Frequently Asked Questions About H-1B Visas

Whether you are applying for an H-1B visa, helping an employee to do so, or have already received an H-1B, here are answers to likely questions:

Question: How long will it take for the H-1B visa to be approved?

Answer: Processing times for the Form I-129, the first step in getting an H-1B visa, can be tracked at the USCIS website's "Processing Time Information" page. You will need the H-1B receipt number found on the Form I-797 notice from U.S. Citizenship and Immigration Services (USCIS). Typical processing times (as of early 2013) were around two months from the date the case was received by USCIS. However, how much additional time will be needed depends on where you are applying from. If coming from overseas, you will need to figure in time to schedule and attend an appointment at a U.S. consulate.

Question: Can we speed up the processing of the H-1B visa?

Answer: The sponsoring employer can file Form I-907 along with the I-129, which requests premium processing upon payment of a substantial filing fee. Once filed, USCIS guarantees an answer, whether it be an approval, request for additional evidence, or denial, within two weeks. Short of an outright emergency, you are unlikely to be able to ask either USCIS or the consulate to hurry up your visa procesing by any other means.

Question: My friend filed an H-1B visa petition the same time I did and his case was already approved. Why is mine taking so long?

Answer: Each USCIS Service Center and U.S. consulate has different processing times. How long your case takes to be approved can further depend on the type of employment or employer and the documentation presented with the case. If your employer or you fails to provide all the required documentation for approval, your case may be delayed.

Question: My H-1B visa was approved through my United States employer, but I am currently abroad. Do I have to enter the U.S. on the start date listed on my H-1B approval notice?

Answer: No, you can enter the U.S. any time on or after the start date on your H-1B approval notice, as long as you have obtained an H-1B visa stamp in your passport.

Question: How long can I stay in the U.S. on my H-1B visa?

Answer: It is possible to stay in the U.S. on an H-1B visa for up to six years total. The initial H-1B visa should be approved for three years and then you may be eligible for a three-year extension.

Question: Can someone stay beyond the six years allowed by an H-1B visa?

Answer: Yes, there are options for staying beyond six years in H-1B visa status. You are able to recapture any time you spent outside the U.S. while on an H-1B visa once you have been in the U.S. for six years. The employer can also file an immigrant visa (green card application) on your behalf or you can leave the U.S. for a year and then your six-year clock will restart. The exact possibilities depend on your specific case and should be reviewed with an attorney.

Question: Exactly when does the six years' time on my H-1B visa start?

Answer: The time on your H-1B visa starts the day you change visa status to H-1B, or if initially abroad, the first time you enter the U.S. using your H-1B visa stamp.

Question: How do I know when my H-1B visa is expiring?

Answer: The H-1B visa stamp in your passport contains your H-1B visa expiration date. If you are asking when you should leave the U.S., however, be sure to look at the white Form I-94 entry/exit card that was placed in your passport upon U.S. entry, which shows the date you last entered the U.S. and the date by which you must leave (unless you entered through Canada or Mexico).

Question: How soon before my H-1B status expires can my employer renew it?

Answer: You can renew your H-1B status six months before its expiration. Don't wait until the last minute.

Question: Can the foreign applicant pay the H-1B filing fees?

Answer: No, the employer must pay the H-1B filing fees, as the petitioner. It is illegal for the immigrant to pay his or her own H-1B filing fees.

Question: I have been laid off or terminated by my H-1B employer; am I out of status?

Answer: Yes, if you are no longer employed by the employer who petitioned for your H-1B visa, and are not being paid by that H-1B employer, you are out of status and accruing unlawful time in the United States. If possible, look for a new employer who can petition for your H-1B transfer. It may already be too late: Technically, you are unable to change status unless you are currently in status. However, if only a little time has gone by (ideally a few days), USCIS has the power to overlook this and grant a transfer to a new employer.

Question: My H-1B visa was approved, and I am in the United States. Do I have to travel to my home country to obtain my H-1B visa stamp?

Answer: No, in fact, you do not have to travel for H-1B visa stamping at all, until and unless you want to travel anyway. The visa stamp serves only one purpose: to gain entry into the United States. Therefore, if you weren't planning on leaving for some other purpose, you have no need of a return stamp. If you do need a stamp, the U.S. prefers that you go to your home country, but you you may be able to go to Mexico, Canada, or some other third country for H-1B visa stamping. Contact the consulate ahead of time to make sure it offers this service. If it does, be sure to bring your I-94 form, original I-797 approval notice, and a current letter from your employer confirming your continuing employment there.

Question: How many times can I transfer my H-1B visa status to a new employer?

Answer: You can change H-1B employers as many times as you would like. There is no limit.