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H1B Visa FAQs & Myths

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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 Deportation News

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The recent deportation of a number of Indian H1B IT workers from Newark and JFK airports has sent shock waves through the H-1B community. H-1B employers, employees and their attorneys alike are flabbergasted by this brazen act of official highhandedness where individuals arriving on H-1B visas were singled out even before their primary immigration inspection, put through a sham questioning, forced into making coercive statements, issued expedited removal orders, and sent back! Their crime? They landed in the U.S. with legitimate H-1B visas to work for genuine U.S. entities, but at a location other than their office, i.e., at a client site or third party site!

H1B employees working at a client site or a third party site is a practice as old as the H1B program itself, and is not a violation of the regulations when supported by appropriate documentation. What is shocking is that the disgraceful action by CBP inspectors was triggered by an overzealous (mis)interpretation of a recent Memo issued by Donald Neufeld, Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services (USCIS).

At its core, the Neufeld Memo underlines the requirement of an employer-employee relationship that would last the entire period of the foreign individual’s H-1B stay in the United States. In such a relationship the employer should have the “actual” control or the “right” to control the employee, to hire, fire, pay, and to decide when, where, and how the employee will be employed.

Based on the experience of this writer in processing thousands of H-1B petitions over a period of more than 15 years (and attending to the resultant issues), this situation can be addressed with a little foresight, logical planning, and preparation and maintenance of appropriate documentation. Also, H1B employees should be educated on how to answer questions from overbearing government officials. Pardon me for saying this, a small minority of companies, through a lackadaisical attitude towards adhering to the regulations, seem to bring a bad name to the entire H-1B community and to the H-1B program itself, resulting in such sweeping governmental actions that affect legitimate H1B employers and put the lifestyle of unsuspecting employees and their families in jeopardy. Moreover, this supplies fodder to the anti-H-1B bogey that is becoming more and more vociferous in the light of rising unemployment in the United States. We, at our office, always make it a point to emphasize to H-1B employers and employees alike to strictly adhere to the governing regulations and requirements of the H-1B program.

As stated above, the focus of the CBP enforcement action is as to who the actual employer is. It should be noted, in situations where an individual works at a location different from the petitioning company’s office, the question is whether such petitioner employer has the “actual” control or the “right” of control over the H1B employee. When the H-1B employee works at a client site, or a third party site, the H-1B employer may not always be able to exercise “actual” control over the individual’s employment. But to maintain the H-1B status and be in compliance with the regulations, the H1B employer needs to prove the “right” to control, if not the “actual” control. There are various ways to meet the requirements of actual control or right to control, as we have been advising our clients, by ensuring acquisition, usage, and maintenance of appropriate documents. It takes logical planning under effective legal guidance.

In conclusion, we would like to remind our clients and other readers of this article that the government’s enforcement of the regulations can be expected to become stricter in the future, and appropriate proactive steps will save the employers and employees alike a lot of hardship and aggravation.

Guest Author

Morley J. Nair