For the frequently asked questions and its answers on a particular Work Visa type, please see the relevant information below:

Q1. I am an Australian Citizen but my spouse and children are not Australian citizens? Are we eligible for E3 visas?
A. E-3 visa classification applies only to nationals of Australia as well as their spouses and children. The spouse and children need not be Australian citizens.

Q2. I am a permanent resident of Australia. Am I eligible for E3 visa?
A. No. E-3 visas are only available for Australian nationals. If you are a new Australian citizen or are in the process of becoming one, please note that you will need to possess an Australian passport by the time of your visa interview.

Q3. Can I apply for E3 visa from any U.S. consulate outside Australia?
A. Yes.

Q4. Can I get an E3 visa for any occupation?
A. No. It is solely to work in a “specialty occupation.” The definition of specialty occupation is one that requires a theoretical and practical application of a body of specialized knowledge; AND the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

Q5. I have a degree and have found a job in the related profession in U.S. Do I qualify for E3 visa?
A. The job will qualify provided that it requires a minimum of a bachelor’s degree in a specialty occupation. It is not enough that an E-3 applicant holds a particular degree; the job itself must also require a bachelor-level or higher qualification.

Q6. Do I need a license for the specialty occupation?
A. E-3 applicant must meet academic and occupational requirements, including licensure in Australia where appropriate. In certain cases where a U.S. license or other official permission is required to perform the duties described in the visa application, but such permission or license is not available prior to entry into the United States, the applicant must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.

Q7. I do not have a Bachelor’s degree. Can I qualify for E3 using my work experience?
A. U.S. Code of Federal Regulations 8 CFR 214.2(h)(4)(iii)(D), describes the kind and amount of experience which can be used to establish the equivalency of a university degree. As a guide, three years of professional experience may generally be used as a substitute for each year of university-level education. This means you would need to show 12 years’ experience in the field you are applying to work in. During visa interviews, applicants should be prepared to provide documentation outlining their work history, education, and training. A consular officer will determine whether the educational and employment information provided meets the eligibility requirements for a U.S. visa.

Q8. Can I renew the E3 visa? Is there a limit to the number of times that I could renew?
A. E-3 visa applicants may be admitted for up to a two-year period, which is renewable indefinitely, provided the alien is able to demonstrate that he/she does not intend to remain or work permanently in the United States. There is no limit to the number of E3 visas that an applicant may hold over the course of their life.

Q9. I am on an E3 visa. Can I change my employer? Do I have to come back to Australia for this?
A. Yes. Your new employer must file a new Labor Condition Application and a new E-3 visa application. The gap between the jobs must be 10 days or less. Form I-129 is used to apply for an extension of stay or change of employment. You need not come back to Australia for changing the employer.

Q10. Can I come to USA on a Visa waiver Program (VWP) to find a job or attend the interview and then apply for E3 visa after returning to Australia?
A. Yes, you can travel on the VWP if you meet the requirements. If you do not meet the VWP requirements, you may be eligible to travel on B1/B2 visa. However, you must leave the United States before applying for E3 visa.

Q11. Does my employer have to file I-129 for an E3 visa?
A. No, the employer in the United States is not required to submit a petition to USCIS as a prerequisite for the E3 visa. However, the employer must obtain a Labor Condition Application (LCA), from the department of labor by filing form ETA Form 9035.

Q12. I am on an E3 visa. Can my spouse and children work?
A. Yes. E-3 spouses are entitled to work in the United States and may apply for an Employment Authorization Document (Form I-765) through U.S. Citizenship and Immigration Service (USCIS). When completing the form, applicants will need to select the visa type E1/E2, as E3 is not listed as an option.

Q13. How long would my E3 visa valid for?
A. The validity of the visa will not exceed the validity period of the LCA, nor will it exceed the reciprocity period of 24 months established by the Department of Homeland Security. Any validity period extensions will be based on LCA extensions.

Q14. Is there a limit to the E3 visas that could be issued each year?
A. A maximum of 10,500 E-3 visas are issued annually during each fiscal year, which runs from October 1st to September 30. Spouses and children of applicants do not count against the quota, nor do applicants extending their E3 visas whilst still in the U.S. and working for the same employer.

Q15. I am applying for an E3. Do I have to show that I do not intend to abandon my residence?
A. E-3 status provides for entry on a non-permanent basis into the United States. Similar to E-1 and E-2 visa applicants, the E-3 must satisfy the consular officer that s/he intends to depart upon termination of status.

Q16. How long can I stay in USA after my job on E3 visa is over?
A. 10 days.

Q17. Can I travel outside USA while on E3 visa?
A. E-3 visa is a multiple-entry visa, so provided you have not changed employers or extended your status you may travel outside the United States and re-enter on a valid, unexpired E-3 visa. If you have a change in status and exit the United States, you will need to obtain a new E-3 visa at a U.S. Embassy or Consulate abroad before you may re-enter.

Q1. What is an H1B visa?
A. It is a visa for professionals who are coming to work in a specialty occupation. The offered job must be in a ‘specialty occupation’ and must require a bachelor’s degree as a minimum qualification to enter into the job. The worker may qualify based on years of employment experience that are determined to be the equivalent to a bachelor’s degree. The H1B visa allows persons who are offered a position to work for the U.S. employer in their field of occupation.

Q2. How do I qualify for an H1B visa?
A. To qualify for H-1B visa, you must: demonstrate that you have the ability to work in the specialty occupation that requires the application of highly specialized knowledge; be coming to the U.S. to earn money or a livelihood working in a professional capacity; have a bachelor’s degree or the equivalent in work experience (usually three years of work experience is counted for each year of missing university education).

