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US Immigration H-1B and L-1 Visa FAQ


 
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H-1B and L-1 visa FAQ

Do I qualify for an H-1B visa?

Hire an attorney to find out for sure, but there are some basic prerequisites:

What does equivalent "work experience" mean?

As a general rule of thumb, you need three years of relevant work experience for each year of undergraduate studies that you are missing. So if you have a two-year degree, you usually need six years of work experience. Without any degree, you need twelve years.

You can also substitute work experience for a postgraduate degree to qualify for an EB-1 or EB-2 Green Card. In that case, the rate is five years of experience for each missing year of experience

How do I get the H-1B visa?

First, understand the difference between visa and status. This is discussed in the General FAQ.

First, find a job. The employer actually needs to do the paperwork. If you are the employer, hire an attorney.

The steps to getting an H-1B are as follows:

  1. The employer requests a prevailing wage determination. The official way is to use your state's employment agency. For instance, in California, this would be EDD. You can also use other published wage surveys, but could be fined if DOL later finds that the wage was too low.
  2. The employer applies for a Labor Condition Attestation (also known as LCA). If you apply for it on the Department of Labor Web site (see the link below), you will usually get an approval in a matter of minutes. You can also apply by mail, but this will take several weeks - why wait. The LCA also has the requirement that it must be posted publicly, or filed with a collective bargaining organization.
  3. You collect your diploma and transcript. If it is not a US diploma, you need to get a credential evaluation. If it is not in English, it needs to be translated. It is permitted for you to do both yourself, but of course is generally preferable to use an credential evaluator and translator.

  4. The employer fills out form I-129 (the petitions) and files it with USCIS. If you are in the US (for instance as a student), this must happen before your previous status expires.

    One of the questions asked on that form is for a US consulate abroad. Be sure to specify one that actually is authorized to issue non-immigrant visas. In most countries, only one or two consulates do.

    You may also consider filing form I-907 along with the I-129. This form requests premium processing and guarantees a response from USCIS within fifteen days. Don't forget to also apply for a change of status to H-4 for family members (form I-539)! Also remember never to include original documents with the I-129! The only exception is the original LCA; you must include this as original.

    Make sure you keep copies of everything you send to USCIS, and send it by certified mail, return receipt requested.

  5. When the H-1B petition is approved, the next step varies.
    • If you are inside the US, look at the approval notice. If the bottom part is a detachable I-94, tear it off and staple it to the I-94 that you have in your passport. This I-94 indicates that USCIS changed your status. Note that you don't have a visa (for the difference, see the General FAQ). You are done and continue to be legally in the US. Be aware that this H-1B status is good only until your next trip outside the US (Canada and Mexico are usually OK). At that point, you will need a visa to return.
    • If you are inside the US and there is NO I-94 attached, you need to leave immediately. Then follow the same procedure as described in the next option.
    • If you are outside the US, go to a US consulate in your home country (preferably the one that your employer specified on form I-129) and apply for a visa. The exact procedure varies; check the consulate's Web site for the local procedures.

Can I apply for my employee's H-1B without an attorney?

It is theoretically possible to do this without an attorney, but unless you are very experienced, it is likely cheaper to hire an expert. The H-1B fees alone amount to more than the normal lawyer's fees. So hiring an expert to do it right the first time can actually save you money.

How much does it cost?

This is actually a very complicated question. There are a number of different fees involved. Note that fees change frequently, and sometimes with short notice. Be sure to verify the current amount of the fees!

The fees for the I-129 and I-907, as well as the training fee, are the employer's responsibility. Some employers ask for reimbursement from the employee. In the case of the training fee, this is strictly illegal. For the other fees, the law still expects the employer to pay them, but is less explicit about it. All these fees should be paid with business checks rather than personal checks. Some service centers will refuse to accept applications where the fee is paid with a personal check.

The visa fees are the applicant's responsibility. The method of paying varies from one consulate to the next. Usually, you have to wire the fees in advance, although a few consulates accept credit cards or even cash. Please inquire locally.

