What is the H-1B Visa?
The H-1B visa is designated for individuals working in a specialty occupation, which is defined as the position requiring at least a bachelor’s degree in a specific or related field (or its equivalent) and that the foreign national being sponsored has at least a bachelor’s degree in that specific or related field (or its equivalent).
Examples of Specialty Occupations:
H-1B Requirements
The position requiring at least a bachelor’s degree in a specific or related field (or its equivalent).
In addition, individuals must have completed a bachelor’s degree or its equivalent in a field of study related to the position. If the individual obtained the degree overseas, or it is not a four-year bachelor’s degree, an education evaluation must be completed to verify that through education or experience the individual has the equivalent of a bachelor’s degree.
Additionally, the salary for the position must meet minimum prevailing wage requirements.
H-1B Initial Period of Stay
The initial period of stay for an H-1B visa holder in the U.S. is typically three years.
H-1B Renewal
After the initial period of stay, the employer may file a renewal or extension for the H-1B employee. This should extend the stay by up to three more years. H-1B visa holders may stay in the U.S. for six years in H-1B nonimmigrant status.
H-1B holders who have completed select portions of the green card application process may be able to extend their status beyond the six-year max-out date.
H-1B and Green Card
We recommend that you speak to your attorney if the temporary nature of the assignment changes.
H-1B Petition and Filing Fees
As of June 2020, these are the current H-1B fees:
The H-1B Lottery
Most first-time H-1B petitions are subject to the annual visa lottery. Annually, the government issues 85,000 total visas. This number is broken down into two groups: 20,000 visas are reserved for H-1B beneficiaries with master’s degrees and 65,000 are for everyone else.
The lottery used to be held annually every April. However, USCIS has implemented new changes. In late 2019, USCIS announced it would implement its brand-new H-1B Electronic Registration System for the FY 2021 H-1B lottery.
This system involves major changes, starting first with employers having to electronically register and pay an associated $10 registration fee. Employers need to electronically register for advanced degrees as well.
Under this new registration process, employers submit basic information about their organization and each requested worker. USCIS will then open an initial registration period of March 1 – March 20. USCIS will then notify petitioners who were selected. At this point, USCIS provides detailed instructions to complete the registration process, including key dates and timelines.
Another important change is the order in which USCIS selects electronic registrations. USCIS now selects master’s registrations first before moving onto the regular cap. USCIS first implemented this process adjustment during the FY 2020 H-1B lottery.
H-1B Cap Exemption
The sponsored position must be one of the following in order to qualify for an exemption from the H-1B cap lottery:
Additional examples where cap exemption applies include petitions for changes of employer, an extension with the same employer, amendment petitions with no request for extension and corrections of a previously approved H-1B of service errors. These situations typically arise when the H-1B nonimmigrant has already received H-1B nonimmigrant status through the cap lottery process.
H1B transfer is a new petition to change your H1B employer. Once approved, you will receive a new i797 notice of approval with a new i94 attached to paper i797.
The answer to “Can H1 transfer be rejected” is Yes, it can be rejected.
You can start working for new employer based on H1B transfer receipt immediately if your i94 has not yet expired.
Once your i94 expires your status will be counted as “period of authorized stay” based on your pending H1B transfer with USCIS.
Recommendation is to start working for new employer only after approval.
You CAN file H1B transfer after i94 expiry and start working for new employer too.
But we strongly recommend to NOT start working for H1B transfer until it has been approved.
There is no 240 day limit applicable for H1B transfer cases if filed before i94 expiry with USCIS.
You can keep working for new employer even after 240 days if the petition is still pending with USCIS.
https://egov.uscis.gov/processing-times/
H1B Extension, Amendment, Transfer and consular processing times are updated daily for using the official USCIS processing times and data shared by real H1B applicants in various forums and trackers online. H1B amendment is same as H1B extension for processing timeline calculation.
If you had already started working for new H1B transfer employer, you are immediately OUT OF STATUS from the denial date.
Your period of authorized stay starting from your i94 expiry date to denial date ends too.
You will start adding “Unlawful presence” to your name after the denial.
Also, you cannot file another extension, or transfer, or change of status to some other visa category as your are currently “Out of Status“.
Even if you file an H1b extension or transfer now, it will be rejected as you filed it on the day when your status was “Out of status”.
If you started working for new employer on receipt, you are still out of status and the period of authorized stay ends after denial.
But, unlawful presence will not start as the I-94 has not expired.
If your old employer has not withdrawn your H1B yet, you can go back into H-1B status by starting work for your old employer again.