Q3. What is the H1B cap and how does it work?
A. The H1B cap is an annual limitation on the number of new visas available for H1B workers. The cap is currently set (by Congress) at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for programs for nationals of Chile and Singapore. The 65,000 does not include the 20,000 additional visa numbers available to persons who have earned masters’ or higher degrees from U.S. institutions of higher education.

Q4. When should H1B cases for cap-subject cases be filed? How does the timing work?
A. The cap numbers become available at the beginning of each fiscal year that starts on October 1st. However, cases can be filed six months in advance of the requested start date. Therefore, cases can be filed on the preceding April 1st. If the cap is reached by April 5th USCIS may conduct a lottery to select the petitions that will be accepted for processing. If it is not reached by April 5th then USCIS will continue to accept cap cases for the current fiscal year until the quota is reached, or until the end of the fiscal year which is September 30th.

Q5. What kinds of employment arrangements qualify as cap exempt?
A. Certain employment is exempt from the need for a cap number. This is referred to as cap exempt. Cap-exempt employment includes employment “by” or “at” universities and their nonprofit affiliates, as well as nonprofit entities related to or affiliated with institutions of higher education, and governmental research organizations. Evidence must be submitted to document qualification for cap exemption. Under the recent interim guidance issued by USCIS for H1B cap exemptions for nonprofits, USCIS will defer to a prior determination of cap exemption if a petitioner can demonstrate that the USCIS previously determined it was cap exempt.

Q6. What are the new exemptions to the H-1B cap?
A. The American Competitiveness Act of the 21st Century (AC21) exempts H-1B workers who are employed by or have an offer of employment from: Institutions of higher education; Related or affiliated nonprofit entity; and Nonprofit or government research organization.

Q7. I am on L1/L2 visa and would like to apply for an H1B. Am I subject to the cap? What about if I apply it under premium processing?
A. As you are applying for the H1B for the first time you are subject to the cap. The same goes for a student on EAD or H4 applying for the H1B. Premium processing has nothing to do with the cap. You still would be subject to cap.

Q8. Will I be subject to the cap even if USCIS receives my application before the cap is reached?
A. It does not matter whether USCIS received your application before cap is reached. The cap should not have reached when your application is approved.

Q9. My employer filed for H1B but is not providing any information. How can I find the details?
A. You cannot get the details from USCIS as the petition was filed by employer. Note that H1B is your employer’s petition and not yours. Only employer or its attorney can contact USCIS.

Q10. My H1B is approved for start date of October 1st. When can I apply for the H1B visa at the U.S. Consulate?
A. Within last 90 days of the start date.

Q11. My H1B was approved but have not gone for the stamping. The cap is reached. Will I be able to get the stamping?
A. H1B cap is counted by USCIS when approving the H1 visa. You can get the stamping done.

Q12. I am already in U.S. with an H1B working for an employer. Am I subject to the H1B cap?
A. It depends. Typically, if one is in H1B status and has already been counted against the H1B cap, s/he is not subject to the H1B cap. Individuals, who have only held H1B status with cap-exempt employers, like universities or nonprofits associated with institutions of higher education, are not deemed to have already been counted against the H1B quota.

Q13. What are the new H1B filing exemptions?
A. An amended H-1B petition is not required to be filed when the petitioning employer undergoes a corporate restructuring (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.

Q14. Can I have multiple H1B sponsors?
A. Yes. But each employer must file a petition.

Q16. I would like to pay all the USCIS fees for filing an H1B petition by my employer. Is this allowed?
A. No. All fees pertaining to filing the H1B petition must be paid by the employer. Try not to enter into a reimbursement agreement with the employer.

Q17. What are the determining factors for H1B prevailing wage?
A. The job title, educational and work experience requirements, job duties, and job location.

Q18. How long is the H1B visa issued for?
A. H-1B visa is initially granted for three years. The maximum number for H-1B visa is six years. One has to stay outside for at least one year before reentering. However, if a labor certification, I-140 or employment based adjustment application has been filed for more than 365 days, prior to the expiration of his current period of H-1B status, petitioner can request further extensions. Even though the labor certification or I-140 was not filed before 365 days of expiration of the 6 year term but if an I-140 is approved, the worker may still get the extension either for one year or three years depending on certain circumstances. The I-140 does not have to be from the same employer.

Q19. I am currently under OPT on F1 visa. When should I file my H-1B petition?
A. You may choose to file for H-1B status while in your practical training itself. If you file your H-1B petition aiming at the October 1st start date while in the practical training, you will have your H-1B ready by the time you are out of training. If the H-1B petition is filed before the expiry of F-1 you will not be out of status. If your OPT expires before the H-1B is approved, you cannot legally work until the H-1B is approved.

Q20. I am a graduate and have finished the entire course work but still have to submit my thesis which I will submit in May. Am I eligible to apply for H1B under the Master’s quota?
A. No. You should have all requirements of the degree completed. It is not necessary to have the physical diploma in one’s possession. After completion of all requirements of the degree you may obtain a letter of completion from the school and apply for H1B if the quota is still open. One should not apply for the masters’ cap if the degree requirements will not be completely fulfilled by April 1st.

