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   H-1B FREQUENTLY ASKED QUESTIONS
1) Changing Employers
2) Extensions - 7th year and beyond
3) Change in Salary
4) Mergers/Takeovers
5) Part-time H1Bs
6) Change of Status to H-1B
7) Vacation/Sick Leave
8) Three-year Degrees
9) Startup Companies filing H-1B Petitions
10) OPT and H1B Petitions
11) Quota Cap
12) H1B/H4 Stamps on Passport/Entry Issues
13) Previous Visa Denial and Application for H1B visa
14) H1B Validity
15) Starting Own Company While on H1B Status
16) "Bench Time" While on H-1B Status
17) Denial of H1B Visa at the Consulate
18) H-4 Issues

19) Didn't Find Your Answer?


1) Changing Employers

I am currently on H1B visa, working for Company A. Company B is ready to file an H1B petition on my behalf. When can I start working for Company B?

As per the provisions of the American Competitiveness in the Twenty-first Century Act (AC21), you may start working for Company B as soon as they file an approvable H-1B petition on your behalf.

I have been working for Company A on H1-B. Recently, I moved to Company B with their H1-B. Can I go back to Company A later if that H1-B is still valid?

Yes, but you should consult with an immigration attorney as there could be other issues involved.

I am working for Company A. Company B has filed for my H1B transfer, which has been approved. Now I have changed my mind, and would continue with Company A. Can I do this?

Yes, you can continue working for Company A through the validity of your H1B status.

I am in the US working for my sponsoring H-1B employer. The visa stamp on my passport is about to expire and my employer has filed an H-1B extension petition. Do I need to get the new H-1B approval stamped on my passport to continue working?

No, you need not. You can continue working for the same H1B employer without having the new H1B visa stamped on your passport. But if you need to travel outside the US, you must have the new H1B visa stamped on your passport before you can re-enter the US.

I arrived in the US to work for Company A, and after working for them for a few months, moved to Company B. Company B's H1B visa is not stamped on my passport, and the earlier stamp is valid for another two years. Can I travel out of the US and return with this stamp, or do I need to get my second H1B visa stamped before I can return to the US?

You may re-enter the US using the existing valid H-1B visa stamp. But be sure to carry the new H-1B approval notice (from Company B) and also make sure that the new I-94 that you get when you enter the US has the new validity date, i.e., the validity date of your Company B's H-1B approval.

I have an H1B stamp on my passport based on a Petition filed by Company A. But I have never traveled to the US using this visa. Now Company B is willing to sponsor me for H1B visa. Can I travel to the US using the current visa and have Company B file for a transfer while I am in the US? (I do not intend to work for Company A).

No. You need to have Company B get their H1B Petition approved, and then apply for a new H1B visa at the Consulate before you can travel to the US to work for Company B.

Currently I am employed by Company A. Company B is willing to transfer my H1B. Do I need to tell Company A about it or need their permission to transfer my H1B?

You do not need any permission. But whether or not you inform them is up to you, and subject to the terms and conditions of your employment with Company A.

How much time do I have to find a new employer when my current job is terminated? Is it only 10 days?

Actually there is no such thing as a 10-day grace period to find a new employer. This 10 day period is available for a person to leave the US after H1B stay, not to find a new employer. Ideally, the transfer petition has to be filed while you are still in H1B status.

How many pay stubs do I need to transfer H1B?

Our recommendation is at least two.

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2) Extensions - 7th year and beyond

I am in my 6th year on H1-B visa, working for Company A. Company A has filed a Labor Certification for me and it has been pending for over a year. Now I want to join Company B. Can Company B get the 7th year extension for me based on my pending Labor Certification application filed by Company A? Can I start working for Company B immediately after the H1-B Petition is filed? Does Company B need to file my Labor Certification later?

Yes, to the first two questions. As regards the last part of your questions, for your next H1B extension(s), i.e., 8th year and beyond, if there is a likelihood of Company A withdrawing your Labor Certification or substituting someone on your Labor Certification, then Company B needs to file a Labor Certification before your 6th year runs out so that it would be pending for one year at the end of your 7th year of H1B stay.

I am in my 7th year of H-1B stay, and the I-140 Immigrant Visa Petition filed by my employer (Company A), based on a Labor Certification filed more than a year ago, just got approved. But I cannot file for adjustment of status because of visa retrogression. Now I would like to join Company B. Can Company B get three years on my H-1B extension based on the I140 Petition approved for Company A?

Yes. Company B can get three years on your H-1B extension based on the I-140 approval in this scenario.

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3) Change in Salary

After I start working for my employer on H1B, can they make a pay-cut?

