H1-B

Q: What is an H-1B Visa?

A: An H-1B visa is a non-immigrant status for alien in "specialty occupations" (i.e. professional positions), which allows them to work in the US for three years and subject to extension for another three years.

Q: What is the difference between an H-1B status and an H-1B visa?

A: H-1B status is a non-immigrant status issued by the USCIS. An H-1B visa is a non-immigrant visa issued by an U.S. Embassy or Consulate abroad. Legal status allows you to stay legally within the U.S. while a visa allows you to enter the U.S. legally. Once you enter the U.S. using an H-1B visa, you become an H-1B status holder.

Q: How long does it take to obtain an H-1B status?

A: It usually takes a few months to obtain an H-1B status approved by USCIS, provided the H-1B quota has not been filled.

Q: What is the Premium Processing program?

A: With an additional payment of $1225 (in addition to the $325 filing fee for typical cases), one can require the Premium Processing Services, which guarantees 15-calendar day processing of H1-B visa application. Comparing to the regular a few months of waiting, Premium Processing Services significantly saves time for employers and H1-B visa applicants.

Q: What is the Premium Processing fee?

A: The fee for this service is $1225. The Premium Processing fee may not be waived. In addition to the Premium Processing fee, all filing fees related to the Form I-129 (Petition for Non-immigrant worker) must also be submitted. The Premium Processing fee must be submitted in a separate check or money order.

Q: What are the steps required to file an H-1B petition?

A: Five steps are needed to complete an H-1B petition:

  • Obtain a job offer from an employer located in the U.S;
  • Obtain the prevailing wage for your position from the Department of Labor;
  • File a Labor Condition Application and obtain approval from the Department of Labor;
  • Complete USCIS' H-1B forms, and include an employer’s petition letter;
  • Submit a completed and signed H-1B petition package to the USCIS.
Q: What does my employer need to do?

A: Your employer needs to do two things: First, your employer needs to provide us with information necessary to file an H-1B petition. Secondly, your employer needs to sign the documents that we have prepared.

Q: How long does it take to obtain the prevailing wage level for my job position?

A: Generally, we can obtain your prevailing wage level the same day.

Q: How long does it take to obtain Labor Condition Application approval from the Labor Department?

A: We can obtain the certified Labor Condition Application in 7 days generally. The certified form will then submit to your employer for verification and signature with all other documents.

Q: I have an undergraduate degree from a foreign country. May I still obtain H-1B status?

A: Yes, all foreign degrees need to be evaluated to determine whether the foreign degree is equivalent to a U.S. degree. We can refer you to an accredited agency for degree evaluation.

Q: I currently have H-1B status from my current full-time employer and have received an offer from another employer to work on a part time basis. May I accept the part time job offer? Is there anything I need to do?

A: You should ask the prospective employer to apply for a part time H-1B visa on your behalf. You may keep two or more concurrent H-1Bs, either holding one full time and one part time H-1B or holding two part time H-1B visas. It is not possible to hold two full time H-1Bs from two employers.

Q: I am in H-1B status now, and I would like to change jobs. How long does it take to obtain a new H-1B based on a new employer?

A: If you would like to change jobs, your new prospective employer must file a new H-1B application and pay all applicable fees, similar to the initial H-1B petition filed by your current employer. It generally takes between two to three months to obtain approval of an H-1B petition submitted by a new employer. However, you may begin working for your new employer as soon as the new H-1B petition is filed with USCIS under the new H-1B laws.

Q: When may I legally begin to work for a new employer?

A: As soon as your new H-1B petition is filed with the USCIS, provided you have an H-1B petition with another employer at the time of filing (i.e., you are in H-1B status when you filed your new H-1B petition).

Q: I am in H-1B status now but have been laid off by my employer. How long is the grace period that allows me to keep legal status?

A: Officially, there is no grace period. But in practice, USCIS has allowed a 30 days "grace period" before you must file a change of status during this time.

Q: I am in H-1B status now. If I am laid off, what must I do if I want to remain in the U.S.?

