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New Jersey/New York Work Visa Attorney

H1B Professional Worker Visa


1. Q: What is H-1B visa?
A: H-1B visa is a nonimmigrant visa category allowing skilled professionals in a specialty occupation to work in the United States on a temporary basis. The employer in an H-1B process is the petitioner and the alien employee is the beneficiary. The alien employee must possess at least a bachelor's degree or an acceptable foreign alternative. Usually H-1B is suitable for engineers, professors, researchers, software programmers and other foreign professionals.  Aliens normally can work for a total of 6 consecutive years in the United States in H-1B status.
2. Q: How long does it take to obtain H-1B status?


A: It usually takes two to three months to have an H-1B approved by USCIS. However, the alien worker or the sponsoring employer may request “premium processing” by paying a $1,225 premium processing fee. With premium processing, the case will be processed within 15 calendar days or the $1,225 premium processing fee will be refund.
3. Q: What are the major requirements for an H-1B employee?


A: Three major requirements need to be met:

i.   Specialty occupation: the job you wish to perform has to be a specialty occupation which usually requires the alien possess at least a bachelor’s degree or its equivalent. Examples of specialty occupations include but are not limited to: engineers, nurses, professors, researchers, computer programmers and other professionals.


ii.   Educational requirements: you have to possess at least a bachelor's degree or its equivalent. Furthermore, the degree received by you and the job you wish to perform must be related. For example, in order to apply for an H-1B, a stockbroker should have a degree in finance or economics, a journalist should have a degree in journalism or writing, etc.
iii. Licensure: if a license is required under state law to practice a specific specialty occupation, the alien worker must hold the appropriate license.
4. Q: I have an undergraduate degree from a foreign country. May I still obtain H-1B status?


A: It depends. All foreign degrees need to be evaluated to determine whether the foreign degree is equivalent to an undergraduate degree offered by an accredited university in the United States. Our firm helps our clients to get the foreign degree evaluations through a third party credential evaluation service.
5. Q: I have an associate’s degree requiring only two years of education in a college in my home country. Can my work experience replace the required college education?


A: Yes, work experience can be substituted for the required degree.  If an alien does not meet the educational requirements, degree-equivalent experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education.
6.Q: Is the size of my sponsoring company a factor in my H-1B petition?


A: No, the size of the company sponsoring your H-1B is not a factor to determine if the company can file an H-1B petition for you. However, two important factors that should be considered are whether your employer has a real business need for the position you fill and whether it is financially able to pay your salary when you start to work.
7. Q: May I have a part-time H-1B?
A: Yes, you may have a part time H-1B.


8. 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, provided that the H-1B quota issue does not exist in your case.
9. Q: What does the 'six-year H-1B status cap' refer to?


A: Generally, when an alien holding H-1B status has stayed in the U.S. cumulatively for six years, that alien is prohibited from further extending his/her H status. Instead, the alien is required to change to a non-H status or stay outside the U.S. for one year before reentering as an H status holder. However, in some situations, an H-1B holder can extend H-1B status after the end of 6 years. Please see below.
10. Q: In what situations can an H-1B holder extend H-1B status after the end of 6 years (H-1B’s legal maximum period)?


A: There are only two situations in which an H-1B status holder can extend his/her visa status beyond the 6-year limit.

1) If the H1-B holder has filed either a Labor Certification application or an I-140 petition 365 days before the expiration of the six-year limitation, and the LC or I-140 process is still pending, the H-1B visa holder may extend his or her H-1B on an annual basis beyond the six-year limitation.  There is no upper limit on total years in H-1B extension under such circumstances as long as the immigration process is still ongoing.

2) If an H-1B visa holder has an approved I-140 petition AND the immigrant visa number is not available for him/her due to visa retrogression (and he/she is thus not eligible to file for an I-485), the H-1B visa holder may extend his/her H-1B on a three-year interval beyond the 6-year limitation.  There is no 365-day requirement for this circumstance.

11. Q: What is the H-1B Cap?


A: The H-1B “Cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on H-1B type of visa or authorized to change status if already in the United States. Therefore, there are two ways to be counted against the cap: applying for an H-1B visa or change of status to H-1B from another non-immigration status visa (such as F-1, L-1, J-1, etc.)


12. Q: What is the current H-1B “quota”?


A: Currently, the quota for H-1B visas is 65,000. Among the 65,000 standard spaces, 6,800 are set aside for the H-1B program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreement. These 6,800 spaces are reserved for Singaporean or Chilean citizens. Therefore, the actual H-1B quota is 58,200 for aliens outside of these two countries.  However, 20,000 new H-1B visas are available for those foreign workers who obtained a master’s or higher level degree from a U.S. academic institution.
13. Q: What kinds of H-1B petitions are not subject to “quota”?


a.   Petitions for H-1B status extensions;
b.   H-1B petitions sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government, or nonprofit research organizations;
c.  H-1B petitions for concurrent employment where the alien worker is presently in H-1B status which is subject to H-1B quota;
d.   H-1B petitions to change employers where the current H-1B is subject to H-1B quota;
e.   People who have had H-1B status in the past six years that took up space on the H-1B quota
f.    Those seeking H-4 dependent status (spouse or children of H1-B visa holder)


14. Q: I was in H-1B status but am now in F-1 (student) status and would like to apply for an H-1B status. Is the new H-1B for me subject to the H-1B quota cap?


A: If your previous H-1B was subject to the quota cap and was within the past six years, you are not subject to quota cap.
15. Q: I was previously admitted to the US in H-1B status, but did not exhaust my initial 6-year-period of admission. Then, I left the US and spent one year outside of the US. Can I use remaining years from a previously approved H1B?
A: Yes. USCIS has clarified that to avoid H1B quota, individuals who spent one year outside of the US and did not exhaust the entire 6 year term can choose to be re-admitted for the “remainder” of initial 6-year-perod without being subject to the H-1B cap.
16. Q: While my H-1B is pending, may I legally work for my employer?


A: If you have never been in H-1B status before and you do not have another permit to work (such as OPT or EAD), you cannot work until the H-1B is approved unless you are eligible for an automatic cap-gap extension of status and employment authorization. (please see below for details) If you are doing an H-1B transfer and there is no H-1B quota issue existing, you may legally work for the new employer as soon as the new H-1B petition is filed with the USCIS.

17. Q: What is “Cap-Gap”?


A: Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.


18. Q: How does “Cap-Gap” Occur?

A: An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training.  As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1.  If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.  Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.


19. Q: Which petitions and beneficiaries qualify for a cap-gap extension?

A: H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.


Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.


Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).


Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.


Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing. 


20. Q: How does a student covered under the cap-gap extension obtain proof of continuing status?

A: The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.


If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted.  The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status. 


21. Q: Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

A: If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.


For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation.  The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period.  Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval.  In both of these instances, the student would be required to leave the United States immediately.


22. Q: May students travel outside the United States during a cap-gap extension period and return in F-1 status?

A: No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.


23. Q: What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf?  It appears that F-1 status would be extended, but would OPT also be extended?


A: F-1 students who have entered the 60-day grace period are not employment-authorized.  Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).


24. Q: Do the limits on unemployment time apply to students with a cap-gap extension?

A: Yes.  The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.


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