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H-1B Frequently asked questions

  1. My Employer has filed an H-1B cap petition for me. When can I start work?

 

Before you are permitted to start work you must be selected for an H-1B and then approved.  Typically cap cases are filed in the first week of April with an anticipated start date of Oct 1.  However, due to the increase in the number of Requests for Further Evidence (RFEs), it is possible that your case may still be pending adjudication beyond Oct 1.  Therefore, unless you have another form of work authorization such as OPT, you cannot commence work for your H-1B Employer until your application is approved.

 

  1. Is my Employer required to pay me a certain wage?

Yes, every H-1B petition must include a corresponding Labor Condition Application (LCA).    The LCA is filed with the Department of Labor (DOL) and typically takes 7-10 days to be certified.  The Employer is required to pay either the prevailing wage or the actual wage (this is the wage rate paid by the Employer to other employees with similar education and qualifications as the H-1B candidate.)

The wage is determined based on location, education and experience requirements and whether any special skills or supervision is required.  There are 4 wage levels, however, most Employers now file-based on Level 2-4, given the increased likelihood of a challenge to a level 1 wage.

  1. How long can I stay on H-1B for?

 

Typically, once selected for an H-1B cap petition and approved you can remain on H-1B for a total of 6 years.  However, an individual can extend the H-1B beyond the 6-year limit if they meet one of the following criteria under the American Competitiveness in the 21st Century Act (AC21):

 

  1. 365 days have passed since the filing of your Labor Certification (PERM), I-140 or I-485
  2. You have an I-140 approval and you are not able to adjust status, based on your current priority date.

 

Based on the 365-day rule an employee is entitled to a 1-year extension of their H-1B.  Based on an I-140 approval, an employee is entitled to a 3-year extension of their H-1B.

Alternatively, if you have been in the U.S. on H-1B for 6 years and then leave the U.S. for 1 year you become eligible for a new 6- year period of H-1B, however, your Employer would need to submit a new H-1B cap petition.  If selected and approved, you would be entitled to a further 6 years.

  1. What is the cap-gap and am I eligible for it?

 

F-1 students who have an H-1B cap petition filed on their behalf may be eligible for a cap-gap extension  Cap-gap has the ability to extend a student’s F-1 status and their employment authorization through September 30.  Cap-gap refers to the time between the end of the student’s F-1 status and the start of the H-1B, usually Oct 1.

 

There are two types of cap-gap extensions:

 

  1. Extension of F-1 status only. If you are in valid F-1 status at the time of filing H-1B (or you are within the 60- day grace period) then you will receive a cap-gap extension on their F-1 status.

 

  1. Extension of F-1 status and OPT. If you are in valid F-1 status and possess a valid OPT, you will receive a cap-gap extension of both your F-1 status and OPT, allowing you to work until Sept 30.

You will need a copy of your expired EAD card and Form I-20 endorsed for the cap-gap extension in order to continue working.

If the filed H-1B is denied, then you will have the standard 60-day grace period to depart the US.

  1. Can I travel while my H-1B petition is pending?

 

It depends on the nature of the petition.  In any given scenario you will need to make sure you have a valid passport and valid visa.

 

H-1B Cap case– If it is a cap case then you should not travel.  A cap case will typically request a change of status from your current status e.g. F-1, to H-1B.  If you travel while your change of status application is pending you will abandon the application and will be required to wait outside of the U.S. and go for Consular processing.

 

H-1B Extension- while it is possible to travel while your extension is pending, if your extension gets denied while you are outside of the US then you may not be permitted to re-enter if your current H-1B has expired.

 

H-1B Amendment- again, while it is possible to travel if the amendment gets denied you may have trouble coming back to the U.S.  If your amendment is based on a change of location, you would need to be able to demonstrate that work is available at the original location.

 

H-1B Change of Employer- Travel is possible but if the petition is denied while you are gone, you would have to be able to demonstrate that you intend returning to the original H-1B employer, assuming that is, that they have not withdrawn it.

 

  1. What are my options if my H-1B Employer terminates my employment?

USCIS has provided H-1B workers with the benefit of a 60-day grace period, which means if your current H-1B employer terminates your employment you have 60 days, or until the end of your authorized validity period (whichever is shorter), in which to find another employer and file a petition.  During this 60-day grace period, you will generally be considered to be in a valid H-1B status.  If you cannot find a new Employer to file within the 60 days, then you would need to leave the U.S. at the end of the 60-day grace period.