You can re-file h1B transfer but, you cannot start working as your current status is “Out of status’ after denial.
H1B transfer refile, if approved, will be approved with consular processing meaning that you will have to go out of US and get H1B stamped in passport to re-enter.
The H1B transfer I-797 approval notice should either have an I-94 or consular processing information. If you did not receive new i94, it means you’ll need to leave the US, obtain an H-1B visa stamp abroad, and then re-enter the US.
If you file second H1B transfer before the first one reaches a result, you can start and keep working for new employer.
If the first H1B transfer is denied, the bridge between first H1B transfer and second one is broken and hence your second H1B transfer will also be denied ultimately.
Your “Unlawful presence” begins on the day of first H1B transfer denial in this case.
With Premium Processing, H1B transfer application will get result within 15 calendar days.
With Regular processing, there is no fixed timeline. The result timeline will depend on USCIS service center’s workload.
https://www.am22tech.com/uscis/current-h1b-processing-times/
Premium processing is available for H1B Extension / Amendment / Transfer cases and its processing time is 15 calendar days.
Raise USCIS SR – Outside Normal Processing Time
If your ‘case received date’ is before the date (worst case) mentioned above, you should raise a service request with USCIS to check why your case has been delayed. This could mean your case is taking longer than other similar cases and may be stuck in administrative processing.
https://egov.uscis.gov/e-request/displayONPTForm.do?sroPageType=onpt
If your are laid off by H1B employer, you have 60 days grace to find another H1B sponsor. Does not matter how much processing time an H1B transfer takes place, you can start working immediately based on receipt on or before 60th day.
1. What are the basic requirements of the 60-day grace period?
To qualify for the 60-day grace period, you would need to have a valid I-94 and a “cessation” or termination of employment.
Note, if you are transferring to a new company (Company B) by your own choice and Company B files the transfer and prepares to onboard you prior to your resignation from Company A, you would not need to utilize the 60-day grace period as there is no failure to maintain status.
2. So what does the 60 day-grace period regulation actually mean?
The 60-day grace period was a regulatory creation to provide better retention of high-skilled nonimmigrant workers. Prior to the 60-day grace period creation, if an H-1B employee was terminated on a Monday and couldn’t leave the United States until Saturday that employee would have been deemed to violate their nonimmigrant status immediately upon termination and there was no time frame to depart the US to prevent this.
With the creation of the 60-day grace period, there is an opportunity for the employee to save and maintain their status. If the employee has a valid I-94 they can seek to have a petitioning company file a new H-1B for them or seek a new nonimmigrant status within the 60-day window. This will be viewed as maintaining status.
3. Is the 60-day grace period a guarantee?
No! The 60-day grace period is discretionary, and based on the introductory language of the regulation, DHS can “determine whether facts and circumstances may warrant shortening or refusing the 60-day period on a case-by-case basis. If DHS determines credible evidence supports authorizing the grace period, DHS may consider the individual to have maintained valid nonimmigrant status for up to 60 days following cessation of employment and grant a discretionary extension of status or a change of status to another nonimmigrant classification.”
While USCIS’ authority is discretionary, there has been a high success rate with 60-day grace period requests. While nothing is guaranteed, if you have a valid I-94 and there is a cessation of employment, you should be able to get an extension or change of status approved based on the 60-day grace period.
4. When does my 60-day grace period start?
The 60-day grace period begins on the date the H-1B beneficiary receives notice they are terminated and stops working pursuant to this termination.
For example, if your employer notifies you on May 4 that you will be terminated in 2 weeks on May 18, your 60-day grace period will start May 18.
5. My I-94 is expired, can I utilize the 60-day grace period?
No! In order to use the 60-day grace period, you have to otherwise be maintaining nonimmigrant status. This means that you have to have a valid I-94 and, other than the termination of you employment, you cannot have violated your nonimmigrant status.
6. I was terminated on May 4, my I-94 is still valid, but expires June 4, can I use the full 60-day grace period?
No! You must have a valid I-94 for the duration of the 60-day grace period. In the above scenario, your grace-period would end on June 4.
7. Can I change status, for example to H-4, during this 60-day grace period?
Yes! As the regulation considers you as maintaining status during this 60-day grace period, you can change status. Please note, that you will still have to prove your maintenance of status and may receive an RFE asking about your status if you have not submitted sufficient proof initially.
8. How many times can I use the 60-day grace period? My I-94 is still valid, so can I use the 60-day grace period as much as I need?
No! The 60-day grace period can only be used “once during each authorized validity period.” This means once per H-1B approval.
