H-1B Visa Frequently Asked Questions - CAISCT · H-1B Visa Complete Do it Yourself Kit General H-1B FAQ Employer H-1B FAQ Student ... H-1B Visa Frequently Asked Questions 10/18/2006

10/18/2006 11:15 AMH-1B Visa Frequently Asked Questions

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H-1B Visa Frequently Asked Questions

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General H-1B Visa Frequently Asked Questions:

I would like to work in the U.S. Can I apply for the H-1B visa by myself, withoutan employer?

No. You must have a legitimate job offer from a U.S. company or organization.

I have an Associates (2 year) Degree and 1 year of work experience as aProgrammer Analyst. Do I qualify for the H-1B visa?

No. You must have at least a U.S. Bachelor (4-year) Degree or it's equivalent.

3 years of work experience is equivalent to 1 year of University. So, if youhave 6 years of work experience and 2 years of college, you could qualify.

The Degree and work experience should be directly relevant to your job title.

You will also want to have your credentials evaluated by a professionalevaluation agency to verify to the USCIS that you possess the equivalent of aU.S. Bachelor Degree. We use and recommend Trustforte Corporation.

How does the H-1B visa quota system work?

Each October 1st, the USCIS makes available a certain number of H-1B visasfor the next 12 months.

The Quota for the Fiscal Year (FY) 2007 (October 1st, 2006 to September30th, 2007) is 65,000. There is also a quota of 20,000 for US Master DegreeHolders, effectively making the quota 85,000.

The earliest you can apply for the H-1B Visa is 6 months before the requestedstart date. You may file on or after 4/1/06 for a 10/1/06 start date.

H-1B visa holders are not subject to the quota when applying for a transfer toanother company or an extension with the same company.

Employer H-1B Visa Frequently Asked Questions:

Is any provision made for continuity of H-1B validity in corporate restructuringsituations?

Yes. An amended H-1B petition is not required where a new corporate entitysucceeds to the interests and obligations of the original employer, and where



the terms and conditions of employment remain the same.

How would an employer under the section 105 portability provisions fulfill the I-9 verification requirement?

The situation here is analogous to the 240-day grace period of 8 C.F.R.section 274A.12(b)(20), which authorizes employment with the same employerfor up to 240 days after an extension petition is filed. In both circumstances,the employment is authorized but there is no provision on the I-9 form for thedocumentation of this fact. Thus, employers may want to follow whateverdocumentation procedures they use for the 240-day grace period.

Student H-1B Visa Frequently Asked Questions:

I am an F-1 student working in my OPT (Optional Practical Training) for aninsurance company as an Accounts Payable Supervisor. Do I qualify for an H-1B Visa?

It may be difficult. The USCIS will want to see evidence that the job dutiesrequire at least a Bachelor Degree in Accounting.

Your employer will want to gather evidence that other employees in the sameposition in your company and industry hold at least a Bachelor Degree inAccounting.

Your employer will also want to show the USCIS copies of Internal JobPostings and Help Wanted Advertisements that display the requirement of atleast a Bachelor Degree in Accounting.

I am currently on OPT and it will end on June 30 2006. If an employer files forthe H-1B Visa for me on or after 4/1/06, can I still stay legally in the US until10/1/06 whan my H-1B visa starts?

If your OPT expires ON or AFTER 8/1/06, you will be issued a change ofstatus and an I-94. This means you will NOT be required to leave the US forConsular Processing. This is because you are allowed 60 days after your OPTexpires to remain in status in the US.

If your OPT expires BEFORE 8/1/06, your H-1B petition will be approved, butyour change of status will NOT be approved. You will be required to leave theUS and attend an American Consulate for H-1B Stamping before returning tothe US to start work on 10/1/06.

To avoid leaving the US, you must somehow maintain legal status. A possiblesolution is to re-enroll in school from the time your OPT or grace periodexpires until 10/01/06.

H-1B Visa Holder Frequently Asked Questions:

Under the terms of the H-1B visa can I go on a leave of absence for severalmonths to return home to Canada? In other words, will my visa become invalidor will I be able to return and continue working for my original employer?

Yes, you may take a leave of absence and return home to Canada. At the endof your leave of absence you may return to work in the US.



I was on an H-1B visa with company A and got laid off on September 9th, Iapplied for H-4 before September 9th and got it approved recently. My questionis its already been 60 days since my termination and now I have a H-4, so will Ineed to apply for a new H-1B or transfer the H-1B with company A to companyB.

You will need to apply for a new H-1B Visa. You are only eligible to apply fora Transfer if you are currently working (in status) on an H-1B Visa.