Q21. I am currently on F1 OPT work permit. If my work permit expires, do I have to stop working until the H1B approval comes through?
A. Yes, you must stop working upon the expiration of the EAD or the OPT if an H1B cap case petition was not filed requesting a change of status prior to the expiration of the completion of the school program or end of OPT indicated on EAD card. If a petition for a change of status is timely filed for an October 1st start date (i.e. filed before the OPT period ends), then one may continue working between the expiration of the employment authorization and start of the H1B status (October 1st). If the petition is denied then one will no longer be eligible to remain and work in the U.S. pursuant to cap gap.
Note: You will not receive a new I-20 or be able to renew your EAD card. You should, however, keep the DSO at the school updated as to the status of the cap case and provide with copies of receipts and approval notices so that the SEVIS records can be properly maintained. Also note, if your H1B petition requesting a change of status is filed within the 60 day grace period that follows the conclusion of OPT employment or the F-1 academic program, you may legally remain in the U.S. until the start of the H1B but will not have employment authorization. If the H1B is denied then you will have to depart the U.S. If you are unable to file the H1B cap case and request a change of status petition prior to the conclusion of your F-1 status or 60 day grace period, you should try to maintain status by enrolling in another program or changing to another non-immigrant category, such as H-4, in order to remain in the U.S. In these circumstances you should depart the U.S. prior to the expiration of your status and be prepared for consular processing. Upon approval, the U.S. consulate abroad will be notified where you may apply for an H1B visa. If your petition and change-of-status request are approved (from F-1 to H1B), then the approval notice will have an I-94 card attached at the bottom.

Q22. I was in H1B status and changed to F-1 status. I am now ready to work in H1B status again. Am I eligible to get six more years of H1B status?
A. It depends on whether you have completed six years of H1B in U.S. In such cases, the six-year clock in H1B status is not reset unless one leaves the United States for at least one year. Individuals who previously held H1B status in the last six years, and subsequently left the U.S. for at least a year, generally have the option of either using the time remaining in H1B status without being subject to the cap or applying for another six years of H1B employment subject to the cap.

Q23. Can I pursue further university education while on H-1B?
A. Yes.

Q24. What is H1B portability and what are it’s’ limitations?
A. H1B portability provisions allows a nonimmigrant worker who was previously issued H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B petitioner when the new employer files (USCIS must have received it) H-1B petition for the alien. The foreign worker must have been lawfully admitted into the U.S. Subsequent to such lawful admission; the foreign worker must not have been employed without authorization. The new employer must have filed a ‘non-frivolous’ petition while the foreign worker was in authorized period of stay.

Q25. When can I begin working for my new employer after filing the H1B petition?
A. If you are currently in H1B status with another company, then you may be legally allowed to start working for the new employer upon USCIS’ receipt of the H1B petition. Otherwise, you generally must await an approval of the H1B petition and a change of status. If your H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), you may continue to work for the new employer until the expiration date on the I-94 card / H1B approval notice. If your H1B petition is approved without an I-94 card, you may have to immediately stop working, depart the United States, apply for an H1B visa at a U.S. consulate in the home country, and finally be readmitted in H1B status before being authorized to continue working for the employer.

Q26. I have an H1B approval. Can I work for my employer anywhere in the United States?
A. You are only authorized to work at the specific location or in the metropolitan area listed on the Labor Condition Application (LCA) certified with the U.S. Department of Labor (DOL), and filed with the H1B petition. There must be a certified LCA for each location at which you will work, attesting that the employer will comply with the prevailing wage requirement for that local area. DOL regulations and USCIS regulations differ with regard to an H1B employee’s change in work sites. The USCIS regulations require an amendment to the H1B that includes certification of the new location and the DOL regulations provide that certifying the LCA prior to the move is sufficient (i.e. an amended petition is not required).

Q27. I am on H1B status and would like to file another H1B petition with another employer, but I want to wait before I start work. Is it possible? Is there an obligation on my part to inform my current employer?
Yes. There is no obligation to begin work immediately. One must maintain lawful status by working for one of the companies that has an approval for that individual. There is nothing to prevent one from waiting to begin work. As long as the prior employer has not revoked the H1B petition with the USCIS, or the petition has not expired, it still is legal to be working for the prior company. When to join is up to you and your new employer.
You do not have to tell your current employer about the new filing.

Q28. I have an H1B Visa stamped for company A. Can I work for company B?
A. Legally no unless you have an H1B approved or at least filed (USCIS must have received it) by Company B.

Q29. My spouse is in H-4 status and has an employer who is willing to give a job. Can she begin working?
A. H-4 is a non-working status. In order to be legally authorized to work in the U.S., she must have the employer file an H1B petition with a request to change of status specifically. If the petition is approved with the change of status (I-94 card attached), she can start working on the start date on the approved petition. If the petition is approved but change of status is not approved (not issued the I-94 card), then she needs to travel abroad to obtain the H1B visa before returning to the U.S to work. An H-4 spouse can obtain employment authorization from USCIS if the primary H1-B holder has an I-140 petition approved or has filed an H1-B extension beyond six years.

Q30. I am currently on L1 status and applied for change of status to H1B. Can I continue to work on L1 after the H1B is approved?
A. If the H1B was approved with the change of status you are not in L1 status anymore. You should not work after the H1B start date on L1 as it constitutes unauthorized employment.

Q32. I intend to go for the H1B stamping. What are the documents required to apply for H-1B visa at the consulate?
A. A passport valid at least for six months as on the date of interview; documents sent by your employer including the approval (I-797) notice, complete copy of H-1B petition filed with USCIS, current dated appointment letter from Employer, current Federal Tax Returns of the employer, copy of the official evaluation of your degrees and all original transcripts, and work experience letters, if applicable.

Q33. I have an H1B stamped from my old employer and received an H1B approval for the new employer. Do I need a new H1 visa stamping or can I travel with old employer’s H1B stamped visa?
A. If your previous employer’s H1 visa stamp has not expired, you could use that visa stamp along with the new employer’s H1B petition and approval to travel back into U.S.

