H-1B FAQs

  1. What is the H-1B quota or H-1B cap?
  2. Who is exempt from the H-1B Cap?
  3. What fees must be paid when applying for an H-1B visa?
  4. When can I file an H-1B visa petition?
  5. How long is an H-1B visa valid for?
  6. Does an employer have any obligations or liabilities when filing for an H-1B visa?
  7. Can consulting companies send their H-1B workers to work at an off-site or client location?
  8. What other obligations does an H-1B employer have?
  9. Is there a grace period if I voluntarily resign?
  10. Is there a grace period if I am laid off or terminated?
  11. Does an H-1B extension have to be approved before my current H-1B expires?
  12. When is an H-1B amendment required?
  13. Does an H-1B Employer have to advertise and recruit and show that it cannot find a qualified U.S. worker?
  14. Can I use the H-1B visa to work for any employer or other employers?
  15. Does the H-1B have to be for full-time employment?
  16. Can I work for multiple employers?
  17. Can I sponsor myself for an H-1B visa?
  18. How easy is it to change jobs while on an H-1B visa?
  19. If I change jobs, am I subject to the H-1B cap again?
  20. What if I went to work for a cap-exempt institution and now want to transition to private industry?
  21. What if the H-1B quota has been reached, but I have previously held an H-1B visa?
  22. How can I extend my H-1B status beyond the 6-year limit?
  23. What visa will my family receive?

 

What is the H-1B Quota or H-1B Cap?

The fiscal year (FY) for USCIS starts on October 1st and ends on September 30th every year. There are 65,000 H-1B visas available per fiscal year. Out of the 65,000 H-1B visas, 1,400 are set aside for citizens of Chile and 5,400 are set aside for citizens of Singapore. An additional 20,000 H-1B visas are available to those who have earned Master’s degrees or higher degrees from U.S. universities. This H-1B “cap” or “quota” only applies to private industry H-1Bs.

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Who is exempt from the H-1B Cap?

Cap-exempt organizations are exempt from the H-1B cap and are not subject to the quota, which means they can apply for unlimited H-1B visas any time of the year. Cap-exempt organizations include the following:

  • Institutions of higher education (i.e. universities and colleges);
  • Non-profit organizations affiliated with institutions of higher education;
  • Non-profit research organizations; and
  • Government research organizations.

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What fees must be paid when applying for an H-1B visa?

The government filing fees for H-1Bs are as follows:

  1. $325 filing fee;
  2. $500 Fraud Prevention and Detection fee;
    • Applies to all new H-1B petitions (both private industry and cap-exempt organizations) and change-of-employer petitions, but not to extension requests;
    • One-time only — Once an employer pays the fee for a particular foreign national, it does not have to pay the fraud fee again;
  3. $750 or $1,500 ACWIA (American Competitiveness and Workforce Improvement Act) training fee;
    • The ACWIA fee depends on the size of the company — $750 if the company has 25 or fewer employees or $1,500 if the company has 26 or more employees;
    • Only applies to new H-1Bs, change-of-employer H-1Bs and the first extension request by the same employer;
    • Only applies to private industry H-1Bs;
    • An H-1B employer must pay the ACWIA fee — no exceptions;
    • Cap-exempt organizations are exempt from paying the ACWIA training fee;
  4. $2,000 Border Security Act fee;
    • Applies to cases filed before October 1, 2014;
    • Only applies to U.S. employers with 50 or more employees in the United States where more than 50 percent of employees are in H-1B and/or L-1 status.

Related fees:

  • $290 filing fee for H-4 spouse and/or children (per family, not per person); and
  • $1,225 Premium Processing Service fee (OPTIONAL) — Guarantees that the U.S. Citizenship and Immigration Services (USCIS) will adjudicate (issue an approval or request additional evidence) an H-1B petition on an expedited basis within 15 calendar days of receipt.

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When can I file an H-1B visa petition?

An H-1B petition may be filed up to six months prior to an employment start date. Since the USCIS fiscal year starts on October 1, virtually all private industry employers file H-1B petitions on April 1 (or during the limited filing period of the first 5 business days in April) requesting an October 1 start date. Even if approved before October 1, an H-1B worker cannot start working until on or after October 1.

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How long is an H-1B visa valid for?

H-1B visas are issued in 3-year increments and may be extended for another 3 years up to a maximum of 6 years. Any time spent outside of the United States on holiday or for business can be recaptured back.

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Does an employer have any obligations or liabilities when filing for an H-1B visa?

