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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

H1B Visa Season FY2011 Tips for April 1, 2010

H1B visa season is hotting up again and we want to try to help all those foreigners who are seeking to work in the US now after a tough H1B Visa season FY2010 in 2009.

Already this year we have listed the most recent Top 25 Employer Sponsors of H1B visas to give you an idea of who most recently has been hiring foreign workers even during the tougher economic times of last year. Then we also covered some great H1B visa application filing FAQs as well as covered all the H1B visa petition supporting documents you need for a successful application.

There is every indication this year that things should go back more to normal due to the better economic conditions. This means that it is more likely you will need to get your H1B petition filed close to the April 1, 2010 filing date to ensure you have the best chance of being approved for a successful application.

What this means that even things like the H1B visa lottery may be reinstated this year if there is an over supply of application for the 65,000 H1B visa quota for the main group along with the additional 20,000 quota for those with US based advanced degrees (i.e. Master’s or higher).

This H1B visa lottery in past years has left many deserving foreigners and their employers with work approval so it is critical that you get your application early to avoid any random selection in the process.

Some other general tips for H1B visa season include;

  1. H1B visa Premium Filing: If you either have means to pay for premium processing or your prospective H1B visa employer sponsor on your behalf can on your behalf, then certainly do. This is where the USCIS guarantees a response of approval, denial or need for more information within 15 days of filing (otherwise they refund the money). This costs $1,000 and while it doesn’t directly mean your chances are better it does give your employer/attorney direct access to the USCIS assessing case officer. (you can’t do this on your own behalf). This of course tends to help the whole application process being approved and being done quickly
  2. Understand Specialty Occupation & Wage Requirements: Due to the tougher economic conditions there is definitely more of a focus from the USCIS and US Department of Labor (DOL) that these are enforced. Specialty occupation in its broadest sense can mean any occupation that requires and specifies as so a Bachelors Degree minimum requirement with a few exceptions. However it is important that role as defined in the your H1B application to the USCIS and prior ETA-9035(e) filing with the US Department of Labor to receive your LCA is as specialized as possible. The more generic your title and job duties, the greater the risk of denial either at these points or even when applying for your H1B visa at your US Consulate or Embassy Interview
  3. Beware of H1B visa Fraud: In years gone by many individuals and employers were more easily able to get away with either borderline following the rule H1B visa petitions or more fraudlent H1B visa applications. They were borderline and/or fraudulent in the areas of who was actually employing the foreigner, where their job sites would be, who was paying them, whether they were really employees or contract workers paid by the job, whether they were benched (meaning not working or being paid waiting for their employer to send them to a new role), etc. Currently there are more regular H1B visa site audits, additional scrutiny of applications at all levels from the DOL to USCIS and the US Consulates and more alarmingly recently H1B visa deportations of approved H1B workers.
  4. US Immigration & Employment Trends: Ensure that you are fully versed in the best locations and industry sectors to look for work in the US. We documents these immigration and employment trends recently and you will see that areas like Texas and Florida and then industry sectors like Health, Education, Green Energy and Internet are among the best places to search for jobs.
  5. US Job Applications: Understand the best places to look for work in the US, how to create a US style resume, issues and extension benefits if transferring from the F1 visa OPT program and finally great US job interview techniques

Good luck in this H1B visa season to all foreigners and we look forward hearing your stories and experiences as the season unfolds.