If your new Employer files the new petition after the 60- day grace period, this is likely to be approved for Consular processing only, although an officer does have the discretion to accept a late filing.

 

  1. If I change locations is my Employer required to file an H-1B amendment?

 

It depends on where the new location is and how long you will be working at the new location.  If the new location is within the same Metropolitan Statistical Area (MSA) then an amendment is not required.  However, your Employer must post the original LCA at the new work location. In this scenario, the terms of your employment must remain the same.   If there is a change to your job title and or role then this may be considered a material change in employment which would trigger the need for an amendment.

 

If the new location is within a different MSA then your Employer would need to file an amendment with USCIS.  The amendment petition should be filed prior to you moving to the new location.

 

Short-term placement.  If your move to a new location is only temporary, then your employer may not need to file an amendment petition. An Employer can send an employee to a new location provided the employment at the new location does not exceed 30 days in a 1-year period.  The placement may be longer than 30 days but cannot exceed 60 days if the following requirements are met:

(1) The H-1B employee continues to maintain an office or work station at his/her permanent worksite;

(2) The H-1B employee spends a substantial amount of time at the permanent worksite in a one-year period; and

(3) The H-1B employee’s U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite.

 

  1. If my new Employer files a transfer petition, when can I start working for this Employer?

 

As long as your I-94 is still valid at the time of filing of the transfer petition you are allowed to start working with your new Employer as soon as USCIS receives the petition.  It usually takes 1-2 weeks for USCIS to issue a receipt notice, however, your new Employer can check to see whether the filing fee checks have been cashed.

 

  1. If I switch employers do I need to get a new H-1B visa in my passport if I intend to travel?

 

No, you are permitted to use the H-1B visa in your passport for as long as it remains valid.  There is no need to obtain a new H-1B visa stamp as a result of a change in employment.

 

  1. Can a new Employer file an H-1B transfer for me if I have a H-1B extension currently pending?

While this is possible, it is typically not recommended, unless you still have some validity left on your original H-1B filing.

For example, if your H-1B expires March 20, 2020 and your current Employer has filed an extension, as long as your new Employer files a transfer before March 20, 2020 there should not be any problems in getting the transfer approved.

However, if the New Employer files the transfer in April 2020 and your current extension is still pending, you may run into problems.  For example, if your extension is filed in regular processing and the transfer application is filed in Premium processing USCIS will likely issue an RFE stating that they cannot approve the transfer application until the extension application is approved.  This is because you have to show that you are in valid H-1B status at the time of filing.

In this scenario, the transfer application would be dependent on the extension being approved.  If your new Employer files the transfer application and you decide to switch employers, your original Employer will probably withdraw your extension.  This means the transfer will either be denied or approved for Consular processing only.

 

  1. Is it possible for more than 1 Employer to file an H-1B cap petition for me?

 

Yes, it is possible, but you and your employer need to be careful. The regulations only prohibit the filing of multiple petitions by the same Employer for the same beneficiary in the same fiscal year.  There is nothing to prohibit different Employers filing a petition for the same beneficiary.  However, just because the employers have different tax IDs does not mean that it is okay unless each entity filing can demonstrate a legitimate business need. Otherwise, USCIS may issue an RFE, a Notice of Intent to deny (NOID) or a Notice of Intent to Revoke (NOIR).

For example, let’s say company A, B and C (all owned by the same individual) all file a separate cap petition in the same fiscal year for the same beneficiary for the same end client location.  Although all three companies have different Tax IDs there is only one position available.  This is a classic example of where USCIS could issue an RFE, NOID or NOIR questioning whether each company has a legitimate business need to file a separate H-1B petition.

However, if all three related entities were to file for a different end client, albeit for the same beneficiary they would be able to demonstrate a legitimate business need to file 3 separate petitions, on the basis that there are 3 available positions.

If the employers who are filing are completely unrelated to each other, then provided they are not acting in concert multiple filings are permissible.

 

  1. What are the chances of my H-1B petition receiving an RFE and/or a denial?

 

Unfortunately, in the current climate, there is a high chance that your case will receive an RFE, particularly if you are employed by an IT Consulting Company.  Additionally, the denial rates have increased significantly, most notably under the Trump Administration.

 

Forbes published an article in October 2019 which discusses the alarming increase in denial rates:

 

https://www.forbes.com/sites/stuartanderson/2019/10/28/latest-data-show-h-1b-visas-being-denied-at-high-rates/#594ba1ff54c3

 

Common RFE challenges include whether there exists a valid Employer-Employee relationship, whether the position qualifies as a Specialty Occupation, whether there is a specific and non-speculative qualifying assignment available for the requested validity dates, and whether the candidate has maintained their current status.

