Here are some concerns on the mind of H-1B visa holders in the United States as specialty workers at U.S. companies or businesses.
Answer: It's possible to stay in the U.S. on an H-1B visa (or in H-1B status) for up to six years. The initial H-1B should be approved for three years. You might then be eligible for a three-year extension. If you spend less than six months each year in the U.S. in H-1B status, the six-year limit does not apply.
Answer: The time on your H-1B status starts the day you change to H-1B status while in the U.S., or, if you're initially abroad, when you first enter the U.S. using your H-1B visa stamp.
Answer: Yes, there are options for staying beyond six years. You can "recapture" any time you spend outside the U.S. during your six-year period. For example, if you spend a month each year outside the U.S. you can, after six years, recapture those six months to gain H-1B time. Or, if your employer pursues an immigrant visa (lawful permanent residence or a green card) on your behalf, you will become eligible for additional H-1B status once certain milestones are reached in the green card process. Additionally, if you spend one year outside the U.S., your six-year clock will restart.
Answer: The H-1B visa stamp in your passport shows an expiration date. If you're asking when your H-1B "status" expires (the period during which you may remain in the U.S.), however, look at your I-94 arrival/departure record. The I-94 shows the date you last entered the U.S. and the date by which you must either leave or file a request to extend status. An I-94 card was placed in your passport when you entered the U.S. if you arrived prior to May 2013. If you entered the U.S. after May 2013 (when Form I-94 was automated) by air or by sea, you might have not received a paper card but can access your I-94 on the U.S. Customs & Border Protection I-94 website. Also, the officer should have made a handwritten annotation in your passport for your visa class (H-1B) and date your status expires. A good practice is to check your I-94 expiration date before you leave the airport. If it does not match the handwritten date, or the date on an I-797 Approval Notice if you previously changed status, go back and ask to talk to a CBP officer to get it corrected on the spot.
Answer: Your employer can file a petition to renew your H-1B status six months before its expiration date. As long the petition gets filed before your current status expires, you may remain in the U.S. while the extension is pending. Your work authorization continues for up to 240 days, or until U.S. Citizenship and Immigration Services (USCIS) approves or denies the extension. But it's best to submit the extension request as early as possible.
Answer: You do not have to travel for H-1B visa stamping at all, until and unless you want to travel outside the U.S. and be able to return. 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 don't need the visa. If you do need a stamp, it's best to apply at the U.S. consulate in your home country. If you want to apply at some other U.S. consulate (in a so-called "third country"), review the protocol at that consulate to determine whether you may apply there.
Answer: Although it's always best to apply for your visa at the U.S. consulate in one's home country, in some cases you may apply in another country, where you would be considered a third-country national. Third-country visa processing is allowed in Canada, but there are several things to consider first.
If you're a citizen of India, you likely will need a visitor visa to enter Canada. Check with the Canadian consulate in the U.S. to review applicable visa requirements.
Also consider that, if you earned your university degree in a country other than the U.S. or Canada, the U.S. Consulate in Canada might not be able to determine whether you have the proper qualifications for an H-1B visa. While this is technically a question for U.S. Citizenship and Immigration Services as part of your employer's H-1B petition process, consular officials often inquire into and examine academic credentials to make sure the person has at least a bachelor's degree. The consular officers in Canada likely are familiar with only U.S. and Canadian education. Presenting a degree from an Indian university could be a problem.
Finally, be aware that you won't be able to return to the U.S. until you get a new visa. At your visa interview, the consular officer will put a stamp in your passport noting that you applied for a visa while in Canada. If your visa application then is delayed or denied, you won't be able to return to the United States—not even if you're renewing a visa that hasn't expired. Things that could cause a delay or denial are the educational credentials mentioned above, criminal charges or convictions, or security/background checks. If your visa is delayed, you'll need to wait in Canada until getting your new visa. If the consulate denies the visa, you might need to return to India to renew your visa at a U.S. consulate there. It might be easier just to get your visa in India.
Answer: You can change H-1B employers as many times as you'd like. You also can have concurrent H-1B employers, such as for two part-time jobs. (It's not easy, though. Each employer must get its own H-1B approval for you.) The only limitation is the six-year maximum period for H-1B status. The six years applies to you, not to your employers. For example, you can work for six different employers for one year each. You cannot work for Employer A for six years and then immediately for Employer B for six years.