A: You need to convert to another non-immigrant status, such as an F-1, F-2, or H-4 status within the grace period. As long as you file your change of status application in time, you will be allowed to remain in the U.S. while your case is pending.

Q: Is there a relationship between obtaining an H-1B and obtaining a green card?

A: No, each is independent of the other. An H-1B is a non-immigrant status visa while obtaining a green card describes the process of becoming a permanent resident. You may apply for a green card with or without an H-1B and vice-versa.

Q: Should my H-1B title and salary match my Labor Certification application?

A: Not necessarily, since both petitions are filed independently. Your H-1B petition may be based on a salary at a bachelor level while your labor certification may be based on a master's degree education level.

Q: Is the size of my employer a factor in my H-1B petition?

A: Yes and no, the size of the employer sponsoring your H-1B is not a factor in theory. Rather, it is whether your employer has a real business need for the position you fill and whether it is financially able to pay your salary. So the more established the sponsor is, it is more likely to do so and thus a better sponsor.

Q: How much does it cost to apply for an H-1B petition?

A: The total H-1B petition fee is (1) the $325 filing fee, (2) the $1,500 fee, with more than 25 full time employees, or $750, effective December 8, 2004, and (3) $500 fraud prevention fee, effective March 8, 2005 (excluding the $1,225 premium processing fee).

Q: May I submit an employment based immigration petition before I obtain an H-1B?

A: Yes. An employment-based immigration petition does not require an H-1B petition. We have successfully helped many aliens obtain approved immigration petitions before they ever obtained H-1B status. Moreover, the filing of an employment based immigration petition does not preclude one from filing for an H-1B petition.

Q: May I obtain an H-1B if I have filed an immigration petition? Does an immigration petition affect my H-1B application?

A: An H-1B holder may have dual intent: both non-immigrant and immigrant intent. Therefore, the filing of an immigration petition, either an I-130 or an I-140, does not affect the status of an H-1B application.

Q: If my employer petitions for an H-1B on my behalf, what should my spouse and children do?

A: Your spouse and children need to apply for an H-4 status at the same time if they are in the U.S. and you would like to claim them as your dependents for non-immigrant status.

Q: What does the "six-year H status cap" refer to?

A: Generally, when an alien holding an H status (H1- B or H- 4) has stayed in the U.S. cumulatively for six years, that alien is prohibited from further extending his H status. The alien is required to change his/her H status or stay outside the U.S. for one year before reentering as an H status holder.

Q: Are there any exceptions to the six-year H status rule?

A: Yes. Under the law, if a labor certification application or an immigration petition has been filed on your behalf and has been pending for at least 365 days, you may apply to extend your H status for one year (at a time) even if you have already stayed in the U.S. for six cumulative years.

Q: I have already filed for an I-485 (adjustment of status). Do I still need to keep my H-1B status?

A: You might want to consider extending your H-1B because if your adjustment is denied and you did not extend your H-1B, you are out of status.

Q: How does USCIS calculate an alien's H-1B length of status?

A: The total amount of time or length of status under an H-1B is the cumulative time that you have worked for all your employers under an H-1B visa.

Q: How do I keep my H-1B status if I am in the process of adjusting my status and want to travel abroad?

A: You can obtain an H-1B visa from a U.S. Embassy or Consulate in Canada, Mexico, or your home country or by revalidating your H-1B status, provided you qualify.

Q: I am in H-1B status and my immigration petition (I-140) has been approved. I just filed an I-485 (adjustment of status) 30 days ago. If I change employers now, will the change affect my adjustment of status?

A: Yes. The change will affect your adjustment of status if you filed an I-485 less than 180 days ago. If you have filed an I-485 more than 180 days ago and you will work in an identical or similar position for the new prospective employer, you may change employers and the change will not affect your adjustment of status.

Contact Information

U.S. Office Address: 
60 East 42nd Street, 46th Floor             New York, NY 10165, USA
Phone: 646 480-5779 x 4652

Taiwan Office Address:                       台灣台北建國北路二段66號7樓
66 Jianguo North Road, Section 2, 7th Floor, Taipei, Taiwan 
Phone: 02 2515 5855

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