LCAfree
I-129$190 base fee + premium processing fee if desired + training fee ($1500 for large companies, $750 for small employers) if applicable + Anti-fraud fee ($500 for the first H-1B application for an employer)
I-539$200 per dependent.
I-907$1000 premium processing fee, in addition to standard fee
Training Fee$1500 if this is the initial H-1B or the first extension with this employer. The fee is reduced to $750 for small employers, and waived for certain universities and non-profit organizations. Note that it is illegal for the employer to ask you for reimbursement for this fee.
Visa Fee$100 + Reciprocity Fee. The fee is due for each applicant.
Reciprocity FeeThis depends on your nationality and is generally the same as what Americans would be charged for comparable visas.

Should my employer use Premium Processing and pay the extra $1000?

As a rule of thumb, use Premium Processing for initial H-1Bs but not for extensions and transfers.

There are three main considerations. The main consideration, of course, is time. The second consideration is the need to travel. The third consideration can be the quota.

If you have at least six months before you need the H-1B approval, don't bother with Premium Processing. The traditional process should give you the approval on time. This is why you don't need Premium Processing for most extensions and transfers - you are allowed to work while waiting for the approval. Also, if you apply very early, you can save Premium Processing even for new H-1Bs.

If you expect to need to travel out of the US before the H-1B is approved, you will need the H-1B approval before you return to the US. Unless your old H-1B visa is still valid (usually only if you are transferring to a new employer), you also need to apply for a new visa at a US consulate.

Alternatively, you can sometimes travel out of the US before the H-1B is even filed.

The last consideration is the quota. As of the writing, the quota has been hit, and premium processing for new H-1Bs has been suspended. Of course, extensions and transfers are not affected.

How do I extend my H-1B status?

The process is virtually identical to applying for a new H-1B.

There are a few differences:

Remember to also extend your family's H-4s at the same time!

When do I need to extend my H-1B status?

The earliest you can file is six months before the old status expires. The latest is the day the old status expires. What counts is the date the envelope arrives at the USCIS service center!

How do I change employers on H-1B?

This process is known as a transfer. The process is very similar to extending your H-1B.

Your new employer applies for a new H-1B petition. Along with the petition, you need to provide the old employer's petition and the last two paychecks.

You should also look at your family's H-4 status at the same time!

In the case of a transfer to a new employer, the family actually retains their H-4 status. However, in most cases, the new H-1B will also at the same time be valid longer. If you neglected the family's H-4s, then they may have to leave the USA when the old employer's petition ends, instead of being able to stay with the H-1B for the full term.

When can I start working for the new employer after an H-1B transfer?

As soon as the application is received by USCIS. Most employers will wait a little longer, though, until the USCIS sent the receipt notice confirming that the application was received.

Note that there is a slight risk here: if USCIS denies the petition, you may find yourself suddenly out of status. In most cases, this is not a big problem, but you need to be aware of this risk.

When can I quit my old job after my H-1B transfer?

As soon as the application is received by USCIS. If you don't start working for the new employer right away, you would still be considered in status as "pending application".

When do I have to quit my old job after my H-1B transfer?

You don't have to quit your old job at all. The petition continues to be valid, and you can at this point choose to work either for the old or the new employer.

When do I have to start my new job after my H-1B transfer?

You don't have to start the new job at all, as long as you keep your old job. If you quit your old job, then you must start the new job when the petition is approved.

Can I work for both the old and new employer at the same time?

Yes, as long as you comply with both H-1B's terms. Most importantly, this means that if your H-1B petitons are for full-time employment, you can work for either employer full time. You can also work for both employers if you don't mind working 80 hours per week. But you cannot work part time for either one unless you have an H-1B petition for part-time employment in that job.

Do I need to get a new visa stamp after I changed employers?

No, as long as the old visa has not expired. The old visa does list the employer, but this is strictly informational and has no legal meaning. When returning to the US with such an old visa, just be sure to also carry the new petition with you. It may also be a good idea to bring a recent letter from your new employer confirming employment.

I used to work full-time for my employer, and would like to change this to part-time work. What do I need to do?

The part-time job is considered a completely different job. You need to get an H-1B transfer.

I have been promoted or my job duties are changing. What do I need to do?

You will probably need to have a competent attorney look at the specifics of your case, but in general, you will probably need to treat this as a transfer.

