Green Cards (Common)
National Interest Waivers
Professors & Researchers
Executives & Managers
PERM Labor Certification
Investors (EB-5 visas)
Family (Spouse, etc.)
Work Visas (Common)
O-1 Extraordinary Ability
TN Canadians & Mexicans
J-1 Visa Holders
Nurses & Physical Therapists
Frequently Asked Questions about H-1B Visas
I have an two-year Associates Degree and one year of work experience as a Programmer Analyst. Do I qualify for the H-1B visa?
No. You must have at least the equivalent of a bachelor's Degree (4-year) from a university in the United States. Three years of work experience is generally equivalent to one year of college education. You could qualify if you have six years of work experience and two years of college. The degree and work experience should be directly relevant to your job title.
If you do not have a bachelor's or higher degree from a university in the United States, you should have your credentials evaluated by a professional evaluation agency to verify to the Immigration Service that you possess the equivalent of a U.S. bachelor's degree.
How long can a person be in H-1B status?
Under current law, you can be in H-1B status for a maximum period of six years. After that time, you must remain outside the United States for one year (to "reset" the six-year clock) before you may obtain another H-1B status. Certain foreign nationals who work on Defense Department projects may remain in H-1B status for 10 years. Furthermore, you may be able to extend your H-1B status beyond the 6-year maximum period under either of the following two circumstances:
What documents are needed to complete the H-1B petition?
The documents we need depend on the circumstances of each, but generally the following documents and information are needed:
Please note that this list is general in nature. Each H-1B petition is different, and the specific circumstances of the case dictate the type and volume of documentation needed. Qualified immigration counsel can assist you with determining exactly which documents are needed in your particular case.
How can I get a receipt number?
The U.S. Citizenship and Immigration Services issues a receipt for all petitions in approximately 3 to 4 weeks from the date of filing. Peng & Weber will send a copy of the Receipt Notice to your company and to you within two business days of receiving it from the Immigration Service.
What is the current processing time of H-1Bs?
Processing times for H-1B visas depend on where your petition was filed. You can find out the current processing times at the U.S. Citizenship and Immigration Services site.
How do I know when my case has been approved?
Peng & Weber will contact you by email or telephone when your case has been approved. You may also check the status of your case online at U.S. Citizenship and Immigration Services website. Simply type in your receipt number to receive information about an update about your case. Once your case is approved, it may take 7 to 10 business days for Peng & Weber to receive your approval notice from the Immigration Service. We will call or email to advise you that the Approval Notice has been received, and send it to you with further instructions.
How does the H-1B visa quota system work?
U.S. immigration law currently provides only 65,000 H-1B visas for every U.S. government fiscal year, which begins on October 1. Also, 6,800 of the total number (i.e., more than 10% of the worldwide quota) are set aside for workers from Chile and Singapore under terms of U.S. trade agreements with those two countries.
For Fiscal Year 2010 (October 1, 2009 to September 30, 2010), the worldwide H-1B quota of 65,000 is likely to be reached the first day that CIS begins accepting petitions on April 1, 2009 for the October 1, 2009 start date. (Although the fiscal year starts on October 1, CIS allows H-1B petitions to be filed up to six months in advance of the H-1B start date; that is why the filing gate opens on April 1.) For Fiscal Year 2008 and Fiscal Year 2009, the H-1B visa quota was reached on April 1, 2007—the very first day the CIS began accepting H-1B petitions for that year. (In accordance with CIS regulations, even though the quota was met on the very first day of filing, CIS conducted its H-1B visa lottery on the first several days, but the bottom line is that CIS had more than enough petitions on the very first day to fill the Fiscal Year's entire quota.) Unfortunately, if you lose the H-1B lottery or miss the quota cut-off altogether, you have to wait one year or successfully file in another visa category.
In addition to these 65,000 H-1B visas, there are 20,000 more H-1B visa-quota "exemptions" available for those who have earned an advanced degree at a U.S. academic institution. The H-1B petition form asks whether you earned an advanced degree from a U.S. institution, and if the answer is yes, then your petition is counted against the 20,000 advanced-degree quota. If the answer is no, your petition is counted against the regular 65,000-visa line.
