain conditions are met.

Are there any restrictions on who an H1B holder may work for?
An H1B holder may only work for the sponsoring U.S. employer and only in the activities described in the filed petition. The H1B holder may work for more than one employer but must have a Form I-129 petition approved by each employer.

I am on H1B. Am I subject to the H1B quota?
No. Those subject to the H1B quota are those who are not currently on H1B status. In certain circumstances, one living abroad who is not on H1B status but who has been on H1B status in the last 6 months may be able to obtain H1B approval without being subject to the H1B quota.

Can I begin working for my new employer once I have filed the H1B petition?
If you are currently on H1B status and transfer it to a new employer, you can begin working for new employer upon filing the H1B petition. Otherwise, that individual is not eligible to start working.
If the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), then you may continue to work for your employer until the expiration date of your I-94 card / H1B approval notice. If the H1B petition is approved without an I-94 card, which means that the USCIS approved neither the change of status nor the extension of status but only approved the H1B petition, then you must immediately stop working, depart the U.S., apply for an H1B visa stamp at a U.S. consulate in one's home country, and finally be readmitted in H1B status before one will be able to continue working for her/his employer.

Why does an H1B transfer take so long? Isn’t there an easier process?
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.

The only major difference is that one who already holds an H1B status is not subject to the H1B quota, so will not need to wait until October 1st to start working if the H1B quota has been used up in that fiscal year.

Where is my H1B case filed, and how long does it usually take?
It depends. There are 4 primary service centers (Vermont, Nebraska, Texas and California) serving specific territories. Based on where you employer/sponsor is located, your petition is filed in corresponding location. Usually, it takes about 2 to 3 months for approval. To check current processing dates on each service center visit US Citizenship and Immigration Services.

My friend filed his H1B petition at the same time as I, but his petition was approved already. Why wasn't mine approved yet?
Each USCIS Service Center and each USCIS officer has a different caseload and each one takes a different amount of time to process cases.

I am here on an H1B visa and it has expired. What should I do?
If it is, in fact, just the visa stamp in your passport that has expired and not your H1B status itself, then there is no need for concern.Your visa stamp is a travel document only. If the visa stamp in your passport expires, then you will need to apply for a visa stamp at a U.S. consulate abroad the next time you travel out of the United States.
In general, your legal status in the U.S. depends upon the expiration date written on the I-94 card by the immigration officer at the port of entry. As long as your latest I-94 card (either a small white card typically stapled in one's passport or an updated one located at the bottom of your latest approval notice) is currently valid, you can continue to work for the sponsoring employer.

If I have an H1B approval, can I work for my employer in any state in the U.S.?
The USCIS has taken the position that, a person can only work in those cities / metropolitan areas listed on the Labor Condition Application (LCA) certified with the Department of Labor (DOL), and filed with the H1B petition. Generally, there must be a certified LCA for each location at which you will work, attesting that the employer will comply with the prevailing wage requirement for that local area.

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?
No. Your six-year clock in H1B status is not reset unless you leave the United States for at least one year.

My spouse is in H-4 status and was offered a job. Can s/he begin working?
No. H-4 is a non-working status. In order to be able 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 specifically request a change of status. The spouse must meet all of the requirements of the H1B visa. One holds the new work status and can take the job once the petition is approved with the change of status.

Do I need to apply/extend visas for my dependants?
Yes. Your dependants (spouse and children) are allowed to accompany and live with you in United States, as long as you maintain valid H1B status. They should file H4 visa, and get their visas stamped. When you extend your H1B visa, make sure you also extend your dependants H4 visa.

I filed my H1B petition through another attorney over two months ago. Is there anything you can do 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 will process the petition within 15 days if you pay a premium processing fee of $1,000.

If I have a valid H1B visa stamp 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. You 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 you might work, whether or not you already hold H1B status. However, if your visa stamp has not expired in the passport but now you have a new H1B petition approved to work for another employer, you can, in most cases, use the old H1B visa stamp 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 you an I-94 card valid until the expiration date of your visa, then you should request that the officer indicate the correct date. If the officer refuses to correct his/her mistake, then you should ask respectfully to speak with a supervisor.