Q34. I have a valid H1B visa in my passport and if I leave the United States, can I come back and work for a different employer?
A. No, as you must have the new company’s H1B petition approved through the USCIS, since each H1B petition is employer specific. This applies to any company for which you might work, whether or not you already hold H1B status. However, if your visa has not expired in the passport, but now has a new H1B petition approved to work for another employer, it is possible, in most cases, to use the old H1B visa and show the new employer’s H1B approval notice to obtain a new I-94 card at the POE. The new I-94 card should have an expiration date that matches the expiration date on the new H1B approval notice.
NOTE: Sometimes POE officials make mistakes and issue an I-94 card valid until the expiration date of the visa. In such case you should request at that time that the officer indicate the correct date.

Q35. I just got the H1B approved with start date of October 1st. Can I transfer my H1B to a new employer? What if I started working on October 1st and after 8 weeks decide to change employer and have no pay stubs?
A. It is possible to file for an H1B transfer before October without paystubs from the first employer.
There is no guarantee of approval and risks associated with it are high. USCIS can consider it as benching. If you are on an H1B you need to be paid and will need pay stubs for the H1B transfer.

Q36. I am currently employed by Company X. I got a new offer from Company Y and Y filed for H1B transfer which is pending. I have now received a better offer from Company Z and want to join. Do I have to wait for the approval from Company Y to transfer to Company Z?
A. No. Using Company X’s approval and last few pay stubs, and receipt from Company Y, you should be able to get the transfer to Company Z as long as you are in valid status.

Q37. I am currently on H1B changing employers. I want to travel to my home country. Is it legal for me to leave?
A. Generally, yes, this may be possible. Safest bet is to avoid travel. The timing of your trip can complicate the situation as there have been changes in USCIS’s interpretations affecting those who travel abroad while a petition is pending.

Q38. I got my H1B approved and would like to go for stamping. But I want my spouse and children (dependents) also to do the stamping at the same time. Is it possible? Can my mother be a dependent and get H4 stamping?
A. Yes. It is recommended that dependents accompany you for their visa interview at the same time you got for stamping. Mother cannot get H4 as she is not considered as a dependent of the principal applicant.

Q39. I am on an H1. My son wants to study in USA. Should he get an F1?
A. If your son is on an H4 he does not need an F1 to study. Dependents can attend school and study on H4.

Q40. I have an appointment for H1B stamping scheduled next week along with my wife. My wife just had a new baby. Can I take my new born baby for the appointment?
A. Yes as consulates makes exception sin such cases. However, you may have to fill an application form for new born baby accompanying its parents for interview.

Q41. I was on an F1 and now I have changed to H1B. My wife is still on an F2. Does my wife need to change her status to H4?
A. Yes. If in the U.S. she can apply for change of status using Form I-539. If she is outside USA, she needs to get an H4 stamping on her passport.

Q42. Do H4 holders maintain status as long as principal alien maintains status, or are they required to file/maintain their status in change of employer of situations by principal applicant?
A. H4 non-immigrant classification is not employer specific and hence H4 holders remain in valid status which is contingent on the continued validity of the H1B principal applicant’s status.

Q43. I have been laid off recently while on H-1B status. Can I remain legally in the U.S. by changing status to another non-immigrant visa category?
A. Yes, you may apply for Change of Status to another non-immigrant visa category for which you qualify. USCIS officers have been allowed to exercise their discretion to grant you another non-immigrant status, if you apply for change of status.

Q44. I am on H1B. What is my status if I am laid-off?
A. If you are laid-off or have resigned from your current employer, you will lose your status immediately. It is advisable to leave the U.S. as soon as possible to avoid legal issues. You will not be able to change your status to any other visa in such case. However, if you decide to follow the petition , the better practice is to request the USCIS for forgiveness for any short period or request for approval of the petition subject to the condition that you would go for consular processing (go out of the country for interview and visa stamping). You may also find a new employer within 60 days getting laid off and file an H1-B transfer provided you have a valid I-94 and has not entered into any unauthorized employment. However, USCIS may not approve the new H1B petition with an I-94 attached to it.

Q45. I am on H1B. I am still employed by my company but not being paid. What is my status?
A. As per the law, you should get paid from day one you are employed and cannot be without a salary unless you are on unpaid vacation or sick leave. If you are not able to find another employment quickly, it is advisable to leave the U.S. You can complain to Department of labor (DOL) for payment of back wages if your employer refused to pay your salary.

Q46. I used to work for company A earlier. I left and joined company B which has not laid me off. My petition with company A is still valid (not revoked). Can I join company A back again and work?
A. Yes. But note that DOL may take a stand that you were never terminated by company A and may ask A to pay back wages for the period you never worked for A.

Q47. I am working on H1B and might be laid off soon. I have my EAD. Can I work for a new employer by filing an H1B transfer if I do not want to use my EAD. What If I do not find a job for two months after being laid off?
A. It is advisable to use EAD and secure an employment without your new employer having to file an H1B immediately. You will remain in authorized period of stay since you have an I-485 pending even if you are unable to find employment. As long as you chose to remain in valid H1B status you can have your new employer file the H1B petition and start working as soon as it is submitted.

Q48. My employer does not have any project for me and I have not received any pay for last 4 months. Employer forced me to give a letter of absence for 4 months back. Am I out of status?
A. Yes, for the 4 months you were not paid. You must have been working for the petitioning employer and getting paid the salary that was agreed upon as per the Labor Condition Application and H1B petition.

Q49. I was on H1B and recently laid off by my employer. My friend told me that until USCIS revoked the H1B petition I could get paid from my employer. Also, if my employer paid a severance package and as part of that package I receive my regular pay checks for another 3 months, I will not be out of status. Is this correct?
A. Your employer is required to pay you only as long as the employer-employee relationship exists and not until USCIS revokes the petition. They need to pay you till your last day of work.
You are considered out of status the day you stopped working. Sometimes USCIS does not look into any gaps of the pay stubs and you may be lucky filing an H1B with a new employer with the pay stubs you received as part of the severance package. But there is no guarantee.