My department was recently purchased. What do I need to know?

Hopefully, the purchaser had an immigration attorney look at the acquisition. However, often this aspect is overlooked and can sometimes lead to pain. Fortunately, in most cases, your H-1B continues as if nothing had happened.

The main factors that make a difference here are the structure of the deal and your job duties, salary and location. In order to be unproblematic, the purchaser must acquire all assets and liabilities, not just the machinery and building. Of course, your job duties, location and salary also all need to be unchanged. Again, this is a very general statement, only an attorney can evaluate the details.

I am in H-1B and have recently been transferred to a different office. What do I need to know?

The details depend very much on the circumstances of the case. Only a competent immigration attorney can give you a reliable answer. In general, as long as the job duties and salary remains unchanged, and if the transfer was within the same metropolitan area, then the H-1B remains in effect.

What is the metropolitan area for H-1B purposes?

The metropolitan area is usually defined as the area that you can reach with a daily commute. That is, if you don't need to move to a different home, you can usually safely assume that the job is considered in the same metropolitan area.

What do I need to know about domestic business trips on H-1B?

The rules for business trips are very convoluted. You are allowed to go on a business trip for up to 90 days to any one city in a three-year period. However, this 90 day period applies not just to you, but rather to all H-1B employees from this employer.

An example may clarify this. Assume that Acme Corp sponsored three H-1B employees in their San Diego office: Adam, Bernhard and Chris. Adam and Bernhard together travel to corporate headquarters in New York for two weeks. How long can Chris travel to visit a client who also happens to be in the New York area?

Between themselves, Adam and Bernhard already used up 28 days of the 90 days available. Chris can therefore go for a maximum of 62 days.

I currently have an H-1B change of status, extension or transfer pending. Can I travel outside the USA?

This is generally not a good idea, although in some case it is supposed to be possible. Don't expect BCBP officers to know this, though!

If you leave the US while such an application is pending - and this includes even trips to Canada or Mexico - then you will probably find that you need to wait outside the USA for the approval notice. In most cases, you will also need a new H-1B visa from a consulate. Of course, if you already have an H-1B visa that hasn't expired, you can use that. This happens frequently in transfer cases, but rarely in extension cases, and almost never in cases of change of status.

For people subject to the current security checks, this may mean that you are stuck outside the US for up to six months or more.

In some cases, there is an alternative: do not file the H-1B until you have returned from your trip. This is not always an option, though.

How do I get a new H-1B visa?

First, you may actually be asking about an H-1B status rather than a visa. All that matters while you are in the US is your status - that is, you must have a current I-94. See the General FAQ for more information on this issue.

If you do plan to travel outside the US, then you will usually need a new visa. There are two ways of getting one. If you already had an old H-1B visa that has expired no more than a year ago, or that is about to expire in less than 60 days, you may be eligible for visa revalidation by sending your passport to St. Louis. Please note that Dept. of State announced that this service will be discontinued soon. Yuo may submit your passport until July 16, 2004. After that day, you must get your visa at a US consulate abroad.

I currently have an F-1 OPT. My employer wants to sponsor me for an H-1B. What do I need to know?

This is essentially just a change of status. The instructions are virtually the same as the instructions for an new H-1B above. If your employer files early enough and you don't expect to travel outside the US, you can even save the premium processing fee.

How does the six-year limit for H-1B or the five-year/seven year limit for L-1 work?

Thanks to Caroline for suggesting this question!

This limit counts time that you spent inside the US in any H or L status, as well as a few others. That is, if you switch from L-1 to H-1B, the time you spent on L-1 will still be counted. After a recent USCIS policy change, it no longer counts time that you spent outside the US while still maintaining ties to your employer (for instance, vacations or business trips).

Note that if you are married to an H-1B or L-1, any time you spent in H-4 or L-2 status also counts towards the limit!

The clock simply means that (in most cases), USCIS cannot approve a petition that would allow you to be for more than six years in any of the affected categories.

When does the six-year clock start ticking?

Thanks to Caroline for suggesting this question!

The day you arrive in the USA with your H-1B petition and visa.

For instance, if your petition is approved in February but your employer tells you not to travel to the US and report to work until August, then your six year clock would start in August.