 

The best way to avoid an RFE and/or denial is to ensure that your case is properly prepared by an experienced Immigration Attorney and that all documents are thoroughly reviewed prior to being submitted to USCIS.

 

  1. What are my options if my case is denied?

 

The following options are available following a denial of your H-1B petition:

  1. Re-filing the H-1B petition- this is not available for an H-1B cap case;
  2. Filing a Motion to re-open and/or a Motion to re-consider;
  3. Filing an Appeal to the Administrative Appeals Office; or
  4. Filing a Federal lawsuit against USCIS.

If you have a denial and would like to discuss any of the above options please e-mail cprescott@patellegal.com.

 

  1. What is a 221g visa refusal?

 

A 221g visa refusal is a refusal of your visa at a Consulate. Unfortunately, this has become very common, particularly in India.  Sometimes the Consulate will request further documents before they can make a decision.  Other times, they will tell you that your visa is refused and that your case requires further administrative processing.  There is no set time limit for this type of case.  There have been incidents where an individual has received a 221g and been stuck outside of the U.S. for 6-12 months.  If you have received a 221g on your case please contact one of our Immigration Attorneys, who will be able to advise you further on the options.

 

  1. How long can I work while my H-1B extension is pending?

 

You are authorized to work for up to 240 days while the extension is pending.  If you do not have approval by this date you would have to stop working, although you are permitted to remain in the US.  To avoid this situation, it is best to file the petition in Premium Processing or at least upgrade the petition to Premium Processing well in advance of the 240- day limit.

 

  1. What are my options to work if my H-1B transfer is denied?

 

If your previous Employer has not withdrawn your prior H-1B and this remains valid, then you are permitted to go back to your original Employer and work as per the original terms and conditions of the H-1B filing.

 

However, if your previous Employer has withdrawn your old H-1B you cannot go back and work for them.  In this case, your new Employer could re-file or you could file with a completely different Employer.  However, because you have to be in valid status at the time of filing, any further petition is likely to be approved for Consular Processing.  This means leaving the US, going for stamping and then returning with a valid H-1B visa.

 

  1. Is it possible to work for 2 separate Employers while on H-1B?

 

Yes, however, both employers will need to file separate H1B petitions.  This is commonly known as “Concurrent H-1B.”  The second Employer will need to file a concurrent H-1B petition with USCIS.  You will need to be careful about how many hours you claim to work for each Employer to ensure that you can maintain your status.

 

  1. What filing fees are required for an H-1B petition?

 

Presently the following filing fees are applicable:

 

$460.00 filing fee

$500.00 Fraud Fee*

$750.00 training fee for employers with 25 or fewer employees OR $1500.00 for employers with 26 or more employees.**

$1,410.00 Premium processing fee (optional).***

$4,000.00 This fee only applies to Employers who employ more than 50 employees, if more than 50% of those employees are in H-1B or L1 status.

 

*The Fraud fee is only applicable for employers seeking an initial grant of H-1B and is therefore not required to be paid for either an H-1B extension or an H-1B amendment.

**The Training fee is only applicable for employers seeking an initial grant of H-1B or for the first petition requesting an extension.  It does not have to be paid for either a pure amendment filing or  for the second (or later) H_1B extension.

***Please note this fee is increasing to $1,440.00 on Dec 2.

 

  1. Can I pay for filing fees or is my Employer required to pay these?

All of the filing fees to include the Attorney fees have to be paid by the Employer, with one exception.  The Premium Processing fee can be paid by the Employee provided the request to file in Premium comes form the Employee and not the Employer.

The costs of filing for an H-4 and/or EAD can be paid by the Employee or their spouse.

 

  1. It is possible to own my own business or part of a business while working on an H-1B visa?

Any investment in a business should be purely passive.  If you hold a job title within the business USCIS may believe that you are working for that business, which would be considered unauthorized employment.  Passive investment is one in which you invest in a business but do not earn a salary or actively work for the business in any way.

As a reminder, you are only permitted to work for the Employer that filed your H-1B.

 

  1. Is my Employer required to pay me if my current project comes to an end?

 

Yes, if your Employer wants to continue to employ you.  The Anti-Benching provisions require that an Employer continue to pay an Employee the full wage during periods of non-productive status.  Benching, which is the practice of not paying an H-1B employee due to a lack of work is not allowed and can give rise to a Wage complaint, filed by the Employee with the DOL against an Employer.

 

 

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