Yes. All H-1B employers are required to make the following attestations to the U.S. Department of Labor (DOL) on the ETA Form 9035E Labor Condition Application (LCA):

  1. Wages: An H-1B employer must pay at least the prevailing wage or the employer’s actual wage, whichever is higher, for the occupation.
    • The wage cannot include discretionary bonuses, commissions, benefits, etc.
    • No “benching” — the employer must pay an H-1B worker for non-productive time and cannot bench the H-1B employee for — lack of work, economic hardship, period of time spent while waiting to obtain a license, or any other reason due to a decision of the employer.
    • Benefits offered to H-1B workers must be available on the same basis and criteria as those offered to similarly situated U.S. workers.
  2. Working Conditions: An H-1B employer must provide working conditions for H-1B workers which will not adversely affect the working conditions of workers similarly employed.
    • Working conditions include hours, shifts, vacation periods, and benefits such as seniority-based preferences for training programs and work schedules.
  3. Strike, Lockout or Work Stoppage: An H-1B employer must attest that there is no strike, lockout, or work stoppage in the named occupation at the place of employment.
  4. Notice: An H-1B employer must attest that a notice to the union or to workers has been or will be provided in the named occupation at the place of employment. A copy of the LCA will be provided to each H-1B worker employed pursuant to the application.
    • The required notice must be provided on or within 30 days before the LCA is filed.
    • Where there is no collective bargaining representative (i.e. union) for the occupational classification in which the H–1B worker will be employed, the notice must be posted for 10 business days in two conspicuous locations at each worksite where an H–1B worker will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity). In the case of consulting companies which assign H-1B workers to an off-site or client worksite location, the mandatory notice must be posted at all off-site and/or client worksite locations.
    • A copy of the LCA must be provided to the employee on or before the first day of employment.

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Can consulting companies send their H-1B workers to work at an off-site or client location?

An employer assigning H-1B workers to an off-site or client worksite location must comply with all statutory and regulatory requirements, including the mandatory posting requirements at each worksite locations.

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What other obligations does an H-1B employer have?

  • ACWIA training fee: It is an H-1B employer’s responsibility to pay the ACWIA training fee. The H-1B employee cannot pay the ACWIA fee or reimburse the employer for this expense.
  • Payment for nonproductive time (Benching): Employers are prohibited from placing H-1B workers in unpaid status due to lack of assigned work, economic hardship or lack of a license. However, H-1B workers may request unpaid leave as a result of conditions unrelated to employment, such as sabbaticals or maternity or paternity leave.
  • Payroll start date: The obligation to place an H-1B employee on payroll begins no later than 30 days after admission into the United States if entering on the approved H-1B. If already in the United States and granted a change-of-status, the H-1B employee must be placed on payroll within 60 days after the date a worker becomes eligible to work for the employer.
  • Termination of Employment or Lay Off:
    • If an H-1B employee is terminated or laid off, the employer must offer “reasonable costs of return transportation” to the H-1B employee’s residence abroad. However, the employer is not required to offer “reasonable costs of transportation” to the H-1B employee if an H-1B worker voluntarily resigns or if the H-1B employee’s employment ends upon petition expiration;
    • H-1B employers must notify USCIS of the termination and withdraw the H-1B petition as well as the LCA.

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Is there a grace period if I voluntarily resign?

No, there is no grace period if an H-1B worker voluntarily leaves employment. Prior to actual termination (i.e., the employee’s last day of work), the H-1B worker must immediately file a petition for H-1B employment with a new employer or change status to an alternative visa category or leave the United States.

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Is there a grace period if I am laid off or terminated?

Yes. Effective January 17, 2017, H-1B workers who are laid off or terminated are eligible for a grace period of up to 60 days during the period of petition validity or until the existing H-1B status ends, whichever is shorter. You cannot work during this grace period. The grace period may only apply one time per authorized nonimmigrant validity period. You may file an H-1B transfer with a new employer during the grace period and you may start working for the new company upon filing of the petition based on the H-1B portability provision. If the new H-1B is approved, you may be eligible for an additional grace period of up to 60 days in connection with the new authorized validity period.

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Does an H-1B extension have to be approved before my current H-1B expires?

No. Generally, an H-1B extension must be filed before the expiration date of the H-1B petition. The timely filing of an H-1B extension petition automatically authorizes continued employment authorization to the H-1B employer and employee for up to 240 days, starting from the current H-1B expiration date, or until the petition for extension is adjudicated, whichever comes first.

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When is an H-1B amendment required?

An H-1B amendment may be required in some of the following scenarios:

  • Demotion or promotion or any kind of material changes to an H-1B worker’s job duties or job title;
  • Change in physical location of an H-1B worker’s worksite;
  • Change in hours from full-time to part-time or from part-time to full-time;
  • Merger, acquisition or any type of corporate restructuring; or
  • Reduction in salary.

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Does an H-1B Employer have to advertise and recruit and show that it cannot find a qualified U.S. worker?

No. Under the H-1B program, the employer is not required to advertise or recruit and show that it cannot hire a qualified U.S. worker.

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Can I use the H-1B visa to work for any employer or other employers?