Under what circumstances does the six-year clock start over?

The clock is reset if you physically leave the US for one year. The year must be consecutive, except for brief and innocent trips to the USA (such as vacations or short business trips).

The clock is NOT reset if:

Under which circumstances does the six-year clock stop?

The clock stops if you change to a different status where the clock does not apply (for instance, student). In these cases, the clock will resume as soon as you acquire any of the affected types of status. It also stops if you leave the USA, even for a short trip. In this case, the clock would resume when you return to the USA in H-1B status. Of course, if you leave the US for one year, then the clock would also be reset.

I used to work for an employer in H-1B status, and later resigned and returned to my home country. Now my employer wants to hire me back. Does the employer have to apply for a new H-1B?

Possibly, possibly not. As long as the job is still the same one as the original job, you should be able to use the old H-1B. Do be sure to bring a letter from your employer confirming that you are still employed.

However, INS at some point took the position that once you have been absent from the USA for a full year, you would be subject to the quota again - and this would necessitate a new H-1B petition. I have no recent information regarding whether or not this is still current policy.

The background of this position is that the applicant in this case also would be eligible for a full new six years of H-1B status. The quota applies at the beginning of the six years. If the old H-1B petition was still valid, this could be a way of circumventing the six-year-limit.

My six years H-1B maximum are about to expire, and my Green Card application is nowhere near ready. What can I do?

First, check and make sure that the six year limit really is where you think it is. After a recent USCIS policy change, you can now recapture trips outside the USA, so you may just have bought yourself a crucial extra few weeks.

If the employer filed the Labor Certification at least a year before the six-year limit is reached

In this case, you are eligible to apply for the so-called "seventh-year H-1B extension". This is actually a misnomer, because you can get an eighth, ninth and further year, too. In this case, H-1B extensions can be granted beyond the six year limit the same way as any other H-1B extension. The only difference is that these H-1B extensions are granted in increments of one year rather than three.

If the employer filed the Labor Certification recently (less than a year before the six years expire)

First, check if you have spent any time outside the USA. A recent USCIS policy change says that now, you can recapture any time you spent outside the USA - it used to be that vacations, business trips for your H-1B employer etc. all counted towards the six years. This is no longer the case.

In this case, you usually have to leave the USA. It is occasionally possible to change to a different status, such as student. In most cases, this is going to be difficult or impossible, because of clear evidence of immigration intent. Note that you cannot change to H-4 status in this case, because the H-4 status is subject to the same six year limit.

I left the USA after the full six years because my Green Card was not ready yet. Did this cancel the Green Card process?

No. The Green Card process is completely independent of the H-1B, and can be done whether or not you are in the United States. Once the paperwork is approved, you can simply use consular processing to get an immigrant visa and return to the USA. Once you have been physically outside the USA for one full year, you can also get a new H-1B for another maximum of six years.

I used to hold H-1B status, and now want to become an H-1B again. Will the six-year maximum start over or resume ticking?

It depends. The clock is reset after you have been physically outside the US for one year. A few common examples:

I am married to an H-1B holder and am in H-4 status myself. Now I found an H-1B employer of my own. What do I need to know?

This is essentially a normal H-1B case, except for two aspects: first, the six year limit counts not just time in H-1B status, but also in H-4 (as well as time in L-1 and L-2 status, and a few others). Second, you will not be entitled to a seventh year on your own H-1B if it depends on your spouse's Labor Certification. You would therefore have to apply to change to H-4, or you would have to have your employer file a Labor Certification for yourself after five years.

Also note that currently (2007), the H-1B quota has been reached on the same day it became available. That makes it extremely difficult for an H-4 to get an H-1B at all.

Am I eligible to apply for the seventh-year H-1B even if I apply for consular filing?

Yes.

Am I eligible to apply for the seventh-year H-1B even if the reason the I-485 hasn't been filed yet is the quota backlog?

Yes.

I am currently working in L-1 status and want to change jobs. What do I need to know?

There are a few important things to be aware of.

I am in H-1B status and recently got married. My fiance had arrived as a tourist, and we got married in the USA. Can he or she change to H-4 status?

If your spouse used a visa waiver

No. The visa waiver program does not allow changing to any other status, except for marriage to a US citizen.