One important thing to know when changing H-1B employers is whether your current employer’s H-1B petition was subject to the annual quota, which sometimes is called the H-1B cap. If you work for a so-called cap-exempt employer, such as a university, you likely have not been counted against the cap. If you want to change to a company that has no connection to a university, for example, you most likely will be subject to the cap and need to have the new employer enter you in the annual H-1B lottery. The lottery runs in March for jobs that will begin in October of the same year. Therefore, be sure to check into this before leaving your employer and finding out later that your next employer may not be able to hire you right away or perhaps at all.
Answer: There are two issues here. The first is the basic labor law requirement that employers must pay employees for services performed. You might wish to consult a plaintiff’s attorney to review your rights and options to receive your earned wages.
The second problem concerns your H-1B status. If your employer is not paying you, you won't have evidence with which to demonstrate that you've been maintaining lawful status. One option is for your next employer to request “consular notification” on its H-1B petition. Once USCIS has approved the H-1B petition, you will take the I-797 Approval Notice to the U.S. consulate or embassy abroad, preferably in your home country, to apply for an H-1B visa and then return to the United States. This should avoid questions about your maintenance of status. If you already have a valid H-1B visa, you'd still need to leave the U.S. and present your existing visa and the new I-797 Approval Notice upon return.
A trip to Canada or Mexico for less than 30 days may NOT be considered a “departure” for this purpose. It therefore might be necessary to travel to another country before returning.
If the consular notification option is not feasible, you still might be able to show maintenance of status through documentation. You could write to your employer, perhaps by email, to request payment of your wages, provided that you've been working and upholding your part of the employer-employee relationship. If the employer responds by stating that it refuses to pay you, you can use that statement, along with a personal statement from you, to explain why you do not have paycheck copies.
You also might wish to submit a complaint to the U.S. Department of Labor (“DOL”) on DOL Form WH-4. The DOL might open an investigation and contact you and your employer for more information. If the DOL determines that your employer has violated the law, it will require your employer to pay your back wages. Although the investigation could take several months, you can provide a copy of your complaint for the H-1B petition that your new employer is submitting, as further evidence of your efforts to maintain lawful H-1B status.
Finally, if you consult an attorney to help you recover your unpaid wages, the documentation you may provide to support the new employer’s H-1B petition may include an attorney demand letter to your current employer for payment of your wages or court records for a pending or resolved lawsuit.
Answer: Alcohol-related arrests can become complex with regard to immigration consequences. Consult an attorney to review the facts of your situation. To protect your confidentiality, find your own attorney, rather than the one who handled the H-1B petition (who likely represented both you and your employer and might tell your employer about the arrest).
At a minimum, the drunk-driving charge will cause delays in your visa application processing. Whenever there has been an alcohol-related conviction, such as Public Intoxication, Driving Under the Influence (DUI), or Operating a Vehicle under the Influence (OVI), U.S. State Department protocols require the consular officer to refer you (the visa applicant) to a "panel physician" (a local doctor).
The physician will exam you to determine whether you have an alcohol dependency problem. If the conviction was within a year, the physician will indicate that you have not shown sufficient rehabilitation. That will lead to the consular officer denying your visa application on health-related grounds. Therefore, based upon what you describe, if you just recently were arrested, applying for the visa this summer is too soon. You'll want to put off applying until it's been more than a year since the alcohol-related conviction or final case disposition, if you go through some type of court-ordered diversion program.
After the one-year period, get a complete, court-certified copy of the final case disposition before leaving the United States. Also gather copies of related documents, such as the police ticket explaining the charges and the relevant statutes for the crime and penalties. The consular officer will want to review those.
Be honest about the drunk-driving charge on the visa application form and in responding to questions from the consular officer. If you have any type of criminal conviction but do not mention it, the consular officer may deny the visa application based upon a misrepresentation, that is, for lying. It could be that the conviction would not cause the officer to deny the visa but failing to provide information about it would.
Finally, be aware of something called “prudential revocation” of visas. In late 2018, there were reports of U.S. consulates and embassies revoking existing visas of persons in the U.S. upon learning of a DUI arrest. Such a revocation should only become effective when you leave the U.S., but in those situations from 2018, it took effect immediately and led to some persons not being able to travel or even to apply to extend their stay while remaining in the United States. The problem appears to have subsided, but it still is a good idea to consult an attorney if you have any legal troubles beyond a simple traffic ticket to understand how it could affect your immigration status.