H1B Visa – Did You Know?

Some Interesting H-1B Visa Facts that May Help You:

For H-1B visa qualification, 3 years of job experience equals 1 year of university level coursework studies. Therefore if you have a 2 year degree and 6 years of job experience you may, by combining the work experience and 2-year degree, have the equivalent of a bachelor’s degree in a certain field.

You would need to have your experience and education evaluated by an evaluation company.

Full-time or Part-time for H-1B Status

You may apply for an H-1B visa for a full-time position or a part-time position.

Multiple H-1B Visas – Concurrent Employment

You can apply for more than one H-1B Visa. You can work for more than one United States employer, but you must have separate approved petitions for each employer.

H-1B Visa Transfer

You can transfer your H1B Visa from one employer to another.

There is no limit on the number of H-1B transfer petitions that can be filed. When you file an H-1B transfer application from one employer to another, you are legally authorized to work for the new employer upon receipt of the H-1b Visa transfer petitionas long as you’re maintaining status with your current employer.

H-1B Visa Transfer Timing

An H-1B holder can transfer from one employer to another within a relatively short period of time due to the fact that the H-1B individual can legally begin working for the new employer upon the filing of the transfer petition as long as he or she is maintaining valid H-1B status with his/her current employer (as discussed above).

This means that if all parties involved in the process act quickly and efficiently (the employer, foreign national, and attorney), the foreign national employee could possibly begin working for the new employer within approximately two weeks.

It should be noted, though, that if the case is filed via regular processing, it could take up to 3-5 months, approximately, for the case to be reviewed. If it is filed via premium processing, it should be reviewed within 15 calendar days.

H-1B Visa Transfer Pending and Travel

As per the above, you can work for a new employer in the H-1B status before your petition has been approved. In addition, you can also travel internationally while your H-1B visa transfer petition is pending and be readmitted to work for the new employer even while the H-1B transfer petition is pending.

This can be done in the following circumstances only:

  1. your previous H-1B approval notice is still valid;
  2. you are in possession of the H-1B transfer receipt notice; and
  3. you have a valid H-1B visa stamp in your passport.

H-1B Visa Stamp & Transfer

If you have successfully transferred your H-1B to a new employer – meaning your H-1B transfer petition was approved – and you have a valid H-1B visa stamp in your passport, you do not need to obtain a new H-1B visa stamp despite the fact that the stamp states the name of your previous employer. You can use the old visa stamp, as long as it hasn’t expired, and the new petition approval notice to travel internationally.

In other words, your H-1B visa stamp is still valid when you transfer employers as long as it has not expired. Only when it expires would you need to get a new visa stamp based on the new petition approval.

It’s important to note that in this scenario you must present your new petition approval notice and unexpired H-1B visa stamp – even if states a previous employer – when seeking to re-enter the United States from a trip abroad.

H-1B Holder’s Spouse & Children

An H-1B visa holder’s spouse and children can apply for H4 visas based on their relationship to the H-1B holder.

H4 visa holders cannot work in the United States, except under special circumstances, but they can go to school and they are in legal status while in the United States.

H4 spouses can work if their H-1B spouse is the beneficiary of an approved I-140 petition and they are subject to a backlog. In that scenario, the H4 spouse could apply for work authorization with the USCIS.

Previously being subject to the H-1B Cap

If you have previously applied for and received an H-1b visa within the past 6 years and it was subject to the H-1B cap you may not be subject again to the H-1B cap. This matter should be discussed with your immigration attorney as you may be eligible and it may be advantageous to you to subject yourself to the cap, if possible.

Duration of the H-1B Visa – 6 years max (with exceptions)

You can apply for an H-1B visa for an initial period of 3 years. Thereafter you can extend the H-1B visa for an additional 3 years for a max period of 6 years.

Any time spent in the L-1 visa status will be counted towards the 6 year total, regardless if it was L-1A or L-1B. If you are outside of the United States for more than 1 year, you will be eligible for a whole new 6 years of H-1B status, but you will have to subject yourself to the cap/lottery.

Exceptions to the 6 year max duration

There are two scenarios where an visa H-1b holder can extend his/her period of H-1b visa status beyond the max 6 year limit.

The first scenario is if you have filed either a Labor Certification application (PERM) or an I-140 petition 365 days before the expiration of the six-year limitation and the Labor Certification or I-140 petition is still pending. Under this scenario you can request extensions of up to 1 year until the resolution of the filings.

The other scenario, which doesn’t require a 365 day requirement, is where you have an approved I-140 petition and your immigrant visa number is not available due to visa retrogression. In this circumstance, you may extend your H-1b visa at 3 year intervals.

This is the same circumstance that allows H4 spouses to apply for work authorization.

Alternatives to the H-1B Visa

The H-1B visa can oftentimes be too restrictive for a potential beneficiary or employer as a result of the limited duration (6 years) or the strict start-date on cap subject applications (no earlier than Oct. 1) or even the lack of availability.

As a result, you may want to consider some of the following common alternatives: TN Visa for Canadian and Mexican nationals; the L-1 visa for intracompany transferees; the O-1 visa for extraordinary individuals; or the E-3 visa for Australians.

Other visas that may be suitable, depending on the nature of the situation, are the J-1 visa, the E-1 treaty trader visa, or the E-2 treaty investor visa.

From F-1 OPT to H-1B – Optional Practical Training & the “H-1B Cap Gap”

The “H-1B cap gap” refers to a situation where a gap exists between the expiration of your F-1 OPT status and the beginning date for an approved H-1b petition.

In such a situation, the USCIS has stated that it will allow you to bridge the gap between the expiration of your F-1 OPT status and the beginning date of your H-1b status as long as your OPT expires on or after April 1 and you file your H-1B petition before your OPT expires.

If you are in the 60 day grace period associated with your F-1 OPT when you file your H-1B petition, you can remain in the US until the October 1 start date of your H-1B, but you may not work while you remain in the US. This matter should be discussed with your H-1b immigration lawyer.

Size of Employer

An H-1b petitioning employer can be of any size. We have successfully obtained H-1b approvals for companies with 1,000s of employees just as we have obtained successful approvals for company’s with as few as 1, 2 or 3 employees.

In fact, we have filed many successful H-1B visa petitions for startup businesses.

What is important is that the company is a legit operation and that they have a need for an individual of a certain occupation.

H-1B Visa & Green Card

Due to the fact that the H-1B visa is a “dual intent” visa status, just like the L-1 visa, it can provide a good pathway to a green card, either through employment or through family.

The most common family route of obtaining a green card is through marriage to a US citizen.

On the employment end, there are a variety of paths, with some of them found on the follosing:  https://lightmanimmigration.com/green-card/employment-green-card/. When navigating the green card process, whether it’s through employment or marriage, it’s important to understand issues such as work and travel authorization, green card processing time, green card documents, the affidavit of support, the conditional green card, and immigrant visa processing versus the adjustment of status process.

Grace Period

If your H-1B job is terminated, you have a 60 day grace period to leave the US, transfer your H-1B to another employer, or change your visa status, assuming that you have more than 60 days left on your I-94 when you are terminated.  If you don’t, then the expiration date of your I-94 would be the deadline for taking one of the above mentioned actions.  This is an improvement to the previous 10-day grace period.

Put our H-1B Visa Attorney experience to work for you. Contact us to discuss your case: 212-643-0985, email us or fill out the contact form above.

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