H-1B Visa SUPER FAQ | Costs & Fees | Document Requirements

H-1B SUPER FAQ

The following is an FAQ of issues that have come up based on well over a decade of practice by our founding attorney.

Can I apply for an H-1B before I graduate and get my degree?

As long as the beneficiary has completed the necessary requirements to get the degree before the H-1b petition is filed, the beneficiary is considered to possess the qualification even without yet receiving the physical diploma. The H-1b can’t be approved if there is coursework pending at the time of filing.

Can I work part-time on H-1B?

Yes, it is possible. The LCA will carry a designation of “part-time employment” listing part-time hours. You can have more than one H-1b at the same time as well.

If I own the company, can I self-petitioning for an H-1B?

While it is impossible in PERM, it’s possible for a company owner to have that company file an H-1b petition for the owner, however, case law suggests that if there is a >50% ownership, it may defeat the employer-employee relationship which is necessary for H-1b petitions.

Can I get H-1B without a license if the job requires a license?

If the state allows you to essentially perform the duties of a licensed professional on the condition that you are supervised by a licensed professional, you can get an H1B in that profession. A typical example of this would be an unlicensed architect intern being supervised by a licensed architect working at the petitioning company.

In cases where you can’t get a license because you are abroad, you have to show that you are eligible to take a test for licensing. If applying for an H-1B as a physical therapist (PT) you need a state license. Because state license exams are given in the United States, the PT must complete all steps required for licensing except taking the actual licensing test and, in many states, may be eligible for a temporary license. Consulates will issue a visa if an applicant has a temporary license. These visas are issued on the assumption that the applicant will be coming to the US for further licensing examinations and/or for the issuance of a Social Security number. Some state regulating agencies may also issue an Authority to Test letter, which the applicant must present at the consulate. The Authority to Test letter usually states that, other than the state license, the applicant is qualified for the visa and will be entering the US on the assumption he will be taking the physical therapy licensure exam. Another option is for the physical therapist to enter the United States on an H-1B for a physical therapy intern in order to obtain a Social Security number and then take the state-licensing exam.

Physical therapists who are in H-1B status may encounter problems if he or she decides to change to an employer who is in a different state. If the physical therapist does decide to change employers, she would have to obtain a valid license to practice in the state where her new employment is located or a letter of eligibility to obtain a State License once the H-1B visa is approved.

The VisaScreen certificate should be applied for as early as possible because it may take many months to complete. The VisaScreen certificate is required of all immigrant and nonimmigrant health care workers, including: nurses, occupational therapists, physical therapists, physician assistants, speech language pathologists and audiologists, medical technologists and medical technicians. The VisaScreen certificate is evidence that the foreign worker’s education, training, English language ability and experience is equivalent to that of a U.S. worker and that the foreign license held by the applicant is current and valid. In countries where English is the primary language, the English language proficiency requirement is not required. These countries include: Ireland, New Zealand, Canada (excluding Quebec), United Kingdom, United States and Australia.

Physical therapists can get their VisaScreen certificates from one of two credential agencies, the Commission on Graduates of Foreign Nursing Schools (CGFNS) and the Foreign Credentialing Commission on Physical Therapy (FCCPT). CGFNS provides the VisaScreen certificate for all seven of the listed health care professions. “VisaScreen” is the term given to the §343 certificate by the CGFNS and is trademarked, which is relevant because the term “VisaScreen” is not mentioned anywhere on the certificate. Other credentialing agencies may not call the certificate “VisaScreen”. CGFNS is unique in its credentialing than other agencies because CGFNS requires all applicants to provide a summary of his or her supervised clinical experience, which should be self-reported and typewritten. Once an applicant receives a VisaScreen certificate, it is valid for five years.

