H 1B Visa FAQ

Q: Can an H-1B alien intend to immigrate permanently to the U.S.?

  • A:An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or request other advance permission from the INS to return to the U.S.

Q: Can an H-1B alien travel outside the U.S.?

  • A:An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Q: How do you apply for an HB1 Visa?

  • A:H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application ("LCA") with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file an I-129 petition with the Bureau of Citizenship and Immigration Services (previously INS) and, unless specifically exempt under the law, an additional $500 fee to sponsor the H-1B worker. Based on the Bureau petition approval, the alien may apply for the H-1B visa, admission or a change of nonimmigrant status.

Q: How long can an alien be in H-1B status?

  • A:Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years.

Q: If my company is acquired by another company, do I have to file for an amended H-1B?

  • A:No. An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.

Q: Must an H-1B alien be working at all times?

  • A:As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Q: What if the alien's circumstances change?

  • A:As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change employers without affecting status, but the new employer must file a new I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer's business will not affect the alien's status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it's a status violation.

Q: What is a specialty occupation?

  • A:A specialty occupation requires theoretical and practical application of a body of specialized knowledge, along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts are specialty occupations.

Q: What is an H-1B visa?

  • A:The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

Q: Who can an H-1B alien work for?

  • A:H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (such as Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have an I-129 petition filed by each employer.

Q: Who is eligible to use the H-1B "portability" provisions?

  • A:The portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the alien. Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed "before, on, or after" the date of enactment (October 18, 2000), so all aliens who meet this definition can begin using the portability provisions.

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