**One Point Advice** It’s that time of the year again! Common Questions about the H-1B Visa

  • When is the best time to submit the H-1B application to the USCIS? 

The earliest an H-1B application can be submitted to the USCIS is six months prior to the selected H-1B start date. For employers and employees who are subject to the cap, it is strongly advised to submit the H-1B application on April 1st for the start of the new fiscal year on October 1 when the new batch of 65,000+ H-1b visas become available. RBL has already begun taking consultations and preparing for the April 1, 2016 deadline. Please contact us if you would like to discuss the possibility of an H-1B visa.

  • Who can an H1B visa holder (foreign national) work for?

An H1B worker can only work for the petitioning US employer (sponsor company) and only in the activities (job duties) described in the H-1B visa application. The sponsoring US employer may place the H1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H1B workers may work for more than one US employer, but must have a Form I-129 petition approved by each employer.

  • What are the government fees involved in obtaining an H1B visa, and who pays them?

The USCIS filing fee is currently US$325. In addition, the USCIS imposes a Fraud Prevention and Detection fee of US$500. Additionally, the USCIS charges an ACWIA fee of US$750 for companies that have less than 25 employees, and US$1,500 for companies with more than 25 employees. Furthermore, if the company has 50 or more employees and more than 50% of employees are H-1B or L-1 workers, then there is an additional filing fee of $2,000. Generally, all fees must be borne by the employer.

  • Can I bring my dependents on H-1B visa?

Yes, you may bring your dependents on an H-1B visa. Your spouse and unmarried children under 21 years old are entitled to an H-4 visa and they can stay as long as you maintain valid H-1B status.

  • Can someone stay beyond the six years allowed by an H-1B visa?

 Yes, there are options for staying beyond six years in H-1B visa status. You can “recapture” any time you spend outside the U.S. during your six-year period. For example, if you spend a month each year outside the U.S., after six years, you can recapture those six months to gain additional H-1B time. Your employer also can pursue an immigrant visa (green card) on your behalf, and you will become eligible for additional H-1B status once certain milestones are reached in the green card process. Additionally, if you spend one year outside the U.S., your six-year clock will restart. The exact possibilities depend on your specific situation and should be reviewed with an RBL attorney.

  • Can I change jobs after I get my H-1B?

An H-1B approval is employer-specific. It permits an H-1B worker to work only for the employer that filed the petition. If you decide to change employers, the new employer must file a new H-1B petition on your behalf. Consult with an experienced RBL immigration attorney if you are planning to terminate your employment or learn that your employment is being terminated. The H-1B is also position-specific. Therefore, if your H 1B employer wishes to significantly change your job duties or other conditions of employment after securing approval of your H-1B petition, the employer is required to submit an amended petition to the USCIS. In both of these cases, under certain conditions, you MAY be eligible to be paid in the new position after the employer has received the USCIS receipt notice for the H-1B petition (this is called “H-1B portability”).

  • If my job ends earlier than expected, may I still remain in the U.S.?

No, there is no grace period for workers in H-1B status. If your job ends before the end of your H-1B petition validity period, your employer must report this to the USCIS and you must leave the U.S. or obtain another visa status immediately. If your employer terminates your job sooner than the end date given to the USCIS, the employer must pay the expenses of your return travel to your home country.

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