The FCCPT is similar to the CGFNS, but is authorized to issue VisaScreen certificate to physical therapists only, which may result in a quicker process than CGFNS. There are three types of FCCPT certificates: Type I Certificate, Type II Certificate and the Educational Credentials Review. The Type I Certificate is mainly used for applicants who have never been licensed to practice in the United States. It combines the applicant’s educational credentials review and covers the requirements for the VisaScreen certificate. The Type II Certificate is mainly used for applicants who are currently licensed to practice in the United States and require the VisaScreen certificate for immigrant and nonimmigrant processing. This certificate is mainly about the verification of education, verification of current licensure and the ability to demonstrate English language proficiency. The Educational Credentials Review is a certificate that is used mainly for licensure and concentrates on the evaluation of the applicant’s educational credentials by doing a course-by-course review of the applicant’s school transcripts.

Every state has slightly different requirements for the licensing of physical therapists. All 50 states allow applicants to obtain a license to practice through an examination and some even allow applicants to receive a license through the endorsement process – the state will accept the applicant’s license that is valid from another state – as proof of their credentials to practice as a physical therapist.

To recap, a physical therapist needs i) the requisite education (some states accept a bachelor’s degree, but others require a masters)

How do you determine cap-exemption based on being a non-profit affiliated with an institute of higher education?

As per 8 CFR 214.2(h)(19)(iii)(B) there are 4 ways to prove whether you are a “non-profit affiliated with a institute of higher education, thus exempt from the H1B cap.”

• That the affiliation between the non-profit organization and the institute of higher education is based on shared ownership or control by the same board/federation,
• That the affiliation between the non-profit organization and the institute of higher education is based on having the institute operate the non-profit,
• That the non-profit organization is attached to the institute of higher education as a “member, branch, cooperative, or subsidiary.” OR
• That the non-profit organization and institution of higher education operates a training/certification program in a collaboration involving a close relationship, managed jointly by the non-profit and institution. In other words if the Petitioner operates a program that is attached to a college, it should qualify the provide cap exemption for individuals employed in such a program. Again, such an exemption is *limited* to the employees of the petitioner directly involved in the jointly managed program that directly and predominantly furthers the essential purposes of the institution of higher education.

May I file an H-1B transfer before I start on October 1st?

If you have an approved H-1b that will begin in the future on October 1, another company may file a transfer petition. You just need confirmation of your H-1b approval. No pay-stubs needed. This transfer can be done whether you’re in the US or outside.

How does cap gap protection for those on F-1 and J-1?

Filing on April 1 for H-1b status that can only be approved as early as October 1, is a problem for those in the US seeking to change status from their current nonimmigrant visa. If a person’s status will expire before H-1b status can be granted, then they will not be able to change status to H-1b, unless they are present on F-1 or J-1 status since their status is “d/s,” which is normally 60 (F-1) and 30 (J-1) days grace period beyond completion of studies. An F-1 student on OPT will have their work authorization extended as necessary as well. A student who is eligible for the cap-gap extension must work with a designated school official (DSO) at the student’s school to receive an updated Form I-20. If a student is eligible for the cap-gap extension of OPT, the student can continue to work while the update to his or her Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization. To assist a student in obtaining an updated Form I-20, the employer may need to provide the student with an I-797 receipt or approval notice issued by USCIS for the H-1B petition filed on the student’s behalf. This receipt notice serves as proof of filing the H-1B petition and may need to be submitted to SEVP in order to update a student’s Form I-20 to show eligibility for the cap-gap extension.

When does the OPT grace period count if my H-1B cap case is denied?

If a person on a cap gap extension has their H1B denied or rejected, their 60 days of grace period to file a COS/EOS or otherwise stay in the US begins on the date of denial/rejection or the date their OPT expires, whichever is later.

What happens if I am benched without pay on H-1B?

The employer must pay the petition-stated wage on the date of entering employment (meaning when the worker makes themselves available for work) and EVEN IF the worker hasn’t “entered employment” then within 30 days of the employee’s entry or 60 days from the employee’s change of status if the employee is in the US. It must be at least 100% of the prevailing wage. Benching an employee due to a lack of work, reducing salary below prevailing wage, is not allowed. If an employer is no longer employing the beneficiary, “bona fide termination” of the employment relationship is triggered only if it sends a letter to the USCIS director who approved the petition to revoke the I-129, and pay to send the beneficiary (but not his H-4 dependents) back home. If this is not done, the employment relationship is still intact and the employer will be liable for back-pay. Mere notice of termination without sending a letter to USCIS to cancel the I-129 and paying to send the employee back =/= termination. See 20 C.F.R. §655.731(c)(7)(ii).

