Because of the annual limit on the number of H-1B petitions that can be approved, an employer often must petition six months in advance of the date the employee is to start work. That should, in theory, leave plenty of time for USCIS to approve or reject the petition, so that the employee knows whether they can get an H-1B visa or get into H-1B status in the U.S. before the job begins.
Nonetheless, USCIS sometimes takes more than six months to adjudicate H-1B petitions, even in the best of times. The bottom line is that timing can become critical, as further discussed below. We'll focus on:
Employers willing to pay an additional amount can get "premium processing" of the I-129 petition. (That amount went up to $2,805 on February 26, 2024). Paying for premium processing service guarantees a USCIS decision within 15 calendar days of filing, or within 15 days of a response to a Request for Evidence (RFE), if USCIS issues one. (See 8 C.F.R. § 106.4.)
USCIS delays can virtually force employers to pay the extra fee for premium processing when it's available, particularly if the employee does not have any other authorization to start working on October 1.
But some H-1B petitions are not subject to the annual limit, in which case you might not need premium processing or be concerned about when USCIS will approve the petition.
For planning purposes, the key will be to learn to monitor your application while it's being processed by USCIS. Next, we'll explain how to do that, including getting your receipt number and finding out USCIS's average processing times in your category.
In an H-1B case without premium processing, after your employer has submitted Form I-129, USCIS will, normally within approximately two weeks, send a receipt notice on Form I-797. The receipt notice will contain your name (listed as the beneficiary), your employer's name (listed as the petitioner), and the address of the Service Center that has the petition.
If your employer retained an attorney, the attorney's name and address will be listed on the receipt notice, as well. If your employer filed without an attorney, the receipt notice will list the employer's address. (Be sure to review these details for correct information as well as spelling.)
In the top left-hand corner of the receipt notice is the case receipt number, which confirms the processing of the case as well as allowing you to track it through USCIS Case Status Online. For example, your receipt number might read something like this: EAC2209636548.
Once you have checked your current case status, you can get a sense of how it will progress by using the USCIS Processing Times Information website.
You will need to know the USCIS office where the form is being reviewed. Find this on the receipt notice mailed to the employer after USCIS accepted your case for processing. On the processing times web page, first select "I-129," then under "Form Category," select H-1B, and from the Field Office or Service Center dropdown menu, select the service center handling your petition.
How will you know which USCIS service center to select? The I-797 Receipt Notice name it at the bottom of the receipt. Be aware that sometimes USCIS transfers files among service centers to allocate resources. If that happens to your petition, your employer will get a notice saying which service center will handle the case.
Then click "Get processing time," and you'll be given an average. For example, it might say "2.5 months," which means USCIS will review most petitions within that time. There also is a section on "When can I ask about my case," which is explained below, for when your petition is beyond the processing time range.
The information you get from the processing times website is USCIS's best guess based on its most recent data. It's not exact, and you can't rely on it to be 100% accurate.
But if your case is outside of the estimated processing time, the employer can call USCIS at 800-375-5283 or use the link on the processing times page to place a service request. USCIS will then provide a confirmation number as well as a new estimated time of processing, typically 30 to 60 more days.
Of course, if your employer paid for premium processing, there is a guarantee of a decision within 15 days, so you should be able to rely on that. If it is taking longer, your employer might have received a Request for Evidence that needs to be responded to before USCIS can make a decision. But even so, USCIS should make a decision within 15 days after receiving your employer's response to the request.
As mentioned above, you might be applying under the H-1B cap—that is, an annual limit of 65,000 on the number of H-1B petitions approved. USCIS allows "cap" petitions to be filed six months before the start of the "fiscal year," which begins on October 1. H-1B "cap" workers can't get their H-1B status, and start their job, until October 1 at the soonest.
So many people want H-1B status in most years that there's a lottery just to be selected to apply. After several years in the planning, USCIS began implementing a new, pre-filing registration system in 2020. To get into the lottery, employers must submit an online pre-registration during a designated period USCIS announces, normally in March.
The new procedure involves a $10 per-case filing fee for the online registration. Duplicate registrations for the same employee are prohibited. If USCIS receives more than 85,000 registrations (as it almost always does), it will conduct a random lottery and notify "winners" soon after the pre-registration ends.
Employers whose petitions USCIS selected then be given a filing window in which to prepare and submit their petitions to USCIS. This typically starts in April and lasts 90 days.
]]>I have been working in the U.S. on an H-1B for one year now. I want to create an Internet start-up company with my cousin back home in India. All my work would be online; I wouldn't need to move back to India. None of our clients would be in the United States. I could do this part-time (mainly on weekends) and there would be no conflict with my current employer. I know I'm not supposed to work in the U.S. without specific authorization, but this wouldn't be the same, would it? Would I get in trouble with immigration?
Although your current H-1B petition and status would not authorize you to do the type of work you envision for an overseas company while being physically present in the United States, you could explore a concurrent H-1B petition for part-time employment.
Remember: As an H-1B visa-holder, you are allowed to work in the U.S. only for employers who have filed an I-129, Petition for a Nonimmigrant Worker with U.S. Citizenship and Immigration Services (USCIS) on your behalf.
