H-1B FAQs 2024

We have updated our H-1B FAQs to provide you with the most current and accurate information regarding H-1Bs. 

1. What is an H-1B and who is eligible to apply?

An H-1B visa is a non-immigrant work visa that allows U.S. companies to employ foreign workers in specialty occupations that require specialized knowledge and a bachelor’s degree or higher. To be eligible, applicants must have a valid job offer from a U.S. employer and meet the educational and professional requirements for the position.

2. What are the educational requirements for an H-1B visa?

To qualify for an H-1B visa, the applicant must have at least a bachelor’s degree or its equivalent in a field related to the job being offered. The degree must be from an accredited institution, and in some cases, relevant work experience may be accepted as a substitute for formal education. If the degree is from a foreign institution, it must be equivalent to a U.S. bachelor’s degree.

It must also be demonstrated that the position being offered typically requires a bachelor’s degree or is sufficiently specialized that only someone with at least a Bachelor’s degree could perform the role.

3. How does the H-1B lottery process work?

The H-1B lottery process is initiated when the number of visa applications exceeds the annual cap. USCIS conducts a random lottery to select petitions for processing. There are two separate lotteries: one for the regular cap of 65,000 visas and another for the master’s cap of 20,000 visas, reserved for applicants with a U.S. master’s degree or higher. Despite only 85,000 visas being available, USCIS typically receives around 500,000 registrations, making the lottery highly competitive.

The H-1B lottery begins in March each year. Employers with selected registrations can file H-1B cap petitions between April 1 and June 30.

4. What is an H-1B cap exempt employer?

An H-1B cap-exempt employer is an organization that is not subject to the annual H-1B visa cap, meaning they can sponsor H-1B visas without being limited by the lottery process. These employers typically include institutions of higher education, nonprofit organizations affiliated with such institutions, nonprofit research organizations, and government research organizations. This exemption allows them to hire foreign workers on H-1B visas at any time of the year, regardless of the cap.

5. My Employer has filed an H-1B cap petition for me. When can I start work?

Before you can begin working, you must first be selected for an H-1B visa and then have your application approved. Cap-subject cases are typically filed between April and June, with an expected start date of October 1 or within six months. If your case is selected in the second round, your start date could be delayed even further.

Unless you have another form of work authorization, such as OPT or STEM OPT, you cannot start working for your H-1B employer until your application is approved.

6. Is an Employer required to pay a certain wage?

Yes, every H-1B petition must be accompanied by a Labor Condition Application (LCA), which the employer files with the Department of Labor (DOL). The certification process typically takes 7-10 days. The employer is required to pay the H-1B employee either the prevailing wage or the actual wage, whichever is higher. The actual wage is what the employer pays to other employees with similar education, qualifications, and job responsibilities.

The wage determination depends on factors such as the job location, required education, experience, and any special skills or supervision involved. There are four wage levels established by the DOL, but most employers now file at either level 1 or level 2.

7. What is the Public Access file?

The Public Access File (PAF) is a collection of documents that employers must maintain and make available for inspection by the Department of Labor (DOL). It includes information related to an H-1B worker’s employment, such as the Labor Condition Application (LCA), the wage rate, and other attestations made by the employer. The PAF ensures transparency and compliance with H-1B visa regulations, helping to verify that the employer is adhering to the required wage and working conditions.

To learn more about these requirements please check out our latest article.

8. How long can a person stay on H-1B for?

Typically, once selected for an H-1B cap petition and approved you can remain on H-1B for a total of 6 years.  However, an individual can extend the H-1B beyond the 6-year limit if they meet one of the following criteria under the American Competitiveness in the 21st Century Act (AC21):

1. 365 days have passed since the filing of your Labor Certification (PERM), I-140 or I-485
2. You have an I-140 approval, and you are not able to adjust status, based on your current priority date.

Based on the 365-day rule an employee is entitled to a 1-year extension of their H-1B.  Based on an I-140 approval, an employee is entitled to a 3-year extension of their H-1B.

Alternatively, if you have been in the U.S. on H-1B for 6 years and then leave the U.S. for 1 year you become eligible for a new 6- year period of H-1B, however, your Employer would need to submit a new H-1B cap petition.  If selected and approved, you would be entitled to a further 6 years.

9. What is the cap-gap and who is eligible for it?

F-1 students with an H-1B cap petition filed on their behalf may get a cap-gap extension. It can extend a student’s F-1 status and their work permit through September 30.  Cap-gap refers to the time between the end of the student’s F-1 status and the start of the H-1B, usually Oct 1.

There are two types of cap-gap extensions:

1. Extension of F-1 status only. If you are in valid F-1 status at the time of filing H-1B (or you are within the 60-day grace period) then you will receive a cap-gap extension on your F-1 status.
2. Extension of F-1 status and OPT. If you are in valid F-1 status and possess a valid OPT, you will receive a cap-gap extension of both your F-1 status and OPT, allowing you to work until Sept 30.

