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H1B FAQs
As a courtesy to our clients, many of whom are on the H1B status in the U.S. or applying for the H1B visa at an overseas consulate, The Law Office of Sheela Murthy has summarized frequently asked questions (FAQs) on H1B matters. We hope you find this information useful.
The Following Questions and Answers were from one of the monthly newletter received to Garlapati.net from www.murthy.com
(Q) Can I begin working for the new employer once I have filed the H1B petition?
(A) No. According to INS regulations, because each H1B petition is employer-specific, you must wait until the H1B petition has been approved by the INS. Although there have been some court cases which have held otherwise, the INS has consistently taken the position that a person cannot start working for the new employer until they have approved the H1B petition.
If you are in the U.S. and the H1B petition is approved as a change of employer or change of status (with I-94 card updated at the bottom of the approval notice), then you can start working for the new employer upon the INS approval of the H1B Petition and the change of status. If it is approved without an I-94, which means that the INS did not approve the change of status or the extension of status but only approved the H1B petition, then you must first exit the U.S., then apply for the H1B visa stamp at the home country consulate, and finally be readmitted with an H1B status before starting the new job.
(Q) Why does an H1B transfer take so long; isn�t there an easier process?
(A) The process for an H1B "transfer" is the same as filing a new H1B petition, and therefore it generally could take about the same amount of time to process the H1B.
The only major difference is that the person who is already on an H1B status does not fall within the H1B cap so will not need to wait till October 1 to start working if the H1B quota has been used up in that fiscal year. Otherwise, the process for applying for the H1B petition is similar to a new H1B filing; each H1B petition is employer specific.
(Q) I am on H1B. Am I subject to the H1B cap?
(A) No. Those subject to the H1B cap are those who are not currently on H1B status. According to the INS, in certain circumstances, a person living abroad who is not on H1B status but who has been on H1B status in the last 6 months may be able to obtain H1B status approval without being subject to the H1B quota or cap.
(Q) If I have an H1B approval, can I work for my employer in any state in the U.S.?
(A) Generally, a person can only work in those cities / metropolitan areas listed on the Labor Condition Application, or LCA, filed with the H1B petition. There must be a certified LCA for each location where you will work, attesting that the employer will comply with the prevailing wages for that jurisdiction. It is generally certified by locality, and not by state alone.
As many of you know, the INS raid on the employees at the San Antonio Air Force Base in 1999 was based on the employee working outside the work locations listed on the LCA and on the H1B petition. The American Immigration Lawyers Association (AILA) has challenged the INS on the need for an employer to file an H1B amendment upon a change in the work location. This issue is still being resolved; but the safe approach is to file an H1B amendment.
(Q) I filed my H1B through another attorney over two months ago. Is there anything you can do to expedite the case?
(A) Expedites are difficult to obtain in most cases. In the meeting with the Vermont Service Center in Sept. 1999, when Sheela Murthy spoke to INS officers, they explained their longstanding policy on expedite requests. The INS will generally expedite cases for the following reasons (and they do not view requests for expedites favorably):
(i) Emergent reasons;
(ii) Financial loss to the company, which must be evidenced in specific terms, i.e., not a broad and general statement of possible loss of revenue or income;
(iii) INS�s own error;
(iv) Humanitarian reasons.
(Q) I have an H1B and I would like to file another H1B with another employer, but I want to wait before I start work. Can I do this?
(A) Yes. There is no obligation to begin work immediately after the second H1B Petition is approved. But you must maintain your status by working for one of the two companies that have approvals for you. There is nothing to prevent you from waiting to begin work, especially if you have a project to finish. As long as the prior employer has not revoked the H1B petition with the INS, it is still legal to be working for the prior company.
(Q) My spouse is on H-4 and was offered a job; can s/he begin working?
(A) No. H-4 is a non-working status. The person on an H4 status must have an employer file an H1B petition or other working category to enable the person to work in the U.S. Once the petition is approved with a change of status, then the person is in the new, working status and can take the job. The spouse, just like anyone else changing to H1B, will be subject to any H1B cap. The spouse must meet all of the requirements of the H1B specialty occupation.
(Q) I am on H1B and I am going to have a baby. My husband is also on H1B. I would like to change my status to H-4; can I do this?
(A) Yes. You will need to file an application with the INS for the change of status from the H1B to the H4 status. You will need to establish that both you and your spouse are maintaining your current legal statuses for the INS to approve the change of status for you. It is safest not to quit working until the application is approved, though upon filing the H4 Petition for change of status a person is generally allowed to stop working.
(Q) My friend filed his H1B petition at the same time as me, but his petition was approved already; why wasn�t mine approved too?