Of course, if you are working for yourself in India, you might argue that you are not even working for a U.S. employer. The problem is that the definition of "work" (or employment) "in the U.S." for purposes of U.S. immigration law is somewhat ambiguous: The term "employment" means "any service or labor performed by an employee for an employer within the United States," and the term "employer" means a person or entity "who engages the services or labor of an employee to be performed in the United States." (See the U.S. Code of Federal Regulations, at 8 C.F.R. § 274a.1.)
You might expect that the main concern of the U.S. government, when it comes to regulating the employment of foreigners, would be with limiting their access to U.S. employers—including any foreign company with a subsidiary, branch office, or agent in the United States. (Much of immigration law is, after all, directed at protecting opportunities for U.S. workers.)
However, U.S. immigration agencies have interpreted their powers broadly and, as a result, most immigration lawyers would probably tell you that "employment in the U.S." includes any work performed by any person present in the U.S., regardless of the person's citizenship and regardless of the location of the company (or the company's clients).
If "employment in the U.S." includes any work performed by any person present in the U.S., this means that you should not work for your Indian-based company without first either filing a new H-1B petition for concurrent part-time employment with the company, or abandoning your current H-1B employment and changing your nonimmigrant status to L-1 (Intracompany Transferee), or obtaining a green card. (The first option would be the most convenient in most regards; unfortunately, it might not be the easiest.)
If none of these three options seems achievable within a reasonable time, you would need either to choose between your current H-1B employment and your Indian company, or to prepare a very sophisticated legal defense strategy.
Under any scenario, you might want to secure the assistance of an experienced immigration attorney.
A final note: Don't forget that at tax time, you'll be required to report your entire income to the IRS, from sources both inside and outside the United States.
]]>It is only natural that you would want to know whether you can plan for a future in the United States if the company hires you. But, petitioning for a foreign national employee's green card can be expensive and time-consuming for a company. If you do not have a strong negotiating stance in your talks with the employer, bringing up this topic could sour negotiations.
The costs and benefits of initiating such a conversation depend on the overall conditions surrounding your negotiations with the employer. This article will describe what to take into account in determining how or whether to bring up the topic at all.
Your potential employer might be more receptive to negotiating the topic of future green card sponsorship if you are particularly advanced or accomplished in your field.
Many people searching for H-1B employment sponsors are students or recent graduates from U.S. undergraduate or graduate education programs. If you have little previous employment experience, and do not have a previous relationship with the company you are applying to, it could be risky to ask about long-term green card sponsorship during the interview process. The company does not know your work product, and might be hesitant to make a long-term financial commitment under uncertain conditions. The negotiations could get sticky, and the company might consider other candidates if the interviewer feels you are asking for benefits too far outside of your negotiating power.
If you're a student, you might have already received temporary employment authorization and secured an employer pursuant to the Optional Practical Training (OPT) program. During your OPT employment, you could discuss with your employer the possibility of applying for H-1B status to continue employment after your OPT authorization expires. Because the company knows your work product and the value that you bring, it might be more receptive to questions regarding possible future green card sponsorship along with your transfer to H-1B status.
Or, perhaps you're searching for an H-1B employment sponsor as an established professional who wants to transfer your H-1B status to a different employer. In this case, you might not have a previous relationship with the company to which you are applying, but you likely have years of experience in the field. If you can demonstrate a solid track record of accomplishments, then you could be in a strong enough position to ask about future green card sponsorship.
If you have already been working with a company for some time, did not negotiate green card sponsorship when you were hired, and want to bring up sponsorship mid-employment, there is little risk in requesting sponsorship at this stage. You are, however, also in a relatively weak negotiating position. The company can simply decline your request. However, if you have made significant contributions to your company, or are willing to seek to transfer your H-1B to a new sponsor if your company declines your request, you might be able to negotiate sponsorship with your current employer or a new employer. You should strive to demonstrate that the value you have brought and will bring to the company in the future is greater than the cost and hassle of green card sponsorship.
The process to petition for a green card is complicated and costly, and takes months to complete. Companies that have more financial and human resources to dedicate to employee retention might be more amenable to sponsoring H-1B employees for a green card than others.
Petitioning for a green card can cost a company anywhere between $6,000 and $15,000, depending on the type of immigrant petition the employer files and whether it will cover the costs for members of your family, as well. And even with the assistance of an immigration attorney, filing an immigrant petition can require significant time and attention from the employer in order to perform the required recruitment to test the labor market, for instance by posting newspaper advertisements and interviewing candidates.
Less established companies with small profit margins might not have the financial resources to dedicate to green card sponsorship, even if you bring great value as an employee. Larger companies with considerable financial reserves, by contrast, might consider the cost of green card sponsorship to be a minor expense in their budget.
Companies' human capital can be a determining factor as well. If the company is thinly staffed, the extra workload that an immigrant petition will bring might be more difficult to accommodate.
If you're interviewing for an H-1B position, and have decided that you have a strong enough negotiating stance to ask about future green card sponsorship, it would be wise to wait until the final stages of the interviewing process to mention it.