Q50. Can I re – enter the U.S. with the same H-1B visa and work with another company?
A. Yes, you may enter the U.S. with an H-1B visa from a different employer to join a new employer, but only if the new employer has filed an H-1B petition with USCIS (USCIS must have received it) on your behalf.

Q51. I am on H4 and recently applied for H-1B. Now company does not have the financial strength to give me a job. Even though the H-1B got approved I could not join them. Am I in valid H1-B status or should I apply for an H4 again?
A. Since the company no longer has a job for you are no longer in H1B status. You should file H4 using Form I-539 as soon as possible.

Q52. I am on H1B and just got terminated. Is there a grace period? What if some new employer files for a new H1B?
A. If you are terminated there is no grace period. You may also find a new employer within 60 days getting laid off and file an H1-B transfer provided you have a valid I-94 and has not entered into any unauthorized employment. However, USCIS may not approve the new H1B petition with an I-94 attached to it. If you cannot find another employer, it is better for you to change your status to B1/B2 and find a new job. Then change back to H1B once a new employer has a job for you and files the petition.

Q53. Can I find a new employer and file a petition while my present employer has laid me off and sent a revocation letter to USCIS?
A. USCIS normally takes time to act on the revocation letter. You should find a new employer who could file a petition for you as soon as possible or you should change your status to some other status like B1/B2. If you did not continuously maintain status you may not be able to get an I-94 authorizing additional stay. In that case you may have to get the visa stamped from abroad.

Q54. When is employer considered H-1B-dependent?
A. An employer is considered H-1B-dependent if it has:
• 25 or fewer full-time equivalent employees and of which at least eight are H-1B non-immigrant workers; or
• 26 – 50 full-time equivalent employees and of which at least 13 are H-1B non-immigrant workers; or
• 51 or more full-time equivalent employees of whom15 percent or more are H-1B non-immigrant workers.

Q55. When must an employer determine dependency?
A. The employer must determine dependency when filing either:
• A Labor Condition Application (LCA); or
• A Petition for a Non-immigrant Worker (Forms I-129/I-129W) based on an LCA; or
• A request for an extension of H-1B status for a non-immigrant worker based on an LCA.

Q56. Is there a simple calculation to determine whether employer is H1B dependent? If an employer must fully calculate dependency, how is this performed?
A. Yes. An employer whose dependency is not readily apparent or is borderline may use the “snap-shot” test. The snap-shot test requires a comparison of the total number of all H-1B workers to the number of the total workforce (including H-1B workers). If a small employer’s snap-shot calculation shows that the employer is dependent, the employer must then fully calculate its dependency status. If a large employer’s calculation exceeds 15% of its workforce, that employer must fully calculate its dependency status.
This full calculation must take into consideration the total number of H-1B workers (a “head count” of both
full-time and part-time workers) and the employer’s total work force in the United States (including both U.S. workers and H-1B workers) and must be measured according to full-time equivalent employees.

Q57. What is a “willful violator employer”?
A. “Willful violator” or “willful violator employer,” means an employer that meets all of the following standards:
A finding of violation by the employer is entered in either of the following two types of enforcement proceeding:
A Department of Labor proceeding under the Immigration and Nationality Act (INA) § 212(n)(2); (8 U.S.C. § 1182(n)(2)(C); OR a Department of Justice proceeding under INA § 212(n)(5); (8 U.S.C.§ 1182(n)(5).)

  • The agency finds that the employer has committed either a willful failure or a misrepresentation of a material fact (two of the Labor Condition Application (LCA) attestations; and
  • The agency’s finding is entered on or after October 21, 1998.

Q58. Are willful violator employers subject to additional attestation requirements?
A. Yes. A willful violator employer must comply with additional attestations under any LCA it files within five years of the willful violation finding. The only exception is when an LCA is filed for and used exclusively for exempt H-1B workers. Willful violators and H-1B-dependent employers which file an LCA must meet the following additional requirements:

  • The employer has not displaced a U.S. worker at the time of filing an H-1B visa petition;
  • Before placing an H-1B worker at a secondary employer’s work site, the employer has inquired as to the secondary employer’s intent to displace a U.S. worker;
  • The employer has taken good faith steps to recruit U.S. workers; and
  • The employer has offered the job to any equally or better qualified U.S. worker who applies for the job for which the H-1B worker is sought.

Note: Willful violators are subject to random investigations by the Department of Labor for a period of up to five years from the date that the employer is determined to be a willful violator. Also, the Wage and Hour Division maintains a current list of such H1-B willful violators.

Q59. Is there any new ‘displacement’ or ‘no lay-off’ attestation rule for to H-1B dependent employers?
A. Yes. There are two new ‘displacement’ attestations that apply to H-1B dependent employers: the employer has to attest that it did not displace and will not displace as U.S. worker employed by it within the period beginning 90 days before and ending 90 days after the filing of the H-1B petition based on the Labor Condition Application. It also has to attest that it will not place the H-1B worker with another employer where no such disclosure was made.

Q60. My employer is committing H-1B violations especially regarding wages and work hours. What should I do?
A. File a complaint against the employer and report the violations to the Department of Labor’s Employer Standards Administration.