When may I be unpaid on H-1B status?

If the H-1b worker is non-productive due to conditions unrelated to the employer, for example, the worker wants to take a leave to tour the US, care for an ill relative, etc, or if the worker is rendered unable to work, for example, maternity leave, physical injury, etc, then the employer is not obligated to pay the employee during that time off (unless there is a benefit plan/statute to provide wages even on such leave, i.e. ADA, Family & Medical Leave Act) and the H-1b status also remains intact.

How can I renew my H-1B visa stamp, and can I renew it in the US?

As long as the H-1b visa hasn’t expired, you can leave and return, even if you transferred to a new H-1b employer. However, if the visa on your H-1b has expired, and you leave the US, you will have to get a visa stamp. You can get a re-stamping as a TCN in Mexico or Canada. For this, your most recent visa must be an H-1b however, so, if you entered as and F-1, then C/S to H-1b, you can’t get an H-1b stamp on your passport as a TCN. Bring valid passport, approval notice, I-129, offer letter, resume, degrees, and experience letters if any, and apply at the consulate. Generally, you can’t renew it in the US although there is a pilot program that may allow it for some.

When do I need to file a new LCA or amendment on H-1B?

There’s no provision about it, but you must file a new LCA if there is a material change, such as a change in occupational classification by material changes in duties, or a pay cut, or a change in hours (ie going from F/T to P/T, or vice versa).

It’s unclear whether mere relocating to a place not noted in the current LCA requires more than just a new LCA, as noted “as long as the LCA has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligations are met (I-129 does not need to be filed) Hernandez AILA Infonet Doc. 03112118.” A new LCA isn’t necessary in situations such as corporate restructuring, even if the FEIN changes, and moving within the same area of employment (“MSA,” metropolitan statistical area). If you must file a new LCA on material changes, also file an I-129 amendment.

How does corporate restructuring impact my H-1B status?

“An amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.” (See INA § 214 (c)(10)). So, generally, if the job duties still remain the same and there are no material changes in other terms of the employment of the individual, a successor-in-interest does not have the file a new H-1b petition. Successor-in-interest would be an entity that takes the interests and obligations of the original petitioning employer.

Note that 20 CFR 655.730(e)(1) states: “Where an employer corporation changes its corporate structure as the result of an acquisition, merger, spin-off, or OTHER SUCH ACTION, the new employing entity is not required to file new LCAs and H-1B petitions with respect to the H-1B nonimmigrants transferred to the employ of the new employing entity (regardless of whether there is a change in the FEIN), provided that [new entity maintains certain records/affidavit in Public Access File].”

However, in 20 CFR 655.730(e)(2), the regulations clarify: “Notwithstanding the provisions of paragraph (e)(1) of this section, the new employing entity must file new LCA(s) and H-1B petition(s) when it hires any new H-1B nonimmigrants(s) or seeks extension(s) of H-1B status for existing H-1B nonimmigrant(s). In other words, the new employing entity may not utilize the predecessor entity’s LCA(s) to support the hiring or extension of any H-1B non-immigrant after the change in corporate structure.”

Further, the June 7, 2001 Efren Hernandez Memo states: Where the “second company assumes substantially all of the assets and liabilities (meaning IMMIGRATION-RELATED liabilities only) of the first company, amended petitions are not required.” He also adds that “if the only change, when viewed from the alien worker’s perspective, is the name of the employer, then no amended filing is required.”

