Q: Have there been any recent changes to the H1B Lottery Process?
A: As of December 2019, the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) made changes to simplify the H1B Visa Registration Process.
Q: What is a petition?
A: The largest categories of working visas (including H and L visas) require petitions to be filed with the USCIS by a company or organization in the United States.
A petition is the process by which the USCIS determines that you meet the basic qualifications for a particular visa. For example, it is through the petition process that the USCIS determines you have the educational background or its equivalent to qualify as an H-1B “skilled worker”. Petitions cannot be filed with the embassy; they must be filed in the U.S.
Q: What documents should I carry while coming back to the U.S., if I am traveling outside U.S.?
A: While entering back into U.S., you should be able to prove that you had been maintaining H1B status before leaving U.S., and you are going to be maintaining H1B status after entering into U.S.
Please carry the following documents:
- H1B approval notice of the current employer.
- Employment letter that mentions vacation approval from your current employer.
- Recent pay stubs. Last 3-4 pay stubs should be good enough.
- Copy of last year’s income tax returns and W2, if any.
- Contact details (name, address, phone number, email address, etc.) of your current employer.
Q: If I am on an H1B visa, how long can I stay out of the U.S.?
A: You can stay out of the USA for any duration you like, until the very last day that your visa is valid. Of course, if you do so, and your stay is fairly lengthy, this may raise questions in the mind of the inspecting USCIS officer as to whether you are still working for your H-1B petitioner, for instance.
Q: I am currently in India, and I have gotten an H1B visa approved through an employer in the U.S. Do I have to join them within a certain time frame?
A: Legally, there is no time frame to join your employer. You can join at any time within the validity of the H1 visa status. However, check with the employer how long they are willing to wait before hiring someone else.
Q: I am graduating soon. Should I use my Optional Practical Training (OPT), or should get an H1 from day one?
A: Use OPT completely. When searching for a job on OPT, you can work for any employer, and no paperwork with the government is required. Moreover, you save one year (or 36 months if you qualify under STEM graduate) of H1 that would be useful to you later. However, as H1B visa is lottery based, many people on OPT would prefer their employers to try to apply every year to have up to 3 years to be selected in a lottery.
Q: When does my 6 years on H1 start? From the day my first H1 was approved? Or when I enter the U.S. on H1?
A: Your 6-year clock starts from the day you enter for the first time on H1.
Q: My visitor visa (or student visa) was denied in the past. Now, I have received a job offer with a U.S. company, and my H1 is approved. Will my H1 also be rejected because of my previous rejections?
Q: What is the equivalent of a U.S. bachelor’s degree?
A: According to the Department Of Homeland Security (DHS), 3 years of progressively responsible work experience equals 1 year of education in an accredited U.S. degree program. While the U.S. bachelor’s degree takes four years, obtaining many Indian bachelor’s degrees require only 3 years. Hence, the Indian H1B or L1 applicant must ordinarily present a valid bachelor’s degree and proof of 3 years work experience in a field related to the proposed job duties. In special cases, the consular officer may waive this requirement.
Q: My H1B Employment Petition (USCIS Form I-797) shows an employment start date. How early can I apply for an H1B visa at the consulate?
A: You may apply for an H1B visa as soon as you receive the Form I-797. However your entry to the U.S. is restricted to 10 days prior to the start date as noted in the Form I-797 unless you are already working on an H1B visa and have applied for a revalidation.
Q: I received an H1B approval through one company and got it stamped as well last year. However, I never went to the USA. I am currently working in Germany. I would like to go to the USA and work there. Can I go to the USA without informing my current employer first?
A: You need to first find an employer who is willing to offer you a job and willing to sponsor you. After that, you need to get your H1B visa stamped. You will be able to go to the USA to work on an H1B only after that.
Even though not strictly required, professional ethics suggest that you should inform your current employer about your wish to join the company in the USA.
Q: Can I use the remaining years from a previously approved H1B?
A: Individuals who spent one year outside of the U.S. and did not exhaust the entire six year term can CHOOSE to be re-admitted for the “remainder” of initial six-year period without being subject to the H-1B cap. This policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006. The USCIS Memorandum stated:
C. H-1B “Remainder” Option
Section 214(g)(4) of INA provides that “the period of authorized admission as [an H-1B] nonimmigrant may not exceed 6 years.” INA section 214(g)(7) provides, in pertinent part, as follows:
Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.
In AAO Adopted Decision 06-0001, USCIS has confirmed that the six-year period of maximum authorized admission accrues only during periods when the alien is lawfully admitted and physically present in the United States.
8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum period of admission, a new petition may be approved only if the alien has remained outside the United States for one year. The statute, regulations, and current policy guidance, however, do not clearly address situations where an alien did not exhaust his or her maximum six-year period of admission.
There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either (1) to be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted or (2) seek to be admitted as a “new” H-1B alien subject to the H-1B cap.
Specifically, the “remainder” period of the initial six-year admission period refers to the full six-year period of admission minus the period of time that the alien previously spent in the United States in valid H-1B status. For example, an alien who spent five years in the United States in H-1B status (from January 1, 1999 – December 31, 2004), and then remained outside the United States for all of 2005, could seek to be admitted in January 2006 for the “remainder” of the initial six-year period, i.e. a total of one year. If the alien was previously counted toward the H-1B numerical limitations in relation to the time that has accrued against the six-year maximum period of admission, the alien would not be subject to the H-1B cap. If the alien was not previously counted against the H-1B numerical limitations (i.e. because cap-exempt), the alien will be counted against the H-1B cap unless he or she is eligible for another exemption.
In the alternative, admission as a “new” H-1B alien refers to a petition filed on behalf of an H-1B alien who seeks to qualify for a new six-year admission period (without regard to the alien’s eligibility for any “remaining” admission period) after having been outside the United States for more than one year. For example, the alien who spent five years in the United States in H-1B status (from January 1, 1999 – December 31, 2004), and then remained outside the United States for all of 2005, is eligible to apply for a “new” period of H-1B status based on his or her absence of at least one year from the United States. Most petitioners electing this option will seek a three-year H-1B petition approval, allowing for the possibility of later seeking a three-year H-1B extension. “New” H-1B aliens are subject to the H-1B numerical limitations unless they qualify for an exemption. See INA §§ 214(g)(1) and (g)(5).
Note: The burden of proof rests with the alien to show that he or she has been outside the United States for one year or more and is eligible for a new six-year period, or that he or she held H-1B status in the past and is eligible to apply for admission for the H-1B “remainder” time. Petitions should be submitted with documentary evidence of previous H-1B status, such as Form I-94 arrival-departure records, I-797 Approval notices, and/or H-1B visa stamps.
Q: I left the U.S. after my employer filed a “extension petition / extension of stay”, and the petition is still pending. I need to return to the U.S. now to continue my work. What are my options?
A: You must wait outside the U.S. to get your petition approved. Once you receive your new Form I-797 (Notice of Action), you can apply for a new visa to reenter the U.S.
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