H1B Visa FAQs & Myths

Whether you have an H-1B visa or want to apply for one, you need to distinguish fact from fiction when it comes to H-1B visa requirements, benefits, and obligations. To avoid costly mistakes with your H-1B visa, read further for the nine common misconceptions about H-1B visas and the truth about them.

Misconception #1: As long as I have a Bachelor degree, I qualify for an H-1B visa. Wrong! While a bachelor degree is one of the requirements for an H-1B visa, the position offered must demand a bachelor degree as minimum for entry into the position. In addition, your degree must match the position requirements. For example, if the normal requirement for an accountant is a bachelor degree in accounting, you would not qualify if your degree is in business administration.

Misconception #2: My potential employer must prove that it has attempted to recruit U.S. citizens through advertising before the H-1B petition can be approved. No. Generally, there is no recruitment requirement for H-1B petitions, with the exception of H-1B dependent employers and employers who received TARP funds. The labor certification process for permanent residence (green card) has a recruitment requirement which is often confused with H-1B requirements.

Misconception #3: Only large employers may obtain H-1B visas for its employees. Not true. Any employer may petition for an H-1B employee, regardless of size, so long as it is a U.S. entity and has a tax identification number issued by the Internal Revenue Service (IRS). Smaller employers may need to provide financial and business information to establish they are operational but there is no minimum business revenue required.

Misconception #4: All new H-1B petitions are subject to the 65,000 annual numerical limitations on H-1B visas. Not true. While there is a 65,000 annual limit to new H-1B visas issued, starting October 1 of each year (“H-1B cap”), there are exemptions from the H-1B cap (cap-exempt). In most cases, those workers that already hold H-1B status are exempt from the cap even if a new employer files an H-1B petition. Employers that are post-secondary educational institutions such as universities and colleges (including two-year technical schools) and their non-profit affiliates are exempt from the H-1B cap. Employers that are nonprofit research organization and government research organizations are also exempt. And, workers who will work at the locations of these organizations even though actually employed by for-profit companies are also cap-exempt. For example, physicians who are privately employed but work at university-affiliated hospitals will qualify for cap-exempt H-1B visas. Importantly, there are 20,000 exemptions available per year for H-1B petitions if the worker holds a master degree or higher from a U.S. educational institution (foreign degree equivalency is not sufficient).

Misconception #5: To qualify for the H-1B visa, I have to prove that I intend to return back to my home country after my visa expires. There is no such requirement. Non-immigrant intent is not required for H-1B status which means that you can intend to apply for permanent residence in the U.S. (and have already applied for permanent residence) and still obtain an H-1B visa.

Misconception #6: Once my employer files the H-1B petition, I can start work. It depends. If you already hold H-1B status and are in the U.S. working for a sponsoring employer, you can work for a new H-1B employer once that employer files the H-1B petition. Otherwise, you have to wait for the H-1B approval before legally starting work. For example, if you hold F-1 status and do not have any other work authorization document, you must wait for the H-1B approval before you can start work.

Misconception #7: I am on F-1 status with a practical training work permit (OPT) that expires on August 1, 2009. My employer wants to file an H-1B petition for me; however, because of the H-1B limit, the earliest start date for me with H-1B status will be October 1, 2009. I have to stop working on August 1. Wait! Under current rules, if your H-1B petition is filed before your F-1 OPT expires, you may continue working after the OPT expires. If your H-1B is approved for October 1, 2009, your status will be changed from F-1 to H-1B. If your H-1B is denied after your OPT expires, you must stop working.

Misconception #8: If I have an H-1B visa, I can work for any employer. Not true. An H-1B visa is employer dependent which means you can only work for the sponsoring employer. If you want to work for a new employer, the new employer must file an H-1B petition for you. If you want to work for a second employer at the same time as you work for your H-1B employer, e.g. part-time work, the second employer must file an H-1B petition for your concurrent employment.

Misconception #9: My employer has to employ me during the full period that my H-1B is valid. Sorry, there is no such thing as guaranteed employment. Subject to employment laws, an employer can dismiss an H-1B worker at any time during the validity period of the H-1B visa. However, in such a situation, the employer will be responsible for the worker’s reasonable costs of return transportation to their home country if the worker chooses to return. Also, if your employment is terminated, you lose your H-1B status unless you have a new employer who files an H-1B petition for you before you stop working.


Guest Author

Ann Massey Badmus

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10 thoughts on “H1B Visa FAQs & Myths

  1. Hi CJ,

    I have a question. I checked your blog for the answer but couldn’t find it. Here it comes: Under normal circumstances -supposing no extreme cases- How long does it take H1B to be approved after filing on 1st of April?? Could you give me a rough idea?

  2. Hi Emre,
    Well it depends on whether you pay for premium processing where they guarantee to process it within 15 days but if you don’t opt for that option, people in past years have tended to get official response back during May but that is certainly just an estimate as it depends on the nature your H1B visa petition.
    Good Luck,
    CJ

  3. Hi CJ
    I am a South African citizen with a diploma in beauty therapy. If i can find a job in the US which visa would I apply for? And does my international exam accreditations help?
    Thank you

  4. Hi Kaylene,
    Sorry for the delay in reply. It will be fairly difficult to find a job in the US with those qualifications as the H1B visa (which is the main work visa) is really geared towards professional work qualifications and specialty occupations with a minimum of a bachelors degree. Read here to learn more about the Bachelors Degree and Specialty Occupations criteria; https://visacoach.org/2009/05/22/e3-visa-the-bachelors-degree-specialty-occupation-conditions/.
    A temporary visa you may qualify for is the J1 visa under the Professional Career Training Stream and you can read more about that here; https://visacoach.org/2009/03/14/j-1-visa-internship-int-professional-career-training-pct-programs/ and https://visacoach.org/2010/02/04/j1-visa-how-to-find-an-internship-in-the-us/
    Yes International exam accreditations do help but you need to suffice the main criteria of any US visa first.
    Good Luck,
    CJ

  5. Hi CJ,

    I have a question. I checked your blog for the answer but couldn’t find it. Here it comes: Under normal circumstances -supposing no extreme cases- How long does it take H1B to be approved after filing on 1st of April?? Could you give me a rough idea?

  6. I am having 12 years of school education + 3 years of bachelor degree (Correspondence) + 4 years of IT experience. Am i eligible for getting H1B Visa?

  7. Does the Institution you work in have to pay a Fee Thousands of $$$) in order to file an H1B for his potential employee?

  8. Is it a big deal for the Institution (higher Education) to provide to an employee an H1B visa or sponsor him for one? How long it usually takes if filed by the end of May?

    Thanks

  9. Hi CJ,

    I am an Indian and have completed my BSc degree. What kind of job I can find in USA. Am I eligible for H1B visa?

    What else I have to provide? Can’t I go there first and then hunt a job?

    Please answer.

    Regards – Nitin

  10. Hello CJ,

    My question is that I am working for a nonprofit org (religious )right now, but my work content is not religious related, instead, I’m working as finance person. I wonder do I qualify for cap exempt in this situation?

    Thank you very much!

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