If your spouse used a B-1/B-2 tourist visa stamp

If your spouse obtained a tourist visa from a consulate and explicitly stated as purpose "marrying an H-1B non-immigrant and changing status to H-4," then this should not be a problem. Also note that while you cannot legally use this to get married to US citizen, visiting to get married to an H-1B and changing status is permissible activity for a tourist because an H-1B is a non-immigrant.

If you got a tourist visa without this annotation, then you may still be able to change to H-4 status. It depends on the circumstances. For instance, if the visa is old and you have travelled to the US multiple times before, then there would be less of an issue than if you just got the visa.

Do be prepared to be questioned on admission. It is entirely possible that you will be denied admission. Don't panic - you can always get married outside the US and then apply for an H-4 visa at a US consulate. Simply being denied admission is usually not harmful.

I want to get a Green Card. How long do I need to have an H-1B or L-1 before my employer can start the process?

This is entirely up to the employer. Immigration law does not even link H-1B and Green Card at all; your employer can sponsor you for a Green Card even while you are outside the US. This actually used the be the preferred way in the days when processing times were measured in weeks instead of years.

I was born in one of the security-check countries and have been waiting for my H-1B visa at a consulate for months. Now my employer is no longer interested. Can I just get another employer?

Yes. The new employer has to file a new petition. As soon as the petition is approved, you can travel to the US using the H-1B visa that was issued based on the original employer's petition.

Also, consider having the employer contact a Congressperson. These delays are having such a severe impact that they need to be abolished.

I worked for my employer for two years on an H-1B. Now I was laid off. What do I need to do?

The most important point is that shortly before it disappeared, INS implemented a zero-tolerance policy. This means that they no longer forgive short periods of being out of status, as they used to in the past.

This means that you must ensure that you immediately file either a transfer to another employer, or if you do not yet have a new job lined up, you file a change of status to some other suitable status, such as B-2 or F-1. Note that, while a change to B-2 is permissible, you need to have a good reason. "I am looking for a new job" is a very bad reason in USCIS eyes. "Wrap up my affairs in the United States" would be better.

Do not forget to change your family's status as well!

I was recently laid off from my H-1B employer. Do I need to go back to my home country to get a visa before I can start working for another employer?

Thanks to Jose for suggesting this question.

It depends. You can only transfer your H-1B if you have been in status at all times in the past. The situation is easy if you immediately find a new job. Otherwise, you would have to change to another status, such as B-2, to remain in status. If you neglected this and continued to rely on your H-1B, then most likely you will indeed have to leave the USA (because you violated your status). You may be able to use the old H-1B visa to return, or you may need to get a new one, depending on circumstances.

The ultimate way to find out if you have to leave the USA is to wait for the USCIS decision. If there is an I-94 attached, they forgave you being out of status, and you can stay in the USA. This used to be routine a few years ago, but USCIS now uses a zero tolerance policy and rarely issues new I-94s in such a situation.

I was recently laid off from my H-1B sponsor job. Now I found a new job. Can I start working for my new employer under the transfer provisions?

It depends. If you applied for a change to another status, such as B-2, and filed the transfer within a relatively short time (most people say 60 days, although I have also heard some people say 30 days), then USCIS would indeed consider this a transfer even if you changed to some other status in the meantime.

By the way, note that you do not need to wait for the original change of status to be approved.

I have an H-1B or L-1 visa, and my spouse would like to attend a college or university. Is this possible?

Yes. With the exception of working, an H-4 or L-2 can do pretty much anything they like in their spare time.

There are a few things to keep in mind:

I have an H-1B or L-1 visa, and my spouse would like to work. Is this possible?

This is actually an area where H-1B and L-1 (or, more accurately, H-4 and L-2) are very different.

L-2

Yes. You can apply for an employment authorization document (EAD) at the service center that has jurisdiction over the place where you live. The form number is I-765.

H-4

No, you cannot work. If you qualify for it, then you can of course change to another status that does allow work. For instance, many spouses of H-1Bs are able to qualify for an H-1B of their own.

I have an H-1B or L-1 visa, and my spouse would like to do unpaid volunteer work. Is this possible?