Still, an LCA affidavit may be required to be added to the PAF, as per 20 CFR 655.730(e):

“[T]he new employing entity is not required to file new LCAs and H1B petitions … (regardless of whether there is a change in the …(EIN)), provided that the new employing entity maintains in its records a list of the H1B nonimmigrants transferred to… the new employing entity, and maintains in the public access file(s)… a document containing all of the following:

(i) Each affected LCA number and its date of certification;

(ii) A description of the new employing entity’s actual wage system applicable to H1B nonimmigrant(s) who become employees of the new employing entity;

(iii) The employer identification number (EIN) of the new employing entity (whether or not different from that of the predecessor entity) and;

(iv) A sworn statement by an authorized representative of the new employing entity expressly acknowledging such entity’s assumption of all obligations, liabilities and undertakings arising from or under attestations made in each certified and still effective LCA filed by the predecessor entity. Unless such statement is executed and made available in accordance with this paragraph, the new employing entity shall not employ any of the predecessor entity’s H1B nonimmigrants without filing new LCAs and petitions for such nonimmigrants. The new employing entity’s statement shall include such entity’s explicit agreement to:

(A) Abide by the DOL’s H1B regulations applicable to the LCAs;

(B) Maintain a copy of the statement in the public access file… and

(C) Make the document available to any member of the public or the Department

upon request.”

When may I file H1B extensions and amendments?

You may only file an H1B extension up to 180 days in advance of expiration, however, if you file an amended petition, you may request an extension even if there are more than 180 days left before the current H1B status expires.

How may extraordinary circumstances allow me to file an H-1B extension after going out of status?

If paystubs are not available, you can cite 8 CFR 214.1(c)(4) Extensions of status: Timely filing and maintenance of status, which provides:

“An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant; and

(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.”

Argue that the employer failed to pay and illegally benched the employee, and that the expectation of returning and threat of immediate termination kept the employee from seeking back-wages. Thus, the delay was due to extraordinary circumstances beyond the alien’s control. If there was “bona fide terminated” as in the employer notified USCIS to revoke, the alien should show that it filed a complaint seeking back wages, and also cite language from the May 30’ 08 extraordinary circumstances memo.

As evidence, the alien may file a complaint to the DOL (1-year statute of limitations) via form “WH-4” alleging LCA violations, and include it in a transfer petition in lieu of paystubs.

Case law supports this argument as well:

“An employee may not be considered properly terminated for purposes of cutting off backpay and frontpay unless the employer follows 20 C.F.R. §655.731(c)(7)(ii) and notifies USCIS that the employment relationship has been terminated so that the I-129 petition is canceled and provides the employee with payment for transportation home. Matter of Rung, supra.; «Amtel Group of Florida, Inc. v. Yongmahapakorn, 04-LCA-87 (OALJ Sept. 29, 2006), 2006 WL 2821406» [where employer notified employee but never notified USCIS of termination of H-1B it remained valid until the end of the LCA period and the former employee was able to collect back pay and interest].”

If USCIS disagrees, while they may deny the extension, they can still approve the petition, and allow for consular notification. In such a case, any valid H-1b visa will be voided by operation of law under 222(g) (aliens present in the US while being out of status), so you will have to get a stamping in your home country. 222(g) eliminates the chance to revalidate to renew your visa, see 9 FAM 40.68 Ex1 for 222(g) secnarios.

How may I transfer H-1b employment when employee I have no paystubs?

If you are not willing to confront your prior employer to at least get 3 months of paystubs in exchange for not reporting them to the DOL, and you have a valid H-1b visa, it would be better to file for consular notification. Although you can start working for the new employer because you meet porting requirements, you would have to stop working and leave immediately upon the petition approval, then return to the US at a port of entry on the still valid visa along with the new approval notice.

In the alternative, if you try for an extension, and USCIS asks for pay stubs and you fail to show them, you can cite 8 CFR 214.1(c)(4), extraordinary circumstances as to filing post-termination, and request USCIS to forgive late filing. 30 days w/o paystubs is usually accepted, but USCIS can declare that you’re out of status, triggering 222(g), and you’ll be required to get a new visa in your home country, and Canada/Mexico won’t process it.

Finally, if you don’t have a visa (ie, you entered on F-1 then did COS to H-1b), then you may as well file an extension. If USCIS asks for more current paystubs, and you have none, cite 8 CFR 214.1(c)(4), extraordinary circumstances with proof you maintained status (emails, etc). USCIS can decline to grant the extension, but you may still go back home for stamping.