For Fiscal Year 2008, the 20,000 advanced-degree H-1B visa-quota exemptions were used up by April 30, 2007 (i.e., ran out in less than 30 days), and for Fiscal Year 2009, they were used up on the very first day of April.
There are some employer-based and employee-based quota exemptions. On the employer side, certain U.S. employers are completely exempt from the 65,000 quota. Their employees can obtain H-1B visas year round without having to worry about the H-1B quota system. These exempted employers include institutions of higher education, organizations related to an institution of higher education, nonprofit research organizations, or government research organization. Some employers are clearly exempt, and some are clearly not. In between, there are some employers for which an argument could be made either way about whether they are exempt or not.
On the employee side, current H-1B visa holders are typically not subject to the quota when applying for a transfer to another company or for an extension with the same company. The major exception, of course, are employees who currently hold an "exempted" H-1B (e.g., from a university). Because they were hired by an exempt employer, these employees have never been counted against the H-1B quota, so when they try to cross over from an exempted employer to a regular employer, they generally face the same trouble as others trying to obtain a regular H-1B before the visa quotas are met.
Can I start working with the company once the website indicates that the petition has been approved?
Even though the website shows that the petition has been approved,
you should wait until you have received the original approval notice
(called a Form I-797) before you begin working. The Form I-797 will be mailed to you in
care of the company representative unless we receive other instructions
from the company as to where and how to deliver the notice. This
approval notice is necessary for the company to complete the Form I-9 and demonstrate
valid work authorization.
If I am in valid H-1B status with another company and a new company files a change of employer H-1B on my behalf, when can I start working?
Under the American Competitiveness in the 21st Century Act (called AC21), you may begin work at your new employer as soon as the Immigration Service receives the H-1B petition, generally the next business day after the filing of the petition. Only those who already hold H status (that is, not F-1s or J-1s) can take advantage of the "receipt rule."
If I am on an H-1B visa and want to travel outside of the United States, what will I need to re-enter the United States?
If the H-1B visa in your passport has not expired, you will just need to show your visa and your I-797 H-1B approval notice when you re-enter the United States. It is also helpful to bring with you a copy of your recent pay stub and/or recent letter of employment. If your H-1B visa has expired, you will need to apply for a new visa in the U.S. Consulate in the country you visit.
Do I have to pay taxes while I am in H-1B visa status?
As an H-1B visa holder, you are subject to withholding of Social Security (FICA) tax as well as federal and state income taxes. H-1B visa holders are taxed as "resident aliens" on their worldwide income, and may claim deductions for family members.
May I take a leave of absence for several months to return to my home country? If so, is my H-1B visa still valid for me to return to work for my original employer?
Yes, you may take a leave of absence and return home without jeopardizing your H-1B visa status. At the end of your leave of absence you may return to work in the United States.
My company is laying off workers and I feel that I may be laid off soon. What should I do?
Citizenship & Immigration Services (CIS) considers H-1B visa holders to be out of status once their employment ends, unless you have filed a new H-1B petition for another company, or a change of status to another type of visa (such as an F-1 Student Visa or B-1 Business Visitor). There is no designated grace period after termination of employment to file a transfer petition. However, CIS may take into account current economic circumstances when adjudicating H-1B change of employer petitions. If your current position may be terminated, you may want to begin searching for another employer who is willing to petition for H-1B status for you. If you do not find another position after your job ends, but wish to remain in the United States, you should file a petition to change to a different visa status.
I was laid off from my original employer. If I find a new job, will I be able to start working for them immediately, or will I have to wait until the new H-1B petition is approved?
If there was a gap between your employment at your original H-1B employer and the new petition for H-1B status, you will need to wait until your approval is received before you begin working for your new employer. You are only eligible to take advantage of the portability provisions if you are currently in status, meaning that you must be working for your H-1B employer.
Can my spouse or children work if they are in the United States in H-4 visa status?
No, individuals in H-4 visa status do not have work authorization. Your spouse or child may be eligible to change status to H-1B status or another visa status that authorizes employment.