Do H-1B Visa Holders have to pay taxes?

The H-1B visa holder is subject to withholding of Social Security (FICA) tax aswell as federal and state income taxes. H-1B visa holders are taxed as"resident aliens", on their worldwide income and may claim deductions forfamily members.

My company is laying off workers and I feel that I may be laid off soon, whatshould I do?

The USCIS considers H-1B Visa holders to be out of status once theiremployment ends, unless the H-1B holder has filed a petition to transfer theirvisa to another company or another type of visa (example: F-1 Student Visa,B-2 Tourist Visa, etc.). There have been rumors that the H-1B holder has 10days or 30 days after they are laid off to file a transfer petition. This is nottrue, however the USCIS has stated they are taking into account the currenteconomic slowdown into account when adjudicating H-1B Transfers.

We recommend filing for a change of status to the B-2 Tourist Visaimmediately. This will allow you to remain in status in the US as a Visitor whileyou either find another job, go back to school, or prepare to leave the US.Click here for details on applying for the B-2 Visa.

I currently hold an H-1B visa with company A. Company B wants to hire me.What do I do?

Company B must file a petition to transfer your H-1B visa to their company.You may work for Company B immediately after the petition is filed with theUSCIS. This change can be found in Section 105 of the AmericanCompetitiveness in the Twenty-First Century Act.

I am an H-1B visa holder and I just got married. My wife and her 12 year oldson are in Mumbai. What do I need to do to get them over here?

First of all, congratulations. Your wife and her son will need to go to thenearest American Consulate with the following documents: Their passports,the son's birth certificate, a copy of your marriage certificate, a letter from youremployer stating that you currently work there, and a copy of your H-1B visaand / or approval notice.

Upon presenting these documents to the Consular Officer, he will stamp theirpassports with the H-4 visa and they will be free to travel to the U.S. to livewith you.

The H-4 will be valid as long as your current H-1B visa is valid.



I am an H-1B visa holder and my first 3-year duration is going to expire in 3months. My employer is filing an extension for me. Do I have to file a separateextension for my wife and child's H-4 visa?

Yes you do. Use USCIS Form I-539.

You may use the same form for all of your H-4 dependents. You may file itwith the H-1B extension petition or after (as long as you include a copy of theI-797 Filing Receipt from your H-1B extension petition).

I am currently on an H-1B visa and I don't like the idea of just working for onecompany. Can I incorporate a company and file a petition to transfer my H-1Bvisa to my own company?

Yes you can. Keep in mind however that the USCIS will not approve thepetition unless they are convinced that the company is a real, legitimatecompany and will be able to generate enough revenue to pay your salary (atleast the prevailing wage).

The USCIS will want to see a business plan (including pro forma financialstatements), copies of contracts with client companies, and a business lease,among other things before they approve the petition.

Under what circumstances can someone who is running out of his/her sixyears in H-1B status extend that status?

AC21 provides for such extensions in two circumstances:

Under AC21 section 104(c), a beneficiary of an employment-based first,second or third preference petition who is eligible for permanent residence butfor the application of the per-country limits may obtain extension of the H-1Bstatus until the adjustment of status is decided.

Under AC21 section 106(a), an H-1B status can be renewed in one-yearincrements for beneficiaries of any employment-based petition until adjustmentprocessing is completed as long as 365 days or more have elapsed since thelabor certification application or immigrant petition was filed.

Lately, consular processing at most posts has been faster than adjustment ofstatus at most service centers. Does this legislation nevertheless makeadjustment more desirable than consular processing?

AC21 gives some advantages to people in adjustment of status over people inconsular processing, but at least one of the law’s benefits may be useable ineither context:

The section 104(c) extension beyond the sixth year for individuals withemployment-based immigrant petitions filed but priority dates not currentappears to be available only in the context of an adjustment of status.

The section 106(a) provision for extending H-1Bs beyond the sixth year whenpermanent residence processing has taken too long can be read to applywhether the individual pursues adjustment or consular processing, since onecan become eligible for its benefits if the petition has been filed. But there isno assurance that USCIS and the State Department will read this provision to



apply to consular processing cases.

Another advantage to the beneficiary of adjustment over consular processing isthat the AC21 section 106(c) permanent residence portability provisionspecifies the filing of an adjustment of status application as a prerequisite foreligibility, and thus appears not to apply to persons in consular processing.Under this provision, someone whose adjustment application has beenunadjudicated for 180 days or more can change jobs and/or employers if thenew job is in the same or a similar occupational classification as the one forwhich the petition was filed. (Note that this portability provision does not applyto beneficiaries of EB-1 extraordinary ability petitions, most likely becauseCongress assumed that such petitions already are portable.)