Q61. What should I do if there is a change in my H-1B working conditions?
A. Most changes will not affect your H-1B status as long as you continue to work on H1B for the employer. You may change H-1B employers without affecting status for which your new H-1B employer must file a new I-129 (Petition for Non-immigrant Worker), before you start working for him. Any merger/sale of your H-1B employer’s business should not affect your status However, due to the change if you are working in a capacity other than the specialty occupation for which your employer petitioned, it is a violation.

Q62. What should I do if my H-1B visa has expired?
A. There is no need to be concerned if the visa in your passport has expired and not the H-1B status. You would need to apply for another visa at a U.S. consulate abroad the next time you travel outside the United States. Your legal status in the U.S. depends upon the expiration date on the I-94 card, written by the immigration officer at the port of entry. As long as it is valid and you continue to work for the sponsoring employer under the terms of the petition, then you should be fine. If your status has expired then you should contact an attorney immediately your options.

Q63. I was on H1B status and my spouse in H-4 status. Spouse did not apply separately to extend her H-4 status and has been out of status for over 6 months. What should she do?
A. She is subject to the 3-year or 10-year bar for failure to maintain lawful status beyond 180 days. She should contact an experienced U.S. immigration attorney immediately.

Q64. My wife and I are on H1B status. I would like to change my status to H-4. Is it possible?
A. Yes. You should file an application with the USCIS to change status from H-1B to H-4 for which both your spouse and you must be maintaining current legal status in order for the USCIS to approve the change of status. Also, you could obtain an H-4 visa at a U.S. consulate abroad and use it to reenter the U.S.

Q65. Can I start my own company being on an H-1B status and work for the new company?
A. If you wish to work for your own company a new H-1B petition must be filed. Note that the H-1B petition may not be successful because the petition may not be able to establish the existence of employer / employee relationship. This relationship must be present and often it may be difficult to establish in a closely-held, corporate entity. USCIS will seek evidence of the petitioner’s (your company’s) right to control the beneficiary’s (your) employment. Based on the new updated guidance from USCIS, it may be possible for an entrepreneur to qualify for H-1B classification. Also note that you may be able to passively invest without filing an H-1B petition.

Q66. Is it true that USCIS closely scrutinizes petitions filed by small IT consulting firms? How can such firms ensure successful H-1B approvals?
A. Show that the company has specific H1B-level work for consultants at the time of filing. For consultants working at back office on a project, provide detailed information on the project, including its technical specifications, the end-product, and a business plan / market analysis (potential market targets, expected revenue source, anticipated project length, etc). Ensure that company has other means to pay wages of consultants if the project will not earn revenue in a relatively short period of time. For consultants placed off site / end clients, the location should be stated in the H1B petition as well as in the certified labor condition application (LCA) that accompanies the petition. Besides, provide strong evidence of the specific project that is immediately available to consultant at the time of filing the petition or the requested start date by submitting contracts, purchase/work orders, end client/vendor letters, and other supporting documentation to demonstrate that there is an H1B position available to the consultants and that the consultants services are needed for the entire duration of time requested in the H1B petition. For more than one work location or project, provide a detailed itinerary/schedule indicating when the consultants would be working on the specific projects at each location. Further, provide complete evidence for each project or assignment that consultants would be assigned in order to evidence that there is a bona fide specialty occupation available for period requested in the LCA.
One cannot generally change locations and file new LCAs in response to a request for evidence (RFE) or while a petition is pending with the USCIS. If there is a location change after a petition is approved, or other details of the employment change, one may need to file an H1B amendment petition.

Q67. I am an employer who terminated an H1B employee. Am I responsible for return transportation for the terminated H1B worker? Should I notify USCIS about H-1B employee’s termination of services?
A. As an employer you are liable for “the reasonable costs of return transportation of the alien abroad” if the H-1B worker is terminated before the end of the period for admission. You should notify USCIS of the termination.

Q68. Can I immigrate permanently to the U.S. when on H-1B visa?
A. Yes, you may apply for Adjustment of status while on H-1B visa. You may be the beneficiary of an immigrant visa petition, or take other steps towards Lawful Permanent Resident status without affecting H-1B status. Under the law you could exhibit both immigrant and non-immigrant intent (dual intent) at the same time. During the time your application for Green Card status is pending, you may travel on your H-1B visa rather than obtaining Advance Parole. You could also enter U.S. after travel on advance parole.

Q1. Is H1B1 visa a single entry visa? How long is it issued for?
A. It is a multiple entry visa and valid for maximum of 18 months.

Q2. I want to apply for H1B1. What criteria must I meet?
A. The position must be a specialty occupation; that is, a position requiring theoretical and practical application of a body of specialized knowledge. You must have a post-secondary degree involving at least four years of study in your field of specialization. In some instances, a combination of specialized training and experience can constitute alternative credentials. You cannot be self-employed or be an independent contractor. Your period of employment in the United States must be temporary and as such, must demonstrate non-immigrant intent.

Q3. Am I required to file any petition with the USCIS to obtain the H1B1? What about LCA?
A. There is no requirement that a petition first be filed with the USCIS. Chileans and Singaporeans may apply directly at a U.S. consulate for an H1B1 visa. A petition may be filed with the USCIS to change status to H1B1, or to extend H1B1 status. As with the H1B visa, a labor condition application (LCA), certified by the U.S. Department of Labor, is required.

Q1. What is H2A/H2B visa program?
A. Those are programs that allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs.

Q2. Who can file an H2A petition?
A. A U.S. employer, a U.S. agent as described in the regulations, or an association of U.S. agricultural producers named as a joint employer can file Form I-129, Petition for Non-immigrant Worker, on a prospective worker’s behalf. Petitioner must submit with the H-2A petition, a single valid temporary labor certification from the U.S. Department of Labor. A limited exception to this requirement exists in certain “emergent circumstances.”

