Common Issues and Procedures in H-1B visas.
F-1 Students: “Cap Gap”:
An F-1 student filing for a change of status to an H-1B visa is allowed to remain in the United States until October 1, when H-1B visa becomes effective. Under the “Cap Gap” rule, an F-1 student’s status and work authorization under Optional Practical Training will be extended automatically if the student is subject to the cap and is applying for an October 1st start date, provided the student requests a change of status, has continuously maintained an F-1 status and an H-1B petition is properly filed and accepted for processing. Student’s Form I-20 will be annotated accordingly.
Consular processing for an H-1B visa:
- If an employee is not in the United States, it will be necessary to apply for a visa at the United States Consulate or Embassy in the applicant’s home country.
- In some circumstances an F-1 student seeking H-1Bvisa must depart the United States and undergo a consular processing abroad. This may be required if there was a violation of immigration status.
- If the F-1 student’s status has been changed to H-1B in the U.S., and such alien travels abroad, he must obtain a new H-1B visa at the U.S. Consulate in his home country in order to return to the United States. This requires careful advance planning and preparation. Occasionally, visa issuance is significantly delayed at the consulates for various reasons, commonly called “administrative processing”. Delays may last for weeks or even months.
Upon receipt of the H-1B visa, employee may enter U.S. not earlier than 10 prior to October 1 or other date as indicated on the approval notice.
Premium Processing of an H-1B visa:
The H-1B petition can be filed using a Premium Processing service, which requires an additional $1,225 fee. Cases are processed in expedited manner and USCIS must adjudicate the petition within 15 days of receiving the petition or refund the fee. Sometimes USCIS suspends premium processing for various reasons and it is important to verify if a premium processing is available before filing.
The employer must pay H-1B petition filing fees and may not request reimbursement of the fees from the H-1B employee. Certain employers are exempt from certain kinds of filing fees.
An employee is allowed to pay the attorney’s fees only where the wage offered to the employee exceeds the prevailing wage by the amount of the fees. Otherwise, the employer must pay the attorney’s fee.
Maximum Time in H-1B status and Extensions:
H-1B status is granted for up to three years at a time and for a maximum of six years. However, status can be extended beyond the six year period under the following situations:
- A labor certification application or immigrant visa petition has been pending for one year; or
- The Form I-140 is approved and a visa number is unavailable due to annual quotas.
In these conditions, H-1B status may be extended in increments until an immigrant visa becomes available and a person is able to adjust status.
Portability: Change of Employers:
Employee in H-1B status is allowed to change employers. Change of employer is not subject to the H-1B visa cap and can be done at any time. New employer must file a new H-1B petition in compliance with all applicable rules and pay all necessary filing fees. Change of employer procedure is essentially the same as an initial H-1B petition. One notable advantage is that Regulations allow an employee to begin employment with the new H-1B employer upon USCIS receipt of an H-1B petition.
Family members of H-1B worker: Spouse and children in H-4 status.
Spouses and children under 21 years of age are eligible for an H-4 status for the same duration as principal employee’s H-1B status. As a general rule, H-4 visa holders are not eligible for employment, although they may attend college.
It is also possible for H-4 spouse to obtain her or his own H-1B visa and change status accordingly.
Employment of spouses in H-4 status:
One exception applies to H-4 spouses allowing their lawful employment. Spouses in H-4 status may be authorized to work in the U.S. if all of these conditions a met:
- If an H-1B spouse/employee is sponsored by his employer for permanent residency, and
- An I-140 Immigrant visa petition has been approved, and
- Visa numbers are not currently available to adjust status to permanent residence due to annual visa quotas causing long delays in case processing.
In this situation an H-4 spouse may file Form I-765, Application for Employment Authorization and once such application is approved, may accept employment.