How does one become eligible for the AC21 section 105 H-1B portabilityprovisions?

This section allows a beneficiary of a petition to change employers to begin thenew employment upon filing of the petition, rather than waiting for the petitionto be approved. The petition must be nonfrivolous, and the beneficiary must bea nonimmigrant admitted to the U.S. (no particular nonimmigrant category isspecified, but the individual must have been previously issued an H-1B visa orotherwise provided H-1B status), must not have been employed withoutauthorization before the petition was filed, and must be in an unexpired periodof stay when the petition is filed.

Must an employer under the AC21 section 105 portability provisions pay thehigher of the prevailing or the actual wage under the labor conditionapplication?

Yes. The employment with the new employer cannot begin until the petition isfiled. The petition cannot be filed if the labor condition application has not beenfiled. The INA section 212(n)(1)(A) wage attestation of the LCA requires thatthe employer “is offering and will offer during the period of authorizedemployment” the required wage. Since AC21 section 105 makes the I-129pending period a “period of authorized employment,” those LCA attestationswould appear to apply during the period before the petition is approved.

Can an H-1B Holder start their own company and work for that company?

Yes, an H-1B Holder start their own company and work for that company. Inorder for the person on an H1B to work for their own company, the person isusually required to obtain a concurrent H1B approval to work for their owncompany, in addition to the present employer.

However, non-permanent residents (such as H-1B visa holders) may not ownthe shares of an S corporation.

Can a non-immigrant, foreign worker invest money in any venture?

A foreign national, living or working in the United States, is allowed to investmoney in any venture or enterprise. The law allows foreign nationals in theUnited States to purchase any assets or property, including real estate. Aperson on an H1B or other temporary work visa in the United States is legallyallowed to invest in any venture or company, and could possibly start to



undertake some volunteer work on behalf of the venture or company.However, the person cannot work on a full-time basis for that company andearn a salary, etc. without obtaining prior approval from the USCIS or DOL towork for that venture or company.

Can an H-1B Holder who starts starts working for his new employer under theAC21 section 105 portability provision leave the U.S. and re-enter before his H-1B Transfer petition has been approved?

Yes, but in order to re-enter the U.S., the H-1B holder should have a copy ofthe I-797 Filing Receipt showing that the petition was filed and should have aletter from the new employer stating that the H-1B holder is currently workingfor the new company.

An H-1B applicant for admission who is no longer working for the originalpetitioner is admissible at a POE, pursuant to portability in AC21, as long ascertain conditions listed below are met.

If these conditions are met, the H-1B applicant is admissible to the validitydate of the previous H-1B petition, plus ten days.

H-4 applicants for admission, who are dependants of H-1B aliens employedpursuant to visa portability provisions, must meet these same requirements:

The applicant is otherwise admissible.

The applicant, unless exempt under 8 CFR 212.1, is in possession of avalid, unexpired passport and visa (including a valid, unexpired visaendorsed with the name of the original petitioner).

The applicant establishes to the satisfaction of the inspecting officerthat he or she was previously admitted as an H-1B or the otherwiseaccorded H-1B status. If a visa exempt applicant is not in possessionof the previously issued Form I-94, Arrival/Departure Record, or a copyof the previously issued I-94, the applicant may present a copy of theForm I-797, Notice of Action, with the original petition’s validity dates.

The applicant presents evidence that new petition was filed timely withthe Service Center, in the form of a dated filing receipt, Form I-797,or other credible evidence of timely filing that is validated through aCLAIMS query. In order to be a timely filing, the petition must havebeen filed prior to the expiration of the H-1B’s previous period ofadmission. It must be emphasized that the burden of proof remains withthe alien to prove that he or she is admissible as an H-1B and eligiblefor a visa portability provisions described in AC21.

If an H-1B holder wants to travel out of the US or visit home country for a shorttime, What he needs to do in order to re-enter the US?

Get your visa stamped at the American Embassy in your home country.

I am currently working with company A . I am planning to join company B . Ialready have my Visa stamped under company A. When I transfer my H1B tocompany B do I have to get a new visa stamped again from India or I cancontinue to be in USA until I leave USA and re-enter.

You only have to get the new Company B H-1B Visa stamp in your passport if



and when you leave the US.

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H-1B Visa Frequently Asked Questions - CAISCT · H-1B Visa Complete Do it Yourself Kit General H-1B FAQ Employer H-1B FAQ Student ... H-1B Visa Frequently Asked Questions 10/18/2006