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H-1B visa: Questions and Answers

By February 8, 2021May 20th, 2021H-1B and E-3 Visa
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H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  This visa category requires that the beneficiary (the foreign worker) have a bachelor’s degree, and the petitioner (the U.S. company) can employ the worker for up to six years.

Which nationalities can apply for an H-1B visa?

National of any country can apply for an H-1B visa.

Do I have to show that I have ties to my home country when applying for an H-1B visa?

No, you don’t have to prove that you have ties to your home country when applying for an H-1B visa. H-1B visa is a dual intent visa, meaning that H-1B workers can remain in the United States in lawful status even though they have immigrant intent, meaning the intent to reside in the U.S. permanently.

Do I have to have an Offer of Employment at the time I am applying for an H-1B visa?

Yes. At the time of applying for an H-1B visa you have to have an employment offer from a U.S. employer. You cannot come to the U.S. to look for a job on an H-1B visa.

Do I have to have a degree from a U.S. university to qualify for an H-1B visa?

No, you do not have to have a U.S. degree to qualify for an H-1B visa but you will have to submit evidence showing that your education is equivalent to at least a U.S. Bachelor’s degree in a specialty occupation.

Can I work part-time on an H-1B visa?

Yes, it’s possible to work part time on an H-1B visa, but this should be reflected on the Labor Condition Application. If you used to work full-time, and an employer/you now want to work part-time, a new LCA will have to be filed as well as an amended H-1B petition.

What is a cap-gap extension? Does the cap-gap apply to me?

The Cap-Gap extension only applies to people who are currently in the U.S. on F-1 OPT status, who were selected in the H-1B lottery, where their employer filed an H-1B Change of Status Petition. Under cap-gap, these applicants can remain in the U.S. as long as their H-1B petition is pending, but cannot work past September 30.

Does cap-gap extension apply to me if I am in the U.S. on a J-1 visa?

No. The Cap-Gap extension only applies to people who are currently in the U.S. on F-1 OPT status and does not apply to J-1 status holders..

Can I apply for an H-1B visa if I have a majority ownership in the sponsoring entity?

When applying for an H-1B visa, the petitioner will have to demonstrate that there is an Employer-Employee relationship. This his means that the petitioning company will have to show that it can hire, pay, fire, supervise and otherwise control your work.

If you are the sole operator, manager, and employee of the U.S. company, you cannot be fired by the petitioning company, and there is no outside entity that can exercise control over you, the company could not petition you for the H-1B visa, as it would simply not be able to demonstrate that it can control your work.

Do I have to keep working for the same H-1B employer that originally sponsored me? Can I find a new employer in the U.S. if I am in the U.S. on an H-1B status?

If your initial H-1B petition was approved by USCIS and you entered the U.S. in H-1B status (meaning that you started working for the H-1B employer who initially sponsored you for the H-1B visa on your start date), you can find a new employer who is willing to sponsor you for an H-1B visa. You do not have to keep working for the same employer who originally sponsored you for an H-1B visa.

If you find a new employer who is willing to sponsor you for an H-1B visa, the employer will have to file a Labor Condition Application and Form I-129 to USCIS. While this is often called a “transfer” it is really a brand new application.  If you want to have the petition decided quickly, either you or the employer can pay the Premium Processing Fee. This means, that USCIS will issue a decision on the case within 15 calendar days.

My place of employment is about to change. Does a new LCA & amended H-1B petition have to be filed with USCIS?

This will depend on whether the new place of employment is within the area of intended employment or no. Please see our blog post on this when you click here.

Please click here to read more about the H-1B visa.

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