Students will need a copy of their expired EAD card and Form I-20 endorsed for the cap-gap extension to continue working.

If the filed H-1B is denied, then individuals will have the standard 60-day grace period to depart from the US.

10. What are my options if my H-1B Employer terminates my employment?

USCIS provides H-1B workers with a 60-day grace period if they lose their job. If your H-1B employer terminates your employment, you have 60 days to find a new employer and file a new H-1B petition. However, if your work authorization expires before the end of the 60-day period, you must file by the expiration date.

During this 60-day grace period, you are generally considered to be in valid H-1B status. If you cannot secure a new job within 60 days, you are required to leave the U.S. at the end of the grace period.

Another option to provide individuals with more time is to file a change of status to B1/B2.  This can be requested for 6 months and provides additional time to secure new employment.  If you manage to find a new job and the COS to B1/B2 is still pending, your new employer can file an H-1B transfer in premium processing and USCIS will concurrently adjudicate the COS to B1/B2 along with the new H-1B transfer.

11. If an employee changes location, is the Employer required to file an H-1B amendment?

It depends on where the new location is and how long the employee will be working at the new location.  If the new location is within the same Metropolitan Statistical Area (MSA) then an amendment is not required.  However, the Employer must post the original LCA at the new work location. In this scenario, the terms of employment must remain the same.   If there is a change to the job title and/ or role then this may be considered a material change in employment which would trigger the need for an amendment.

If the new location is within a different MSA then the Employer would need to file an amendment with USCIS.  The amendment petition should be filed prior to the employee moving to the new location.

12. What is Short-term placement?

If the move to a new location is only temporary, then the employer may not need to file an amendment petition. An Employer can send an employee to a new location, but the job at the new location can’t exceed 30 days in a 1-year period. If the employee meets the following requirements, the placement may extend beyond 30 days but must not exceed 60 days.

(1) The H-1B employee continues to maintain an office or workstation at his/her permanent worksite.

(2) The H-1B employee spends a substantial amount of time at the permanent worksite in a one-year period; and

(3) The H-1B employee’s U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite.

13. If an Employer files a transfer petition, when can the employee start working for this Employer?

The employee can begin working for the new employer as soon as USCIS receives the H-1B transfer petition. Within 1-2 weeks, USCIS will issue a receipt notice confirming the petition’s receipt. In the meantime, the employee can verify with their new employer whether the filing fee checks have been cashed, which also indicates that USCIS has received the petition.

14. If an employee switches employers, do they need to get a new H-1B visa in their passport if they intend to travel?

No, individuals are permitted to use the H-1B visa in their passport for as long as it remains valid.  There is no need to obtain a new H-1B visa stamp because of a change in employment.  H-1B visas are not employer-specific.

15. Can a new Employer file an H-1B transfer for someone who has an H-1B extension currently pending?

Yes, a new employer can file an H-1B transfer for even if they have an H-1B extension currently pending. However, this is not recommended unless the original H-1B status is still valid.

For instance, if the person’s H-1B status is set to expire on September 20, 2024, and the current employer has already filed for an extension, the new employer should aim to file the transfer petition before September 20,2024, to increase the likelihood of approval.

If the new employer files the transfer in October 2024, while the extension is still pending, complications may arise. For example, if the extension was filed under regular processing and the transfer application is filed under premium processing, USCIS might issue a Request for Evidence (RFE), stating that they cannot approve the transfer until the extension is approved. This is because an individual must demonstrate valid H-1B status at the time of filing.

In this scenario, the transfer application relies on the approval of the extension. If the individual decides to switch employers and the original employer withdraws the extension, the transfer may be denied or approved only for consular processing.

16. What are the chances of an H-1B petition receiving an RFE and/or a denial?

Under the current administration, Requests for Further Evidence (RFEs), Notices of Intent to Deny (NOIDs), and denials have become much less frequent. If the case is properly prepared with all relevant information and documentation, the likelihood of facing challenges from USCIS is relatively low. However, it’s important to understand that not all RFEs or similar issues can be entirely avoided.

It’s also worth noting that a shift in administration, particularly if Trump were to return to office, could lead to a significant increase in the number of RFEs, NOIDs, and denials.

17. What options are available to someone whose H-1B is denied?

The following options are available following a denial of an H-1B petition:

1. Re-filing the H-1B petition- this is not available for an H-1B cap case.
2. Filing a Motion to re-open and/or a Motion to re-consider overturning the denial.
3. Filing an Appeal to the Administrative Appeals Office.
4. Contact USCIS Ombudsman if the case was denied in error.
5. Filing a Federal lawsuit against USCIS.

If you have a denial and would like to discuss any of the above options, please e-mail cprescott@patellegal.com.

18. What is a 221g?

A 221(g) refers to administrative processing and is often mistaken for a visa refusal. However, it is not a final decision but rather a delay tactic used by U.S. consulates. In some cases, the consulate may request additional documents before they can make a decision. In other instances, they may inform the individual that their visa is refused and that their case requires further administrative processing.

