H-1B Visa Frequently Asked Questions and answers

FAQs are for informational purposes only

FAQ

Those individuals who have temporary work authorization based on their student visa status (Optional Practical Training) may begin employment prior to the approval of the H-1B petition provided they possess a valid Employment Authorization Document (EAD) issued by USCIS.

If you are already in H-1B status with another employer, you may begin to work once the H-1B petition has been filed. This is known as H-1B portability. The timing of your start date under portability and the filing of the H-1B petition must be carefully coordinated. You must not begin your new employment until you have been advised to do so. Also, it is not advisable to leave your prior employment too soon.

If you are in the United States in a status other than H-1B, you may not begin your employment with the company until the petition filed on your behalf has been approved and you have received a new I-94 form evidencing your new status. If you are outside the United States, you may not begin your employment until you have obtained an H-1B visa stamp in your passport and you have been admitted to the U.S. in H-1B status.

Initial H-1B petitions can be approved for up to three years. An extension may be filed for an additional three-year period. An extension must be filed before your current visa status expires in order to preserve your employment authorization. Generally, individuals are entitled to a maximum of six years in H-1B status. That six-year period includes periods of time in H-1B status with other employers as well as any time spent in H-2B, H-3 or L-1 status.

There are two exceptions:

1. If 365 days or more elapsed since a labor certification or I-140 employment-based petition for permanent residence was filed on your behalf, your H-1B status may be extended in one-year increments until such time as your permanent residency application is approved.

2. If immigrant visas for your country of birth are oversubscribed and you are the beneficiary of an approved I-140 employment-based petition, your H-1B status may be extended in three-year increments until such time as your permanent residency application is approved.

According to regulations, H-1B workers must be paid their regular wages even when they are in a nonproductive status, unless it was due to something not employment related and at the request of the employee. Therefore, if an H-1B worker is part of a mandatory company-wide furlough, the employer must still pay them the wages listed in their LCA and H-1B application. If the furlough continues, employers still need to pay the regular H-1B salary during the furlough period. If hours are reduced instead, an amended LCA and H-1B petition will need to be submitted.

Yes, as long as the employer can prove that they still exercise the “right of control” over the beneficiary’s work. When working from home, no new LCA is required, as long as the home office is within normal commuting distance within the same area of intended employment. Otherwise, a new ETA Form 9035 labor condition application (LCA) and I-129 are required.

As long as you were in H-1B status in the U.S. within the past 6 years, you would still be cap exempt.

The I-140 will remain intact as long as the employer does not withdraw it within 180 days of approval. Finally, your priority date can continue to be retained for subsequent I-140’s.

If you have spent periods of time abroad during the validity of your H-1B petition, you may be able to “recapture” that time and extend the duration of your H-1B stay for a period equal to the time you spent outside the U.S. Your spouse and dependents in H-4 status may also be granted extensions up to the new expiration date of your stay.

If the change in location is outside of your geographical area (i.e., city or metropolitan statistical area), and/or you have a material change in job responsibilities, including promotions, the company may be required to file an amended H-1B petition on your behalf.

Immigration practitioners differ on the answer to this question. Some practitioners believe that the employee can choose not to join Company B, and it would not be a problem. Others believe that the employee is required to move to Company B, and that the choice to move to Company B or remain with Company A is not the employee’s choice to make.

The argument that the employee is required to move to Company B rests on the “last action rule,” which means that the last petition that was approved for the employee is the one that goes into effect. Once the H-1B transfer is approved, the employee is no longer authorized to work for Company B. This argument tends to make sense because if we extend this logic to its natural conclusion, and if the option was the employee’s whether to switch to Company B, then the employee could also switch back to Company A whenever they wanted and continue to jump back and forth at their discretion. Of course, this would lead to an absurd result.

To further elucidate the point, let’s assume that you have two I-797A approval notices (Company A and Company B), and a valid H-1B visa in the employee’s passport. When the employee arrives at the port of entry, and presents the H-1B visa, they are only allowed to present one I-797 approval notice, and let’s say in this case, they use Company A’s. The port of entry officer thereafter stamps the entry based on the I-797 with Company A and provides an I-94 based on that I-797. After entry, the employee would not then have the liberty of simply switching over to Company B, simply because you have an approved I-797A with that company, right? Instead, they would be expected to only be authorized to work for Company A, because that was the last action that DHS took and that DHS authorized for the employee.

Finally, on page 2 of the I-129 form, USCIS requests the beneficiary’s most recent I-129 receipt notice be provided, presumably, because USCIS wants to capture information on who the beneficiary is authorized to work for.

At the end of the H-1B visa validity period, there is a 10-day grace period to prepare to leave the U.S. During this time, employment is not allowed. However, if the employment is terminated before the end of the visa validation period, there is a 60-day grace period to find new sponsoring employment or change to another legal status. The grace period can only be used once during the visa validity period.

USCIS rules allow for a grace period of up to 60 days if your H-1B employment ends prematurely for reasons other than fraud or misrepresentation. During this grace period, you will be deemed to be maintaining your nonimmigrant status, and may seek other H-1B employment, change status to another immigration category or prepare to depart the United States.

If your H-1B employment ends prematurely, regardless of the reason, your employer is required to notify USCIS, which may result in the revocation of your H-1B petition. If your employer dismisses you from employment before the end of your period of authorized H-1B stay, the employer is liable for the reasonable costs of return transportation to your last place of foreign residence. However, your employer is not liable for return transportation costs for your family members. If you voluntarily terminate your employment prior to the expiration of the validity of the H-1B petition, this means that you have not been dismissed and your employer is not liable for the cost of return transportation. If you believe that your employer has not complied with this requirement, you may advise the USCIS Service Center that adjudicated your H-1B petition in writing. The complaint will be retained in the USCIS file relating to the petition.

The general rule under the Department of Labor’s (DOL) regulations that govern the wage component of the H-1B visa is that the employer needs to pay the H-1B employee for the entire H-1B period, even during nonproductive periods. The exception to the wage requirement is when it is the employee’s decision not to work. Unpaid leave may be permitted, if it is determined, and documented by the employer, that the H-1B worker requested the time off for personal reasons. The employer cannot have requested it. If an H-1B worker needs reasonable maternity leave, then this should qualify for an exception. Leave under the Family and Medical Leave Act does not terminate the H-1B relationship with the employer.

How long is it allowable for?

USCIS policy places no time limit on the length of the leave but the longer the leave the higher the risk of becoming out of status. The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year.

What evidence is required to support it?

U.S. Citizenship and Immigration Services (USCIS) confirmed that H-1B workers on approved leaves of absence continue to maintain lawful status and that a letter from the employer stating that the worker remains an employee but is on leave, would be acceptable documentation. Letter from the physician, medical records, prescription medication, or other documents that provide additional support for the employer’s statement, are also recommended.

What circumstances allow for it?

H-1B visa holders are entitled to the same FMLA rights as all other U.S. workers. H-1B employees must be granted the same rights and considerations as all other employees at an organization, so if the employer customarily pays employees who take medical leave, then they must pay the H-1B worker as well. This also means that if the employer is exempt from FMLA coverage, then employees, including the H1-B visa holder, may not be covered by FMLA.

H-1B visas are intended for people with a special skill, knowledge, or ability. Therefore, USCIS reasons that a low wage level, such as a level 1 wage, may not show evidence of a special skill or ability held by the foreign applicant, and therefore may not qualify as a “specialty occupation” position. Instead, it may indicate that the position is an entry level position which may not require a bachelor’s degree.

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