An H-4 dependent who works is out of status even though the H-1B still may be in status. Working without authorization can seriously jeopardize your family's eligibility for future immigration benefits.
Can my spouse or children attend school if they are in the United States in H-4 visa status?
A person in H-4 status is allowed to attend school. However, H-4 visa holders can not obtain financial aid, and do not qualify for optional practical training (OPT) after completion of school. A spouse or child in H-4 visa status can choose to convert to F-1 student status, to obtain the benefits of that status.
I am an H-1B visa holder and I just got married. My spouse is outside of the United States. What do I need to do to get my new spouse into the United States?
First, congratulations on your marriage! Your spouse will need to go to the nearest American Consulate with the following documents:
The Consular Officer will issue your spouse (and children, if applicable) an H-4 visa to allow entry into the United States to live with 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 employer is filing to extend my H-1B for an additional three years. Do I have to file a separate extension for my wife and child's H4 visa?
Yes, you must file a Form I-539 application. Typically, you file the Form I-539 application at the same time as the H-1B extension petition. In appropriate circumstances, you can also file the Form I-539 application after your H-1B extension is filed. In this case, you include a copy of the I-797 Receipt Notice from your H-1B extension petition.
If the H-1B holder changes employers, must family members in H-4 status also file applications to maintain valid nonimmigrant status?
No, family members in H-4 status may file new applications when the principal beneficiary changes employers, but are not required to do so to maintain their status. H-4 nonimmigrant status requires that the person's spouse or parent remains in continued valid H-1B status, but H-4 status is not specific to an employer. The H-4 family members must extend their status before the expiration of their stay on their I-94 card or last approval by USCIS.
Do I have to work for a U.S. company, or can I apply for an H-1B visa by myself, without an employer?
Yes and no. Yes, you always have to work for a U.S. company or organization; you cannot file an H-1B petition for yourself. On the other hand, the law does not prohibit an alien from incorporating a U.S. company and having the self-incorporated company file an H-1B petition for the alien who owns the company. This is allowed because the U.S. company is generally considered to be a separate entity from the person(s) who own(s) the company.
Please keep in mind, however, that H-1B petitions for alien beneficiaries who are also the sole shareholder of the petitioning company can be heavily scrutinized by some CIS examiners. Competent counsel and careful preparation are critical if you want to incorporate a U.S. company and have that company hire you in H-1B status. In some cases, it may make better sense to apply for other work visas (or investor visas). Also, if you want to self-incorporate and obtain H-1B status for yourself, keep in mind that the company in which you own a substantial interest may not be able to file a PERM labor certification on your behalf. Therefore, if you ultimately desired to obtain U.S. permanent residence (i.e., a green card), you would have to achieve that through some other channel, such as marriage to a U.S. citizen (i.e., family-based petitions) or achievement-based petitions (e.g., National Interest Waiver, EB-1A Aliens of Extraordinary Ability, EB-1B Outstanding Professors or Researchers, etc.).
Can a non-immigrant, foreign worker invest money in a company in the United States?
A foreign national who lives or works in the United States is allowed to invest money in any venture or enterprise. Foreign nationals can purchase any assets or property, including real estate. A person on an H-1B or other temporary work visa in the United States is allowed to invest in a venture or company, and could possibly do some volunteer work on behalf of the venture or company. However, the person cannot work for pay for any employer without obtaining prior approval from USCIS to work for a venture or company (even if the person owns it). In some circumstances, there can also be an issue about what exactly constitutes "volunteering."
I am in H-1B visa status, and my employer has begun the permanent residency process. Will I have any problems renewing my H-1B visa or traveling internationally?
Generally not. An H-1B alien can be the beneficiary of a labor certification application, an immigrant visa petition, adjustment of status application, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. U.S. immigration law allows for "dual intent" for those in H-1B status. This means that a person may remain in nonimmigrant H-1B status, even though the person intends to become a permanent resident. While the application for permanent residency is pending, you may continue to travel and work in H-1B visa status.
I am nearing my sixth year in H-1B visa status but my permanent residency application is not finished. Can I extend my stay in H-1B beyond the six years?
There are two circumstances where you can extend your H-1B beyond the six-year maximum stay: