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General H-1B Visa Frequently Asked Questions?

I would like to work in the U.S. Can I apply for the H-1B visa by myself, without an employer?

No. You must have a legitimate job offer from a U.S. company or organization.

I have an Associates (2 year) Degree and 1 year of work experience as a Programmer Analyst. Do I qualify for the H-1B visa?

No. You must have at least a U.S. Bachelor (4-year) Degree or it’s equivalent.

3 years of work experience is equivalent to 1 year of University. So, if you have 6 years of work experience and 2 years of college, you could qualify.

The Degree and work experience should be directly relevant to your job title.

You will also want to have your credentials evaluated by a professional evaluation agency to verify to the USCIS that you possess the equivalent of a U.S. Bachelor Degree. We use and recommend Trustforte Corporation.

How does the H-1B visa quota system work?

Each October 1st, the USCIS makes available a certain number of H-1B visas for the following 12 months.

The Quota for this Fiscal Year (FY) 2013 (October 1st, 2012 to September 30th, 2013) is 65,000. There is also a quota of 20,000 for US Master Degree Holders, effectively making the quota 85,000.

The earliest you can apply for the H-1B Visa is 6 months before the requested start date. For example you may file on 4/1/12 for a 10/1/12 start date.

H-1B visa holders are not subject to the quota when applying for a transfer to another company or an extension with the same company.

I have a job offer as a Teacher with a Public School System. Are school systems subject to the annual quota?

Only if the school district has an approved H-1B petition based on the University affiliation cap exemption after 2006.

Employer H-1B Visa Frequently Asked Questions:

Is any provision made for continuity of H-1B validity in corporate restructuring situations?

Yes. An amended H-1B petition is not required where a new corporate entity succeeds to the interests and obligations of the original employer, and where the terms and conditions of employment remain the same.

How would an employer under the section 105 portability provisions fulfill the I-9 verification requirement?

The situation here is analogous to the 240-day grace period of 8 C.F.R. section 274A.12(b)(20), which authorizes employment with the same employer for up to 240 days after an extension petition is filed.

In both circumstances, the employment is authorized but there is no provision on the I-9 form for the documentation of this fact. Thus, employers may want to follow whatever documentation procedures they use for the 240-day grace period.

F-1 Student Visa / OPT Holder H-1B Visa Frequently Asked Questions:

I am an F-1 student working in my OPT (Optional Practical Training) for an insurance company as an Accounts Payable Supervisor. Do I qualify for an H-1B Visa?

It may be difficult. The USCIS will want to see evidence that the job duties require at least a Bachelor Degree in Accounting.

Your employer will want to gather evidence that other employees in the same position in your company and industry hold at least a Bachelor Degree in Accounting.

Your employer will also want to show the USCIS copies of Internal Job Postings and Help Wanted Advertisements that display the requirement of at least a Bachelor Degree in Accounting.

H-1B Visa Holder Frequently Asked Questions

I am working in H-1B Status for a University (cap exempt). Can I transfer to a for-profit company (cap subject) and be exempt from the quota?

No, but there is another option. You may file a concurrent H-1B Visa with the for-profit company while maintaining your University H-1B Visa. In this scenario, you are able to start work for the for-profit company immediately after filing the petition with USCIS.

Under the terms of the H-1B visa may I go on a leave of absence? Will my visa become invalid or will I be able to return and continue working for my original employer?

Yes, you may take a paid or unpaid leave of absence. At the end of your leave of absence you may return to work for your original employer in the US as long as your H-1B Visa has not expired.

I was on an H-1B visa with company A and got laid off on September 9th, I applied for H-4 before September 9th and got it approved recently. My question is its already been 60 days since my termination and now I have a H-4, so can I apply for the H-1B with a different company, and am I subject to the annual quota?

You will be able to apply for an H-1B visa immediately, and start work as soon as it is approved. You will not be subject to the annual quota since you were previously in H-1B status and have not left the US for over 1 year.

Do H-1B Visa Holders have to pay taxes?

The H-1B visa holder is subject to withholding of Social Security (FICA) tax as well as federal and state income taxes. H-1B visa holders are taxed as “resident aliens”, on their worldwide income and may claim deductions for family members.

My company is laying off workers and I feel that I may be laid off soon, what should I do?

The USCIS considers H-1B Visa holders to be out of status once their employment ends, unless the H-1B holder has filed a petition to transfer their visa to another company or another type of visa (example: F-1 Student Visa, B-2 Tourist Visa, etc.). There have been rumors that the H-1B holder has 10 days or 30 days after they are laid off to file a transfer petition. This is not true, however the USCIS has stated they are taking into account the current economic slowdown into account when adjudicating H-1B Transfers. We recommend filing for a change of status to the B-2 Tourist Visa immediately. This will allow you to remain in status in the US as a Visitor while you either find another job, go back to school, or prepare to leave the US. Click here for details on applying for the B-2 Visa.

I currently hold an H-1B visa with company A. Company B wants to hire me. What do I do?

Company B must file a petition to transfer your H-1B visa to their company. You may work for Company B immediately after the petition is filed with the USCIS. This change can be found in Section 105 of the American Competitiveness in the Twenty-First Century Act.

I am an H-1B visa holder and I just got married. My wife and her 12 year old son are in Mumbai. What do I need to do to get them over here?

First of all, congratulations. Your wife and her son will need to go to the nearest American Consulate with the following documents: Their passports, the son’s birth certificate, a copy of your marriage certificate, a letter from your employer stating that you currently work there, and a copy of your H-1B visa and / or approval notice.

Upon presenting these documents to the Consular Officer, he will stamp their passports with the H-4 visa and they will be free to travel to the U.S. to live with you.

The H-4 will be valid as long as your current H-1B visa is valid.

I am an H-1B visa holder and my first 3-year duration is going to expire in 3 months. My employer is filing an extension for me. Do I have to file a separate extension for my wife and child’s H-4 visa?

Yes you do. Use USCIS Form I-539.

You may use the same form for all of your H-4 dependents. You may file it with the H-1B extension petition or after (as long as you include a copy of the I-797 Filing Receipt from your H-1B extension petition).


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