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Most Common Q & A

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  • Q1.I am continuing to work for my original H-1B employer while an H-1B change of employer petition has been filed on my behalf by a new company. Will there be a problem?

    No, there is no issue with filing several H-1B petitions on your behalf [as long as they come from genuinely distinct/unrelated businesses].

  • Q2.How will the [USCIS memo] affect me as someone who is now in H-1B status and who will soon be traveling to another country to visit family? I need to go to the consulate to receive a new visa stamp.

    Only the adjudication of H-1B applications is affected by the USCIS memo.  Consulates may in any event ask for extra details to confirm the legitimacy of an H-1B job.

  • Q3.Explain what an Alien Number is. If my H-1B is accepted, do I get one?

    An immigrant is often given an A Number if their petition has been approved on their behalf OR if they have been subject to removal proceedings.  If you haven't previously received an I-130 or I-140 approval and that information was revealed in the petition, there won't be an A number on your H-1B approval notification. 

  • Q4.In the lottery last year, my H-1B petition was chosen, but it was ultimately rejected. Can I reapply to the lottery for this year while the appeal is pending since that denial was appealed?

    Yes.  Other H-1B applications or lottery entries are not barred because an H-1B case is still on appeal.

  • Q5.My H-1B was approved for employment at a non-profit organization. Can I transfer to a for-profit company?

    Whether you can transfer to a for-profit company depends on whether the initial H-1B employer qualified as cap-exempt. Not all non-profit organizations qualify as cap-exempt. If your initial employer was cap-exempt, you may need to go through the H-1B lottery if the for-profit company wishes to sponsor you, or you may need to maintain employment with both the non-profit and for-profit companies simultaneously.

  • Q6.I am currently on OPT. If my H-1B petition is approved, do I need to travel outside the US for visa stamping? Can my dependent (who is abroad) receive a stamp?

    If your H-1B petition was not sent for consular processing, you will not need to travel outside the US for visa stamping. As for your dependent who is abroad, if they qualify for H-4 status, they should be able to apply for a visa stamp at the US consulate in their home country.

  • Q7.I have been working on OPT after completing a master's degree from a private non-profit US university that lost its accreditation. Can my employer file an H-1B petition for me under the master's cap?

    To qualify for the master's cap, the degree must be from a US accredited public or non-profit university. USCIS may consider the accreditation status of the university at the time your degree was conferred as well as when the H-1B petition is filed. To avoid potential issues later, your employer may choose to file the H-1B petition under the regular cap instead of the master's cap.

  • Q8.Do the job responsibilities stated in my H-1B extension need to match those listed on my approved I-140 petition?

    If the same employer filed the PERM labor certification that served as the basis for your approved I-140 petition, then the job duties should be similar. However, if the approved I-140 comes from a different employer, there is no need to be concerned about matching the job duties.

  • Q9.Is it possible for someone working on an H-1B visa to also have an H-4 Employment Authorization Document (EAD)?

    No, it is not possible to have both an H-1B visa and an H-4 EAD simultaneously. You can only hold one non-immigrant status at a time, and having an H-4 EAD requires being in H-4 status, which is incompatible with being on an H-1B visa.

  • Q10.I worked on an H-1B visa for less than 6 years and then left the US for over a year. Now an employer has filed a cap-exempt H-1B petition for me. Do I have a full 6 years of H-1B time available?

    No, the cap-exempt H-1B petition filed on your behalf will recapture the remaining time of your original 6-year H-1B period. To "reset" the clock and have a full 6 years of H-1B time, an employer would need to file a regular cap-subject petition (entering the lottery again) after you have been outside of the US for more than one year.

  • Q11.My STEM OPT is set to expire on [date], and my employer will file an H-1B petition for me around that time. Will I be eligible for cap-gap protections?

    If your OPT does not expire before the H-1B petition is filed, you should qualify for cap-gap protections. Cap-gap allows you to continue staying and working in the US until the H-1B petition is processed, even if your OPT has expired.

  • Q12.How long does it take for an H-1B change of employer case to be processed with regular processing? Can I upgrade to premium processing later?

    Currently, regular processing for H-1B cases can take around 6 months or so for adjudication by USCIS. As long as premium processing is not suspended, you should have the option to upgrade to premium processing at a later date for faster processing times.

  • Q13.If I have a pending H-1B amendment, can I still apply for a change of employer? Does the new employer need to be informed about the pending amendment?

    If your I-94 is valid, you should be able to proceed with filing an H-1B transfer even if you have a pending amendment. There is generally no requirement to inform your potential new employer about the pending amendment. However, it is advisable to consult with an immigration attorney to ensure that you understand the specific details of your case.

  • Q14.I have been in H-1B status for 5 years, having transitioned from F-1 status, and I have not traveled outside the US during this time, so I do not have a valid H-1B visa stamp. Will there be any issues if I apply for a visa stamp now?

    If your H-1B petition was solely a change of status and was not submitted for consular processing, it is common not to have a visa stamp. The visa stamp primarily serves as a travel document and is not required for maintaining H-1B status. Therefore, the delay in obtaining a visa stamp for travel purposes should not cause any significant concerns.

  • Q15.Can I start working immediately with a new employer once an H-1B transfer is filed on my behalf? Are there any risks associated with this?

    While it is true that you can commence working with the new employer once the H-1B transfer is filed, there is a risk that your petition for a change of employer may be denied by USCIS. In such a case, you would no longer hold valid H-1B status. It is important to weigh the potential risks and consult with an immigration attorney to understand the implications specific to your situation.

  • Q16.My initial H-1B status was obtained through a master's cap petition, despite graduating from a for-profit university. Now, USCIS has issued a notice of intent to deny my latest H-1B petition based on the cap issue. What can I do in this situation?

    While it is highly likely that your current H-1B petition will be denied due to the cap issue, there may be potential arguments and legal strategies that can be pursued. It is crucial to seek guidance from an immigration attorney who can assess the specifics of your case and provide appropriate advice and representation.

  • Q17.If my H-1B extension is denied, do I need to cease working immediately, or can I continue until the end of my current H-1B status?

    You can continue working until the expiration of your current H-1B status, even if your extension is denied. The denial does not invalidate your current H-1B status until its designated end date.

  • Q18.Can I attend school full-time while in H-1B status?

    Generally, you can pursue full-time education while in H-1B status as long as you continue to maintain employment as specified in the approved H-1B petition. It is important to comply with the terms and conditions of your H-1B status and consult with an immigration attorney to ensure you are in compliance with the regulations.

  • Q19.Can I upgrade my H-1B petition from regular processing to premium processing? Will this increase the likelihood of receiving a Request for Evidence (RFE)?

    If premium processing is available, you can upgrade your H-1B petition to premium processing at any time after it has been filed. It is worth noting that our firm has observed a higher incidence of RFEs with petitions filed under premium processing due to the time constraints imposed on USCIS in making a decision.

  • Q20.I am currently in H-1B status with a valid visa stamp. If I change to H-4 status, can I still travel outside of the US and re-enter using my H-1B visa stamp?

    Once you change to H-4 status, you will no longer be able to use your H-1B visa stamp for travel purposes, except for short trips to Canada or Mexico (30 days or less). To properly re-enter the US in H-4 status, you will need to obtain an H-4 visa stamp.