No. The H-1B, like virtually all nonimmigrant visas, is employer-specific, which means that H-1B workers can only work for the company that petitions or sponsors them for the H-1B visa.

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Does the H-1B have to be for full-time employment?

No. An H-1B visa can be for part-time or full-time employment. There is no minimum number of hours required under the regulations to qualify for a part-time H-1B. Part-time employment is anything less than 35 hours.

As a practical matter, an H-1B worker must make at least a living wage (i.e. can support himself/herself) or must be able to show that s/he has sufficient means to support himself/herself.

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Can I work for multiple employers?

Yes, concurrent employment allows an H-1B professional to work for multiple employers, but each employer must file a separate H-1B petition and pay all the required government filing fees. Part-time, concurrent H-1Bs are commonly used by graphic designers, veterinarians, healthcare professionals such as dentists, physical therapists, and nurses, to name a few.

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Can I sponsor myself for an H-1B visa?

No. In order to file an H-1B petition, an employer must establish that a valid employer-employee relationship exists. This is shown by the ability of the employer to hire, pay, fire, supervise or otherwise control the work of the H-1B worker. If the H-1B worker owns the company or has a majority stake in the company, the H-1B cannot be filed as there is no outside entity that can exercise control over the H-1B worker.

Examples of successful H-1B petitions include:

  • An H-1B worker has a majority stake in the company, but reports to a Board of Directors which “controls” the work of the H-1B worker and has the ability to fire the H-1B worker; or
  • An H-1B worker has a minority stake in the company.

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How easy is it to change jobs while on an H-1B visa?

H-1B portability makes it easy to transfer an H-1B from one company to another. An H-1B worker may “port” or “transfer” his/her H-1B upon filing of a new H-1B petition with USCIS. The H-1B worker does not have to wait for the approval of the new H-1B petition to commence employment for the new employer.

In order to qualify for H-1B portability:

  • The H-1B worker must have been lawfully admitted into the United States;
  • The new employer must have filed, on behalf of the H-1B worker, a new H-1B petition before the H-1B worker’s H-1B status epxired; and
  • The H-1B worker must not have worked without USCIS authorization.

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If I change jobs, am I subject to the H-1B cap again?

An H-1B worker is not subject to the H-1B cap when changing jobs if the H-1B worker has previously been “counted” towards the H-1B cap.

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What if I went to work for a cap-exempt institution and now want to transition to private industry?

H-1B workers who are employed by cap-exempt organizations, such as universities, will be subject to the H-1B cap unless they have previously been “counted” towards the cap. This means that they cannot “port” their H-1B to a private employer if there are no available H-1B visas — i.e. when the cap for the current fiscal year has been reach. Such H-1B workers may have to wait and file a new H-1B under the next fiscal year. In some limited situations, an H-1B worker may be able to work concurrently for the cap-exempt institution and the private industry employer.

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What if the H-1B quota has been reached, but I have previously held an H-1B visa?

If you have previously held H-1B status and did not use the full six-year period, you may apply for an H-1B for the remaining unused time from the six-year period — this is also called the “remainder option.” Individuals in this situation are not subject to the H-1B cap because they have already been “counted” in a previous year’s cap. For example, someone who works for three years on an H-1B decides to go back to school as an F-1 student to obtain an MBA. After graduation, this person can apply for an H-1B for the remaining three years and is not subject to the cap and can apply at any time of the year.

If an H-1B worker leaves the United States and is physically abroad for at least 1 year, that person can either apply for a new cap-subject H-1B to obtain a new 6-year period, or that person can choose to apply for the remainder of unused time without being subject to the H-1B cap.

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How can I extend my H-1B status beyond the 6-year limit?

An H-1B worker may extend status beyond the 6-year maximum limit if certain conditions are met.

  • Recapturing time — Any time spent physically abroad for vacation or business, during the validity period of an H-1B can be recaptured and added back towards the six-year period.
  • The American Competitiveness in the Twenty-First Century Act or “AC21” allows a foreign national to obtain an extension of H-1B status beyond the 6-year maximum period in 2 situations:
    1. If a labor certification or I-140 has been filed and pending for at least 365 days prior to the H-1B worker’s 6th-year max date, an H-1B may be extended in 1-year increments, until the green card is approved; or
    2. If an I-140 has been approved but the H-1B worker is subject to retrogression, an H-1B may be extended in 3-year increments, until the green card is approved.

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What visa will my family receive?

Spouses and minor children (under the age of 21) of H-1B workers, are eligible for H-4 status. H-4 derivatives are allowed to attend school. However, only certain H-4 spouses are eligible to work — for more information, please read our H-4 Spouses Employment Authorization FAQs. H-4 derivatives may also apply for their own work visa if they qualify under any of the other nonimmigrant visa categories.

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