(A) Each Service Center and each INS officer has a different caseload and each one takes a different amount of time to process cases. Unfortunately there is nothing a law firm can do to ensure that your case will be processed in the same amount of time as other cases.
(Q) I�m currently on H1B; can I start my own company?
(A) Generally the answer is yes, but there are legal issues as well as many practical issues of which one should be aware. A consultation with an attorney is a good idea.
(Q) I am here on an H1B visa, and it has expired. What should I do?
(A) If it is in fact just your visa stamp in your passport that has expired and not your H1B status itself, then there is no need for concern. You may find it helpful to see our article above [link to appropriate update] on the difference between the visa and status, in this August 18, 2000 MURTHYBULLETIN.
Your visa stamp is a travel document only. If the visa stamp in your passport expires, then you can renew it by either going through the U.S. Department of State or through a consulate abroad the next time you travel out of the country. Your legal status here in the U.S. depends generally upon the expiration date written on the I-94 card by the INS officer at the port of entry. As long as your I-94 card (either a cardboard one in your passport or an updated one at the bottom of your latest INS approval notice) is currently valid, and you are continuing to work for the sponsoring employer under the terms of the petition, then you are legally permitted to stay here, whether your visa stamp in the passport has expired or not. If you would like to renew your visa before you travel out of the country, you can get all of the information to do this through either <http://www.murthy.com/reissue.html>. If it is, in fact, your status (as indicated on the I-94) that has expired, you should contact an attorney immediately to discuss your options.
(Q) I�m on F-1 status. Am I subject to the H1B cap?
(A) Yes, you are subject to the cap. Any person on any status other than H1B is always subject to the H1B quota. If you file a timely petition to change your status from F-1 to H1B, you may be able to stay here in the U.S. until the start date of your eventual approval, even if the H1B quota is filled in the meantime. This information is based on INS Memos issued since 1998, along with a change to the regulations. If an H1B petition requesting a change of status is filed prior to the expiration of the F1 status (date of completing school or of finishing practical training, plus 60 day grace period), you can legally remain in the U.S. However, the person cannot work for the H1B sponsoring employer during the time from the expiration of the practical training authorization up to the validity date of the H1B approval. Therefore, you may not continue to work after your current work authorization (such as optional practical training) expires; but you may continue to live here legally while awaiting your H1B case decision.
(Q) I am on H1B and I am changing employers. I want to travel to my home country. Is it legal for me to leave?
(A) Yes, you may travel out of the country as long as you continue to work for the employer for whom you are currently approved to work when you return. It may cause some problems if your approval for the new company comes through while you are abroad and you enter on your current approval notice with the prior employer. This is because the expiration dates of the two may differ, and you would be admitted for the prior period of time instead of up to the expiration date of the new petition. The timing of your trip can complicate the situation. Although there have been several changes in the INS interpretation that affect those who travel while a petition is pending, the safest option is to avoid travel unless the timing issues are discussed with an attorney. We suggest you contact an attorney for specific advice.
(Q) I was on H1B and my spouse was on H-4, but no one told us we had to apply separately to get her H4 status extended. She has been out of status for over 8 months. What can I do?
(A) Contact an attorney immediately. This is a very difficult situation, and you need assistance in developing a plan of action and understanding the risks and issues involved with each option.
There is a strong likelihood that the 3-year bar could apply against the spouse for failure to maintain lawful status. According to the INS, ignorance of the law is never a valid excuse.
This problem often occurs when the spouse would have applied for the visa stamp at the consulate for the first time, and entered the U.S. based on the visa stamp and the I-94 card issued by the INS officer at the port of entry to coincide with the principal H1B holder�s approval notice date. At the time of filing the H1B extension, many people assume that all dependents are automatically included. This is not the case.
(Q) I was on H1B, and then changed status to F-1. I am now ready to work on H1B again. Do I have six years again?
(A) No. Your six-year limit on H1B will only reset itself if you leave the country for over one year. Changing your status within the U.S. is not a reason for the INS to reset the six-year time frame allowable for a person to remain in the U.S. on H1B status.
(Q) If I have an H1B visa stamp, which is valid in my passport, and I leave the country, can I come back and work for a different employer without having to go through the INS?
(A) No. You must have the new company�s H1B petition approved through the INS since each H1B Petition is employer specific. This applies to any company for which you might work, whether or not you have H1B status already. On the other hand, if your visa stamp has not expired in the passport but now you have a new H1B petition to work for another employer, you can, in most cases, use the old H1B visa stamp and show the H1B approval notice with the new employer to obtain a new I-94 card at the port of entry. The new I-94 card should have an expiration date that matches the expiration date on the new approval notice. If the INS officer makes a mistake and only gives the validity date on the I-94 until the date on the visa, you should insist that the officer indicate the correct date.
� Copyright Law Office of Sheela Murthy
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