Yes, but the employer needs to file an amendment petition since this is a change in conditions of employment. Further, the new salary cannot be less than the prevailing wage.

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4) Mergers/Takeovers of H-1B Employers

My H1B employer has merged with another company. How does it affect my H1B status?

Your H-1B status is not affected if you continue employment in the same capacity.

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5) Part-time H1Bs

Can my employer file for part-time H1B, reducing working hours from 40 to 20?

Yes, your employer can file an amendment part-time H-1B petition, reducing working hours.

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6) Change of Status to H-1B

My wife is on H-4 visa. A company is about to file an H-1B Petition for her. When can she start working for this employer?

Since she is on H4 visa, she needs to wait for the approval of the H-1B petition to start working. If the employer is not cap-exempt, the earliest start date she can get is October 1st anyway.

I am in the US on H1-B visa and my husband is on H-4 visa. When my company files my H1-B extension petition, will my husband be automatically included for his H4 extension as well?

Not necessarily, unless you tell your employer. An H-1B extension petition addresses only the person on H-1B status. For extension of H4 classification, a separate application has to be filed. You should bring this to the attention of your employer and/or the attorney handling the matter.

Company B is about to file for my H1B transfer, and I am eligible for another full three year term. My dependents have their H4 valid for another eighteen months. Do I need to file for their H4 extensions also right away?

No need to do that. Your dependents' H4 status is not employer-specific. They will continue to be on H4 so long as you are on H1B status and their H4 is valid. But make sure you file H4 extension petitions for them BEFORE their H4 status expires.

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7) Vacation/Sick Leave

How does vacation, sick leave, or maternity leave affect my H1-B status?

These do not affect your H-1B status.

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8) Three-year Degrees

I have a three year degree from an Indian university and one year of computer diploma. Do I qualify for H1-B?

If the computer diploma is from an institution recognized by US evaluators of credentials, the same can be added to the 3-year degree, for an equivalency of a 4-year US bachelor's degree, making you eligible for an H-1B classification.

I have a three year bachelor's degree from India and five years of experience in the software field. Do I qualify for H-1B?

Yes, three years of qualifying experience can be evaluated as one year of college and added to the three-year degree, making it equivalent to a four-year US degree.

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9) Startup Companies filing H-1B Petitions

Can a start up software consulting company file an H-1B Petition?

Yes, but there could be questions from USCIS about the ability to pay, bona fides of the job opportunity, etc. Consultation with an immigration attorney is recommended.

Does an employer have to show a profit to file for a new H1B?

Not necessarily, as the USCIS looks at the totality of evidence as to the viability of the petitioner, existence of the job opportunity, ability to pay issues, etc. It is advisable to consult an immigration attorney.

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10) OPT and H1B Petitions

I am on F-1 visa and my OPT (Optional Practical Training) EAD will expire on August 5, 2007. My employer is ready to file my H1B Petition when the 2008 quota opens. Can I continue to stay in the US and work during the gap period?

You can remain in the US for 60 days after the expiration of your OPT, but you cannot work during that period. This 60 days grace period will take you beyond the start date of your H1B validity, i.e., October 1st. It is important to file your H1B as soon as possible after April 1st as the cap is expected to be met much sooner this year.

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11) Quota Cap

I am currently in the US on B-1 visa and my I-94 is valid until June 30th. A US employer is willing to file an H1B Petition for me to start employment on October 1st. Can I stay in the US beyond June 30th since a petition would be filed before that date?

No, you should have a valid visa to stay until the start of your H1B employment. USCIS will require proof of status until October 1st before they approve the change of status. You may, however, have the H1B visa sent to the US Consulate in your home country where you can get it stamped and re-enter the US.

If the USCIS receives my H1B Petition on the day the cap is reached, can I expect to get an approval?

Not necessarily. If more petitions are received than the cap-subject numbers available, USCIS may return the petitions received in excess of the cap. In the past USCIS used a random selection for this purpose. It is strongly advised to file the petition as soon after April 1st as possible.

Will it help in any way to beat the cap if my Company files under premium processing?

No. Premium processing only guarantees a faster USCIS decision. It does not protect one from the quota limit.

Are persons on H-4 status subject to H1B cap?

Yes.

Are persons on L-1/L-2 status subject to H1B cap?

Yes.

What kind of employers are cap exempt?

Generally, if they can answer "yes" to one of the following questions, they are cap exempt, but consultation with an immigration attorney is recommended.
a) Are you an institution of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 USC Section 1001(a)?
b) Are you a nonprofit organization or entity related to or affiliated with an institution of higher education, as such institutions of higher education are defined in the Higher Education Act of 1965, section 101(a), 20 USC section 1001(a)?
c) Are you a nonprofit research organization or a governmental research organization as defined in 8 CFR 214.2(h)(19)(iii)(C )?


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12) H1B/H4 Stamps on Passport/Entry Issues

My spouse and I have just received our H4/H1B approvals with change of status. When do we need to get them stamped on our passport?

You need not get the new approvals stamped on your passport if you want to continue staying in the US without traveling abroad. But if you have to travel out of the US after the expiration of the currently stamped visa, then you need visas with new validity periods stamped on your passport.

I have received my H1B extension approval. But my current H1B stamp on my passport is still valid. Can I leave and re-enter the US during the validity of my current visa, i.e., without having to get the new one stamped on my passport?

Yes, but be sure to carry the new Approval Notice so that you get that validity date on your I-94 when you re-enter the US.

Can I get the visa revalidation stamp on my passport without leaving the US?

No. In July 2004, State Department has stopped revalidating H1B/H4 visas in the US. You have to go to a US Consulate to get this done.

Let us say my H1B is approved with the starting date of October 1st. How soon can I apply for the Visa and enter the US?

You can apply for the visa as soon you can. But entry should be within 10 days prior to the start of the H1B validity date.

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13) Previous Visa Denial and Application for H1B visa

My visitor's visa application was denied by the US Consulate recently. How does this previous visa rejection affect my chances of getting the H1B visa at the US Consulate?

A previous visa denial would not affect your H1B visa issuance if you and/or your employer meet all requirements.

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14) H1B Validity

I traveled to the US almost six months after my visa was issued by the US Consulate. What date is considered the starting point of my H1B status?

The date you first enter the US is considered the starting date of your H1B status.

Do I have to travel to the US within a certain time after getting the H1B stamp on my passport?

No, you can travel to the US any time before the visa validity expires. But make sure the employer is aware of it and job is still there.

Can my dependents apply for their H4 visas when I apply for H1B visa at the Consulate?

Though your dependents can apply for their H4 visas after approval of your H-1B visa, it is recommended that all of you apply at the same time.

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15) Starting Own Company While on H1B Status

Can I start my own company while I am in the US on H1B status?

Yes, you can. But your involvement should be "passive", i.e. you cannot "work" for the Company. You can hire others to work for your Company. Your income (profit) will be considered passive income like any other "investment" income.

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16) "Bench Time" While on H-1B Status

How much "bench time" (i.e., time without pay) is allowed while someone is on H1B status in the US? My employer tells me that he does not have a project for me.

When a person is in the US on H1B visa, he/she should be working for the US employer and getting paid according to the terms on the Labor Condition Application. There is no such thing as bench time without pay. The employer has to pay the H1B employee whether or not the person has a "project."

My employer has told me that they have to "bench" me because there is no work for me, and would pay me my living expenses only, i.e., not my full salary. What can I do about this?

The employer is required to pay you your salary as per the Labor Condition Application even if they have no work for you. You can report any violations to the Department of Labor. More information is available at DOL web site.

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17) Denial of H1B Visa at the Consulate

My H1B Visa Application has been denied by the Consulate under 221(g). What does this mean?

It refers to the Immigration and Nationality Act (INA) Section 221(g), and it means that your application is pending for administrative processing. If the question is about missing and/or additional information or documents, you will be permitted to return to the Consulate later with the required documents. However, if the denial is based on the merits of the H1B petition itself, i.e., you are not qualified or there are questions about the genuineness of the job opportunity and/or the employer, the file will be returned to USCIS for revocation of the H1B approval. Before revoking the approval, usually the USCIS writes to the employer, giving them time to give reasons why the H1B approval should not be revoked.

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18) H-4 Issues

I am on H1B status in the US. My parents overseas are really dependent on me, as I am the only son. Is there any way I can get H-4 visas for them?

No. H-4 visas are granted only to spouse, and children below 21 years of age.

I am on F-1 status and my spouse is on F-2. When I change my status to H1B, is it necessary to change my spouse's status to H4?

Yes, absolutely, if your spouse is physically present in the US.

What if my wife has an F-2 visa stamp on her passport and she is in our home country at the time my H1B is approved. Can she travel to the US using her F2 visa?

It depends when your H1B validity starts. She can travel back to the US on F-2 during the period you are on F-1, i.e., before the H1B validity takes effect. After arriving in the US, she should file a petition to change her status to H4.

Do our children, who are on H4 status, need F-1 visas to go to school?

No, they can go to school full time while on H4 status. To be able to work part-time while going to school/college, they should change status to F1.


19) Didn't Find Your Answer?

Click here for more FAQs.

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The information on this website is of a general nature only and should not be taken as professional legal advice.
Always seek legal advice before proceeding with your case.

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