May I switch from cap-exempt to cap subject H-1B employer?

If a person started their H-1b status with a cap exempt employer, they are free to port (transfer) to a cap-subject employer, BUT there has to be cap numbers available to port to the cap-subject employer since the employee was never counted to the cap previously. The start date would generally be October 1 on the I-129 (at the earliest, the first day quota H-1Bs are issued), but the employee can immediately transfer upon filing the petition, before October 1 w/ a valid LCA. The Efren Hernandez letter/memo has more details.

How does the last action rule with respect to H-1B approvals work?

Note that the last action USCIS takes governs the alien’s status. Therefore, if, for example, an H-1b holder is facing termination, and files an H-4 change of status, but later finds an employer and files an H-1b transfer, and the H-1b gets approved before the H-4, then the alien is in H-4 status. If you try to revoke the H-4, what happens is you create a lapse of unlawful presence (ULP) from the time your original H-1b terminated to the time the subsequent H-1b petition was filed. The only way to go back to H-1b is to file another petition.

Can I return to a previous H-1B employer without filing a transfer?

You can go back to any H-1b employer if the validity period (see the approval notice and I-94) still remains good. This also means that even if an H-1b transfer was successful, you can stay with your current employer and not transfer. However, if an H-1b employer has revoked the I-129, you can’t go back to them freely, and they will have to apply for an H-1b transfer to get you back. Note that you can have multiple H-1bs in place, and they are all valid as long they haven’t been revoked and you’re working for an H-1b employer. If you seek to work for more than one employer at the same time, you need to have filed for “concurrent” employment.

Can I file an H-1B transfer or “bridge petition” when my I-94 expires?

According to page 11 of the May 12, 2005 Yates Memo discussing portability, a portability transfer (change of employer) petition can be filed, even if you’re in a period of stay authorized by the attorney general (POSABAG). If you file actually do change employers, and file a successive transfer, you create a bridge, and in that situation, for any successive petition to be approved, the preceding petition must be approved.

So, if you’re with company A, then company B files a transfer petition, and you’re working for company B while that transfer is pending, another company (company C) may still file a transfer petition from company B (provide pay-stubs from company B), BUT if the pending petition with company B is denied, you can’t continue with company C, even if their petition is approved because the bridge between A to C is broken. See: Cook/Podolny “bridging” (~2002) memo.

What can I do while an H1B transfer to a new employer is pending?

While a transfer petition is pending, you may start working for that new employer. You may also leave the country, and return pursuant to AC21 visa portability rules, with the following conditions met when trying to reenter: i) you possess a valid unexpired visa from the previous employer, ii) your H-1b I-94 must be currently valid or not have been expired for more than 10 days, and iii) proof that you filed a timely new petition (an I-797 receipt notice for the pending petition).

May I work on H-1B after my I-94 expires while the transfer is pending, and I am in a POSABAG (period of stay authorized by the attorney general)?

You are eligible to continue working while the H1b extension is pending. Should your H1b status expire while your extension is still pending, 8 CFR 274a.12(b)(20) allows you to continue working for up to 240 days beyond the expiration date.

Can I use my H-1B visa stamp for other employers?

If the H1B employee has an unexpired H1B visa stamp in the passport with a prior employer, that visa remains valid until its expiration date for use at the time of reentry from abroad to work with a new H1B employer. Of course, the new H1B employer has to obtain a new H1B petition approval for that employee to work at its work location/s. Even though the visa stamp will contain the name of the prior H1B employer, it may be used at the time of entering the United States with the H1B petition approval of the subsequent H1B employer / sponsor, as long as the H1B employee is eligible for entry in H1B status. The important thing to remember here is to request that the POE Inspector stamp the I-94 card valid until the date of the H1B approval notice with the present employer and not the earlier visa validity date stamped in the passport with the earlier employer. To avoid this problem altogether, some H1B employees prefer to obtain a new H1B visa stamp from a U.S. consulate. This new visa stamp carries a notation with the name of the new employer and a new validity date.