Q3. Who may qualify for an H2A classification?
A. To qualify for H-2A non-immigrant classification, the petitioner must offer a job that is of a temporary or seasonal nature; demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work; show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Q4. Who can file an H2B petition?
A. A U.S. employer, or U.S. agent as described in the regulations, must file Form I-129, Petition for Non-immigrant Worker, on a prospective worker’s behalf.

Q5. Who may qualify for an H2B classification?
A. To qualify for H-2B non-immigrant classification, the petitioner must establish that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work; the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):

One-time occurrence (Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker) OR

Seasonal need (traditionally tied to a season of the year by an event or pattern; and of a recurring nature. Note: Employment is not seasonal if the period during which the service or labor is needed is Unpredictable; Subject to change; or Considered a vacation period for the employer’s permanent employees) OR

Peakload need (regularly employs permanent workers to perform the services or labor at the place of employment; needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and the temporary additions to staff will not become part of the employer’s regular operation) OR

Intermittent need (has not employed permanent or full-time workers to perform the services or labor; and occasionally or intermittently needs temporary workers to perform services or labor for short periods).

Q6. What is the period of stay under H2A/H2B classification?
A. Generally, USCIS may grant such classifications for up to the period of time authorized on the temporary labor certification. Such classifications may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A/H2-B classifications is 3 years. A person who has held H-2A/H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A/H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A/H-2B time.

Q7. Are there any employment-related notifications that petitioning employer must comply with USCIS?
A. Yes. Petitioners of H-2A/H-2B workers must notify USCIS within 2 workdays if any of the following occur:

No show: The worker fails to report to work within 5 work days of the latter of the employment start date on the petition, or the start date established by the employer;

Absconding: The worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer;

Termination: The worker is terminated prior to the completion of the H-2A/H-2B labor or services for which he or she was hired; OR

Early Completion: The worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the petition.

Q1. I applied for an L1 visa. The consular officer returned my approved petition to U.S. Citizenship and Immigration Services. What does that mean?
A. If, during the interview process, the consular officer had reason to believe that you did not qualify for the visa or that there was misrepresentation in the petition process, the consular officer will return the approved Form I-129 (Petition for a Nonimmigrant Worker) to U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security with the recommendation that the petition be revoked. Your case will remain suspended while USCIS makes a decision, and you will be unable to travel to the United States in the meantime. If USCIS decides to reaffirm its approval of the Form I-129, the Non-immigrant Visa Unit will contact you and ask you to make an appointment for a follow-up interview with a consular officer.

Q2. Can I enter the United States on my L visa before I begin my employment is scheduled to begin?
A. Yes. You may enter the United States up to 10 days before your employment is authorized to begin as indicated on your Form I-797 (Notice of Approval). However, you may not work in the United States except during the validity period of the petition.

Q3. Can I change employers while in the United States in L non-immigrant status?
A. Yes, if you can show that you have worked for the new employer’s foreign branch continuously for one year during the last 3 years of applying. You can also change employer by changing your status to an H-1B.

Q4. Can my spouse or child travel with me?
A. Spouses and/or children under the age of 21 can receive a derivative (L-2) visa to accompany you in the United States.

Q5. Can my stepchild apply for a derivative (L-2) visa?
A. Yes, if the marriage creating the stepchild relationship occurred before the child’s eighteenth birthday. Your child’s application materials must include a copy of your marriage certificate establishing the stepchild relationship.

Q6. Can my wife on L-2 work in the United States?
A. Yes, spouses in derivative L status may seek employment authorization from U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security.

Q7. I am an employer. Can I move my L1 employee to another work site? Can I have the employee’s wok location changed?
A. Yes. But you need to show control and management of the employee. The work location can be changed as long as the job duties remain the same. However, you must notify the USCIS by filing an amendment petition.

Q8. I was on L1 visa and got laid off?
A. There is no grace period and you are out of status the day you are without work. You may have to immediately find a job or change to B1/B2 or other nonimmigrant category.

Q9. As an employer do I have to pay the prevailing wage or pay a certain amount to the transferee?
A. No. However, you may have problems with Department of Labor if you pay lower wages. As an employer you should make sure that reasonable wage depending upon the structure, size and business practices is paid to the transferee.

Q10. What is the maximum period that I can be on L1 visa?
A. If you are on L1A, the max is 7 years and if you are on L1B, the max is 5 years. Usually, the initial approval is granted for three years or less. You then need to apply for a renewal.

Q11. I am an employer and opened a new branch office in United States. I want to send my employee as a manager to supervise the operations. Since there is only employee in the new branch, will L1A be difficult?
A. It may not be difficult as establishing the new office category has certain set of rules. These provisional rules are designed for such new office which at the time of filing is not fully established or able to support a full time manager or executive. You may have to show office lease, business plans etc. to show that company will develop in future so as to afford such a managerial position. However, the initial duration of such L1A will be given only for one year.

Q12. I am on L1. Can I study?
A. Yes

Q13. Is my corporation eligible for a Blanket Petition?
A. Probably yes, if your corporation is a business that frequently uses L1 visas a lot and is a large multinational with 3 or more branches, subsidiaries or affiliates. You need to show one or more of the following: combined US annual sales of $25 million; a US workforce of 1,000; or has received at least 10 L petitions approved in last 12 months.

Q1. How long can I work on R1 visa?
A. One can work for five years in R1 status. Usually it is granted in two periods of 30 months. An R1 visa holder who has spent five years in the United States may not be readmitted to or receive an extension of stay in the United States under the R visa classification, unless the R1 visa holder has resided abroad and has been physically present outside the United States for one year. However, if R1 visa holder was outside of the United States for any period of time during the five years, he or she could recapture the number of days spent outside of the United States.