If you bring up green card sponsorship in your first interview, it might seem like you are more interested in your own immigration benefits than you are in working for the company. Once the company has made you a written offer of employment, you should review the offer, and if future green card sponsorship is not mentioned, request that the possibility be added to the employment offer or contract.
If you have already had H-1B status for some time and are seeking to transfer your H-1B to a new employer, also consider whether you are nearing the end of your H-1B validity. H-1B status is valid for three years, and is ordinarily renewable only once, for a total of six years. In order to stay continuously in the United States at the end of your H-1B status, you need to have either secured permanent resident status (a green card) or meet the requirements for a "seventh year extension."
A seventh year extension is available to people who have started the immigrant petition process, but are subject to country-specific backlogs and will not be immediately eligible to apply for a green card. Those who fall into this category must initiate the immigrant petition process by one year (365 days) before the H-1B status expires. Significant preparation is often required to start the immigrant petition process.
Based on these factors, you should begin to discuss applying for a green card with your employer about two years before your H-1B status expires.
]]>In particular, you might discover that USCIS considers you to have abandoned your pending application, in which case you could be blocked from reentering the country. Here's what to know before embarking on a trip outside of the U.S., so as to ensure that your travel doesn't cause adverse problems with your immigration status.
Let's start with the basics, which apply to anyone currently holding H-1B status and/or a visa. If you are in the U.S. in H-1B status and have a valid visa in your passport, you are permitted to travel outside of the U.S. and return to the United States as long as you reenter prior to your visa's expiration date.
All H-1B visa holders should carry the following:
By presenting these upon reentry, you should have minimal trouble returning to the U.S. in H-1B status.
Note that Canadians in H-1B status are visa exempt, so they may travel and reenter the U.S. in H-1B status as long as they maintain their status validity. They don't need a visa in their passport. However, H-1B Canadians will want to carry their most recent I-797 approval notice, valid passport, and two recent pay stubs and/or employment verification letter from their employer.
International travel while your H-1B extension is pending at USCIS is permitted if you have an unexpired visa, but be aware of a few points before taking your trip.
First, you must be present in the U.S. at the time your employer files your extension petition. If you have a pending extension petition, and you travel outside the U.S. and return prior to your status and visa expiration dates, be sure to carry the documents noted above. However, if you use your previous approval notice, upon reentry, your I-94 will be valid only until your current expiration date (until and unless your extension is approved).
If USCIS approves your extension while you are abroad, you will need to reenter the U.S. with your new I-797 approval notice. This might mean that you'll need to have your approval notice sent to you while you are abroad so that you can present it when you reenter the United States. Also, if your visa expires while you are abroad, you will need to visit a U.S. consulate or embassy to obtain a new one prior to returning to the United States. In either case, be proactive and show the U.S. immigration officer your visa and your I-797 Approval Notice. Do not expect the officer to ask for the I-797 Approval Notice.
If you have a pending H-1B extension, but your I-94 is expired, you are allowed to remain and work in the U.S. while your extension is pending, up to 240 days past your expiration date. However, if you travel outside of the U.S. after your I-94, and thus your H-1B status, is expired, you will not be able to reenter the U.S. in H-1B status until your extension is approved and you obtain your I-797 approval notice. This could cause you to spend more time away from your U.S. job than you originally planned, which could cause issues with your place of employment. This is why traveling internationally with a pending H-1B extension application and expired I-94 is typically not a good idea.
International travel while you wait for USCIS to approve an H-1B transfer petition from one employer to another is allowed, but you’ll want to plan carefully.
If you are still employed with your "old" employer and have valid H-1B status and a valid visa, you may utilize these for your international trip. However, if you are no longer working for your previous employer, you may not enter the U.S. until a new employer files an H-1B petition for you and you have at least a copy of the I-797 Receipt Notice to show that the new employer’s petition is pending—in this case, when you return to the United States, you can show the immigration officer the H-1B visa in your passport from your prior employer, the I-797 Receipt Notice for the new employer’s H-1B petition, and the offer letter for your new job.
The most conservative route is to secure approval of the new employer’s H-1B petition and then return to the United States either with a new visa or with a valid H-1B visa from a prior employer and the new employer’s I-797 Approval Notice.
So far, this article has discussed instances where the H-1B extension or transfer contained an application for extension of stay (in the United States). However, you might be in a position where your H-1B petition contains an application for change of status instead. This occurs when you change from one nonimmigrant status to another, such as from F-1 student to H-1B or from H-4 to H-1B.
This distinction is important because international travel while a change of status petition is pending operates to abandon the request for a change of status. If you travel outside of the U.S. while your change of status case is in progress, you no longer have a “status” that USCIS could change.
This does not mean, however, that the underlying H-1B petition will be denied. If your H-1B petition is approved, but the change of status is denied, you must obtain an H-1B visa from a U.S. consulate or embassy abroad before reentry. Similar to getting an approved extension while abroad, this could mean that your approval notice will need to be sent to you while you are overseas, as you might need it to get an H-1B visa.
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