How does my time on L-1 status count against H-1B?

Your time on L-1 status counts toward time on H-1B status and vice versa. There is a 6-year time limit on H-1b, 5-year time limit on L-1B, and 7-year time limit on L-1A.

How do I work on H-1B beyond the 6-year time limit?

Normally, if you hold H-1b for a 6-year period (being on H-4 doesn’t count toward this), you must leave the country for 1 year before you can go have an employer file a new H-1b case under the quota again. However, if 365 days have passed since the alien’s labor certification or I-140 was filed, then the alien may apply to extend its H-1b beyond the 6 year limit by 1-year increments (AC21 106(a)). If an I-140 is approved, the alien may extend its H-1b beyond the 6-year limit by 3-year increments (AC21 104(c)). Also note that you needn’t be in H-1b status if you request an additional period of stay beyond the 6 years.

Note that you can apply for the 1-year extension before 365 pass from the date the labor cert/I-140 was filed, just as long as 365 days WILL pass before the 6-year limit is met (see the December 5, 2006 Aytes Memo, saying you need not be in H1B status to request the 7^th year extension). If the 6^th year will be met before 365 days pass from the date the labor cert/I-140 was filed, then the alien will have to leave the country/change status, and wait until such time passes before going back on H-1b to get the 7^th year extension, unless it can get an I-140 approved before the 6^th year limit is met (in this case, you may apply for a 3-year extension, see also #16, premium processing on I-140). NOTE: An L1A person who used up 6+ years and has an I-140 approval reportedly can’t file a cap case and get it as a 7^th year extension.

If I was on H-1B before, can you go back on unused “remainder time” and avoid the H-1B cap lottery?

If you leave the US or change status, and haven’t exhausted your time on H-1b (i.e. you stayed in H-1b status for 4 years), a new company can file an H-1b for to bring you back without having you be counted toward the cap. You can request your H-1b for as much time as you have remaining, up to 3 years. To get a fresh 6 years, you must leave the US for more than 1 year before the new petition is filed and apply to be counted under the cap again and get a fresh 6 years. NOTE: In cases where you only have an H1B approval, and never entered the US on H1B status, pursuant INA 214(g)(7), if you had the approval within the past 6 years, you can apply for H1B and not have to be counted toward the cap since they’ve been counted upon H1B approval, despite USCIS saying (in a Jan 10, 2000 memo) only when status is granted is someone to be counted.

May I travel while my H-1B extension and/or transfer is pending?

If you travel after a change of status (COS) is filed, the COS is abandoned, and you must go for CP.

If you are away and try a COS, the COS will be rejected, and you must go for CP.

If you are away and try an extension of status (EOS), the EOS will be rejected, and you must go for CP.

If you travel after an EOS, you are ok to return on the old visa without the EOS approval notice, but if the EOS is approved before you return, then the I-94 you most recently obtained governs, so it is best to wait until you get the approval notice before you return to the US.

May I travel after I file an H-4 EAD application?

You may travel if you are in valid H-4 status and meet all the admission requirements, including having a valid H-4 nonimmigrant visa. However, traveling outside of the United States could cause delays in your case. While you are outside of the United States, USCIS may need additional information to make a decision on your Form I-765 or we may issue a Notice of Intent to Deny (NOID) with an opportunity to respond. If you do not respond on time to a Request for Evidence (RFE) or to the NOID, USCIS may deny your case as abandoned. Additionally, travel outside of the United States may also cause possible delays if we need to reschedule your appointment at an Application Support Center.

However, if you file Form I-765 concurrently with Form I-539 requesting a change to H-4 status from a different nonimmigrant classification, we will deny your Form I-539 as abandoned if you travel abroad while your Form I-539 is pending. In this case, we would also deny your Form I-765.

If you choose to depart from the United States before your pending change of status application is approved, we will deny your Form I-539 and Form I-765, even if you are re-admitted as an H-4 nonimmigrant. In such cases, after being admitted into the United States as an H-4 nonimmigrant, you will need to a file a new Form I-765.

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