Frequently Asked Questions About H-1B Visas

Here are the answers to many common questions concerning the H-1B visa:

Question: How long will it take for the H-1B visa petition or change of status to be approved?

Answer: This depends on the actions of various government agencies. The first thing you need to be aware of is the annual quota, or overall limit on new H-1B visas. While some employers are not subject to the annual "H-1B cap" and can file their petitions at any time, most employers will need to make sure there still are visas available. For more information, see H-1B Visa to the U.S.: Who Qualifies? Therefore, the first step will be to determine whether you can file your petition now or need to wait for the April preceding the next fiscal year (which begins October 1).

If and when you determine you can proceed now, the Department of Labor (DOL) must certify the employer's Labor Condition Application (LCA). That process normally takes at least a week. U.S. Citizenship and Immigration Services (USCIS) then must make a decision on the employer's Form I-129 Petition. The USCIS processing time can range widely, from a month or two to more than six months. See the USCIS website for current processing times.

If you are outside the U.S., you also will need to apply for an H-1B visa upon approval of the petition. The visa processing time depends upon the caseload of the U.S. consulate where you apply. It can range from a few days to several months.

If you are in the U.S. and your employer is requesting a change or extension of your status, you will need to check the validity dates on the approval notice (USCIS Form I-797 Notice of Action) that contains your new I-94 Departure Record to see when your H-1B status is effective. For example, if the petition is filed April 1 and approved June 1, the H-1B status may not become effective until October 1 based upon the annual H-1B cap.

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

Answer: Yes, there are two options for speeding up the I-129 Petition. First, if your petition has been pending more than 30 days beyond the posted processing times, the employer or attorney may call the USCIS National Customer Service Center (the number will be listed on the H-1B receipt notice, Form I-797) to request adjudication. The second option is to pay an additional filing fee ($1,225 as of 2016) and submit Form I-907, either with the original filing or while the petition is pending, to request "Premium Processing." USCIS will approve or deny the petition or request additional evidence within 15 calendar days. If USCIS requests additional evidence, a new 15-day clock begins from the time USCIS receives your response. Unfortunately, there is no expedite option for visa processing at the U.S. consulates abroad.

Question: My friend's employer filed an H-1B visa petition the same time my employer 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. The agencies do follow a first-in, first-out protocol, but the more complex cases take longer. One case might be more complex than another because, for example, it is not clear to USCIS that the job requires a specific bachelor's degree, or because USCIS questions whether the employer actually has project work to keep the H-1B employee busy. Sometimes USCIS will send a "Request for Evidence" asking the employer to provide more information and documentation. In other cases, it simply takes USCIS longer to review the petition.

Question: My employer's H-1B visa petition on my behalf recently was approved, 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: You first must obtain an H-1B visa from the U.S. consulate before you may enter the United States. There are certain timeframes for when the employer must begin to pay your wages. If your entry to the U.S. will be delayed, you and your employer should consult with an immigration attorney to determine the planning options.

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. If you spend less than six months each year in the U.S. in H-1B status, the six-year limit does not apply.

Question: Exactly when does the six-year maximum period for my H-1B status start?

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 initially are abroad, the six-year clock begins when you first enter the U.S. using your H-1B visa stamp.

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 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., after six years, you can recapture those six months to gain additional H-1B time. Your employer also can pursue an immigrant visa (green card) on your behalf, and 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. The exact possibilities depend on your specific situation and should be reviewed with an immigration attorney.

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 your H-1B "status" expires (i.e. the period you may remain in the U.S.), however, be sure to 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 your 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 sea, you may have not received a paper card. If you don't have a paper I-94, you 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.

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

Answer: Your employer can file a petition to renew your H-1B status six months before its expiration. As long as your employer files the petition before your current status expires, you may remain in the U.S. while the extension is pending. Your work authorization also continues for up to 240 days, or until USCIS approves or denies the extension. But rather than wait until the last minute, the better option is to submit the extension request as early as possible.

Question: My H-1B application 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 outside the U.S. 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, the best option is to apply at the U.S. consulate in your home country. If you want to apply at the U.S. consulate in a country other than your home country (a so-called "third country"), you need to review the protocol at that consulate to determine if you may apply 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. You also can have concurrent H-1B employers, such as for two part-time jobs. (It's not as easy as it sounds, though. Each employer needs to get its own H-1B approval for you.) The only limitation you have 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.

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