There is no set time limit for resolving a 221(g) case, and processing times can vary significantly. In the worst cases, individuals have been stuck outside the U.S. for 6-12 months after receiving a 221(g). If you receive a 221(g) notice, it’s crucial to consult with one of our immigration attorneys, who can advise you on the best course of action. 

19. How long can a person work while their H-1B extension is pending?

Individuals are authorized to continue working for up to 240 days while their H-1B extension is pending. However, if the extension is not approved within this period, they must stop working, although they are still permitted to remain in the U.S. To avoid this situation, it’s advisable to file the extension petition using Premium Processing or upgrade to Premium Processing well before reaching the 240-day limit.

20. What options are available to someone to work if their H-1B transfer is denied?

If the previous Employer has not withdrawn the previously approved H-1B and this remains valid, then an individual is permitted to go back to their original Employer and work as per the original terms and conditions of the H-1B filing.

However, if the previous Employer has withdrawn the old H-1B they cannot go back and work for them.  In this case, the new Employer could re-file or the individual could file with a completely different Employer.  However, because a person must be in valid status at the time of filing, any further petition is likely to be approved for Consular Processing.  This means leaving the US, going for stamping and then returning with a valid H-1B visa.

21. Is it possible to work for 2 separate Employers while on H-1B?

Yes, however, both employers will need to file separate H1B petitions.  This is commonly known as “Concurrent H-1B.”  The second Employer will need to file a concurrent H-1B petition with USCIS.  

For more information regarding this please check out this article.

22. What filing fees are required for an H-1B petition?

As of August 2024, the following filing fees are applicable to H-1B filings:

$460.00 Filing fee for employers with 25 or less employees or $780.00 if 26 or more employees.

$500.00 Fraud Fee*

$750.00 Training fee** for employers with 25 or fewer employees or $1500.00 if 26 or more employees.

$300.00 Asylum Program fee for employers with 25 or fewer employees or $600.00 with 26 or more.

$2,805.00 Premium processing fee (optional).

$4,000.00 This fee only applies to Employers who employ more than 50 employees, if more than 50% of those employees are in H-1B or L1 status.

*The Fraud fee is only applicable for employers seeking an initial grant of H-1B and is therefore not required to be paid for either an H-1B extension or an H-1B amendment.

**The Training fee is only applicable for employers seeking an initial grant of H-1B or for the first petition requesting an extension.  It does not have to be paid for either a pure amendment filing or for the second (or later) H-1B extension.

23. Who is responsible for the costs associated with filing an H-1B petition?

All filing fees, including attorney fees, must be paid by the employer, with one exception: the Premium Processing fee. The employee can pay the Premium Processing fee if the request for expedited processing originates from the employee rather than the employer. The costs of filing for an H-4 and/or EAD can be paid by the Employee or their spouse.

24. Can someone sponsor their own H-1B?

Yes, individuals can sponsor their own H-1B, even where they have a majority ownership in the company.  This has finally been acknowledged by USCIS.  On July 17, 2024, USCIS updated its FAQs making it clear that self-sponsorship is permissible.  For more details on this please refer to our previous article.

25. Is an Employer required to pay the H-1B worker if their current project comes to an end?

Yes, an employer must continue to pay the H-1B worker if they wish to keep the employee on staff. The Anti-Benching provisions mandate that an employer must continue to pay the full wage during periods of non-productive status. Benching, which involves not paying an H-1B employee due to a lack of work, is prohibited and may lead to a wage complaint being filed by the employee with the Department of Labor against the employer.

If an individual is benched without pay filing an H-1B transfer can become difficult.  Please check out our article which discusses this in more detail.

26. What steps does an employer need to take to properly terminate an H-1B worker?

If an employer wants to terminate an H-1B worker, they must effectuate a “bona-fide termination” by taking the following three steps:

• Confirm the termination in writing to the employee and inform them of their last day.
• Send a letter to USCIS confirming that the Employer would like to withdraw the H-1B petition.
• Offer to pay the employee the reasonable cost of return transportation abroad. (Abroad refers to the employee’s last place of foreign residence.)

For further information on this please check out this article.

Conclusion

Understanding the H-1B visa process is essential for both employers and employees navigating the complexities of U.S. immigration law. The H-1B visa offers a valuable opportunity for skilled foreign workers to contribute their expertise to the U.S. economy, but it also comes with specific requirements, deadlines, and regulations that must be carefully followed. By staying informed about the eligibility criteria, application process, and rights associated with the H-1B visa, applicants and employers can better position themselves for success. As immigration policies continue to evolve, staying up to date with the latest information will be crucial in making informed decisions and ensuring a smooth H-1B journey.

If you have questions about the H-1B visa please reach out to PLG Partner, Chris Prescott at cprescott@patellegal.com.