Thanks to Caroline for suggesting this question!

Sometimes, but tread carefully. The main criterion is whether this work would be performed unpaid by Americans, as well.

Most importantly, it is illegal to volunteer for a productive position. There is a good reason for this rule: the system of work authorizations was set up to ensure that Americans are given the opportunity to earn money. If you are offering to work in a job without pay that an American would be paid for, you are essentially not only taking away somebody's job, you are also underbidding and driving down the wages of other people.

On the other hand, if you are volunteering for a true volunteer position, for instance as a translator in a hospital, as a museum guide, helping with community events, school chaperone, or similar positions that Americans would also do without pay, then this is not a concern, and your volunteering would be legal.

I am on H-1B. What happens to my Green Card application if I switch jobs?

Thanks to Kumaresh for this question!

Unfortunately, you will have to start over.

There are a few exceptions:

I am already working in the USA with an H-1B. Does the H-1B quota affect me?

No, only new H-1Bs are affected. There is one exception: if you are currently working in an exempt position and want to change jobs to a non-exempt position, the quota would indeed apply.

I am currently in another status and want to change to H-1B, but the quota has been hit. Can I stay in the USA?

This depends on various factors. USCIS announced that, for past years (through 2004), F-1s with Duration of Status (D/S instead of an expiration date) will indeed be automatically extended until October 1 to accommodate such cases. Unfortunately, this policy has been discontinued in 2005. You may need to find alternate solutions, such as attending college and changing to F-1 until the H-1B becomes available, or the like. What may or may not be available depends very much on the individual situation; please consult with a competent attorney for advice.

Can I submit an H-1B application now for a job that starts after the new quota becomes available?

Yes, by all means! USCIS accepts H-1B petitions up to six months in advance, that is, since April 1, 2005. USCIS also indicated that once regulations for the additional 20,000 H-1Bs for 2005 have been published, petitions filed with an October start date can be converted to the earlier start date.

In fact, you should submit your application as soon as possible because in 2004, the quota was reached on October 1.

I worked in the US for 6 years with an H1B visa. I would like to return to California after one year absence to experience an unpaid internship. If I enter the US with a J1 and after a few months a new company decides to offer me a job, am I allowed to switch from J1 to a new H1B?

This question was suggested by Alessandro.

This is actually quite an interesting situation! There are several things to consider here. First, you must arrive in the USA after at least one year. This means, the J-1 must start after one year (you can't spend a few months outside the USA and then try and spend the rest of the year with the J-1 - the full 365 days must be spent outside the USA).

Second, you need to make sure that your J-1 will not have the two-year home residency requirements. Some J-1s do not allow you to switch to an H-1B unless you spent two years at home.

Third, if you plan on doing that right now, you would likely run into the roadblock of the H-1B quota. It is expected that the 2005 quota will be exhausted in a few weeks, so you would not be able to get an H-1B until October 1, 2005. So it would be wise to make sure your J-1 will be good for as long as you can possibly get it, just so you have enough time to get the new H-1B. Otherwise, you may find yourself at the end of your J-1 with no H-1B to change to.

I've heard that the H-1B quota is irrelevant for University teachers. Is this true?

This question was suggested by Sean.

Yes, indeed. A University is entitled to apply for and receive H-1B status for a foreign teacher no matter whether the annual quota of H-1B visas has been exhausted. The quota applies to jobs at most employers, but universities and certain non-profit research institutes are exempt.

Can high school teachers get an H-1B? Are they exempt from the quota?

High school teachers theoretically qualify for an H-1B. In practical terms, though, the timing of the quota makes it virtually impossible to actually get an H-1B. The problem is that most school years start in August or September, while H-1Bs do not become available until October. As a result, many school districts are very reluctant to hire a teacher on H-1B.

High school teachers are not exempt from the quota.

 
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This web site is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. I made an attempt to provide somewhat accurate information as of the time of this writing, but the situation may well have changed by the time you read this. I am not a lawyer. I have no legal training. Please, if in doubt, be sure to use the services of a professional lawyer whom you trust. Keep in mind that there are no guarantees in immigration law. Most decisions are discretionary in nature, and even a competent immigration lawyer cannot guarantee success.

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