Q2. Does USCIS inspect the religious organization sponsoring the R1 visa?
A. An onsite inspection may be conducted by USCIS as a condition for approving the R1 status to see whether the sponsoring organization is genuine and a job for the religious worker is available. Inspection may also be conducted to see whether the religious worker is indeed working and is getting paid the wage offered.

Q3. I am on R1 visa. Can my spouse on R2 visa work?
A. R2 visa holders are not permitted to work.

Q4. Can my religious organization file the R1 petition under premium processing?
A. Yes, only if an onsite inspection was conducted on the religious organization by USCIS earlier.

Q5. Can I file R1 visa petition on my own?
A. No, you need a religious organization to file it.

Q6. Can I file my own religious worker petition?
A. A U.S. employer, or the religious worker on his or her own behalf must file religious worker classification.

Q7. Is there a cap for religious workers entering the United States solely for the purpose of carrying on the vocation of a minister?
A. There is no cap.

Q8. For an R1 religious worker to qualify as a special immigrant religious worker, must the foreign national be a member of the religious denomination that has a bona fide non-profit religious organization in the United States for at least 2 years IMMEDIATELY/BEFORE the filing of a petition with USCIS.
A. Yes. Note: for R1 nonimmigrant visa, the two years of denominational membership need not be immediately/before the fining of the I-129 petition.

Q9. Should the R1 religious worker have been working in position of offered continuously for at least 2 years immediately before the filing of the immigrant petition with USCIS?
A. Yes. However, a break in the continuity of the work during the preceding two years will not affect eligibility so long as the foreign national was still employed as a religious worker; the break did not exceed two years; and the nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States. However, the foreign national must have been a member of the petitioner’s denomination throughout the two years of qualifying employment. Note that for the two years the religious worker must have worked after the age of 14, either abroad or in lawful immigration status in the United States.

Q10. My prospective religious organization denomination does not have any specific theological education and does not issue any ordination certificate. What should I submit in lieu of that?
A. The denomination should provide the religious denomination’s requirements for ordination to minister, a list of duties performed by virtue of ordination, the denomination’s levels of ordination, if any, and evidence of the religious worker’s completion of the denomination’s requirements for ordination.

Q11. Can I file I-485 (Adjustment of Status) along with the I-360 petition (Petition for Amerasian, Widow(er), or Special Immigrant) even though my position is that of a Minister?
A. No. You can apply it only after the approval of I-360 petition.

Q12. Can religious workers other than ministers file I-360 immigrant petition?
A. Yes. However, they should immigrate or adjust to permanent resident status before the sunset date.

Q1. What is TN visa?
A. The non-immigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States in prearranged business activities for U.S. or foreign employers.

Q2. I am a permanent resident of Canada/Mexico/ Am I eligible for TN visa?
A. No. Only citizens of Canada/Mexico are eligible for TN visa.

Q3. What are the criteria for a citizen of NAFTA to work in a professional occupation in United States?
A. Citizen of a NAFTA country may work in a professional occupation in the U.S. provided the profession is recognized under NAFTA; and the alien possesses the specific criteria for that profession; and the prospective position requires someone in that professional capacity; and the alien is going to work for a U.S. employer. If all of these conditions are met, then a TN may be issued.

Q4. What is the eligibility for TN non-immigrant status?
A. Applicant is a citizen of Canada or Mexico; the profession is on the NAFTA list; the position in the United States requires a NAFTA professional; the applicant will work in a prearranged full-time or part-time job for an employer; and applicant has the qualifications, meeting the specific requirements, education, and/or experience, of the profession.

Q5. Is self-employment allowed under TN visa?
A. No

Q6. I am a Canadian citizen. Do I require a TN visa? If so, where do I get it?
A. Canadian citizens usually do not need a visa as a NAFTA Professional, although a visa can be issued to qualified Canadian TN visa applicants upon request. A Canadian citizen without a TN visa can apply for TN nonimmigrant status at a U.S. port of entry.

Q7. When is a NAFTA Professional (TN) visa required for a Canadian citizen?
A. A Canadian without TN non-immigrant status, who resides in a third country with a non-Canadian spouse and/or child(ren), and who plans to enter the United States as a NAFTA professional at the same time as the family member(s), will need a TN visa in order for the family members to be eligible to apply for derivative TD non-immigrant visa(s).

Q8. I am a Mexican citizen. Do I require a TN visa? If so, where do I get it?
A. Mexican citizens require TN visas to request admission to the United States in this status. You have to apply at the U.S. embassy or consulate in Mexico.

Q9. I am a professional and would like to come to US and work. Do I require a bachelor’s degree?
A. It depends on the profession you plan to work in United States. With some exceptions, each profession requires a baccalaureate degree as an entry-level requirement. If a baccalaureate is required, experience cannot be substituted for that degree. In some professions, an alternative to a bachelor’s degree is listed. For some professions, experience is required in addition to the degree.

Q10. Can I stay permanently in USA on TN visa? Will I face any issues if I want to apply for a green card in United States?
A. “TN” status will only be granted if the period of stay is temporary. You cannot exhibit immigrant intent. If CBP or consular officer comes to know that you have an immigrant petition filed, you may not get a TN visa or may not be eligible to get an extension.

Q11. Am I eligible for an extension of sty under TN visa?
A. Yes. Applications for extension of stay are processed by the USCIS. When applying for them, Canadian citizens have two options: they may have their employer file a form at the closest regional Bureau of Citizenship and Immigration Services office. This option does not require leaving the U.S. OR Canadians may return to Canada to re-apply at the port of entry with the same documentation that is required for an original application. Either option is permissible.


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