For example: If you have an H-1B with Company A valid until July 6, 2020 and get laid off, you can use the 60-day grace period to transfer to Company B. Now, let’s say Company B gets approved until May 4, 2023 and in September 2020 they have to lay you off. You can now use the 60-day grace period again with this new validity period with Company B because Company B’s H-1B was approved
Alternatively, if you have an H-1B with Company A valid until July 6, 2020 and you get terminated, and you file a transfer to Company B during your 60-day grace period, but the Company B transfer was denied, you cannot use a second 60-day grace period based on Company A’s approval. You do not qualify for a 60-day grace period for Company B as there was no “authorized validity period” since Company B’s petition was denied.
9. My spouse is on H-4 and is working pursuant to the H-4 EAD. I was just terminated from my employer and in the 60-day grace period, can my spouse continue to work pursuant to the EAD?
Most likely yes! This is a topic which has caused a lot of debate amongst attorneys with many different viewpoints as to both the authorization and the risks involved.
Presuming a new H-1B petition is filed on behalf of the H-1B employee during the 60-day grace period, and presuming USCIS uses their discretion and grants the extension of stay, it is viewed as if the H-1B employee was maintaining status during the entirety of the grace period. Given this, the H-4 spouse was authorized to work as the H-1B spouse was viewed to have maintained status. In light of this analysis, it is likely that the H-4 spouse can work during the grace period.
This however is not without risk. If the H-1B extension of stay is denied because USCIS determines that they should not utilize the discretion given to them, the H-1B spouse will have been determined to have failed to maintain status. Given this, the H-4 spouse will be viewed to not have maintained status and thus any work during that 60-day grace period would be viewed as unauthorized. The determination that the H-1B spouse maintained status pursuant to the 60-day grace period is discretionary and will not be determined until the H-1B is adjudicated. This creates a risk for the H-4 spouse if they do choose to work during the grace period.
10. I have a valid I-94 with Company A, I filed a transfer to Company B, but it was denied. I transferred to Company B without being terminated so I haven’t used my 60-day grace period, what options do I have at this time?
You have a few options at this time.
Option 1: As always, you can depart the United States and look for a company that will file a new H-1B. Alternatively, you can depart and re-enter the United States on a different nonimmigrant status.
Option 2: You can return to Company A. If Company A is willing to continue your employment, you can return back to Company A and continue working. Assuming all terms and conditions of your employment remain the same, you can do this without filing an amendment. No transfer will be needed if Company A’s application has not been withdrawn.
Option 3: There is a possible option of filing a new transfer to Company B and arguing that you qualify for the 60-day grace period based on the Company B denial. This option requires a full analysis of your case, and the facts involved, and you should consult your immigration lawyer to determine if this option is best for your case.
https://www.am22tech.com/h1b-60-days-grace-period-uscis-rule/
It takes 7-10 calendar days to process Admin processing cases after visa is approved by visa officer.
https://www.am22tech.com/h1b-visa-interview-approved-online-status-administrative-processing/
If you case is pending for result with USCIS and your 240 days after i94 expiry are fast approaching, we strongly recommend to upgrade your application to ‘Premium Processing’ at 200 day mark. This will help you get a result before your 240 day limit and avoid stopping work.
H1B Amendment + Extension and transfer pending applications can keep working after 240 days.
https://www.am22tech.com/240-day-rule-uscis/
Check if you are eligible for DropBox facility in India.
Consular Proc = Visa (Stamp or visa foil) to be issued outside USA in a US Embassy.
https://www.am22tech.com/us-visa-dropbox-eligibility/
An individual working outside the U.S. is not subject to U.S. immigration laws. Therefore, it is permissible for a foreign national to work for their U.S. employer while outside the country. While working for the U.S. employer an individual will not be accruing time on H-1B, as they are not physically present in the United States. Specifically, the time you spend working abroad does not count towards your six year maximum H-1B limit. One should be aware that while they may not be subject to U.S. immigration laws they are still subject to the laws of the country they are working in for tax purposes.
When making the decision to work outside the U.S. while on H-1B one should still be mindful of potential repercussions upon re-entry. For example, if one remains outside the U.S. for an extended period of time they may be questioned upon reentry as to whether or not they are still employed by their U.S. employer. If one intends to remain outside the U.S. for a month one should document their remote work as a way of confirming your H-1B sponsor still needs your services. Another issue to consider is payment. If your US payroll is still being run while outside the U.S. it could lead to USCIS alleging you were still on H-1B, even while outside the U.S. A good way to counter this issue would just be to maintain proper documentation regarding your travel abroad. However, if you plan to be outside the U.S. for a long duration, such as six months or more, one should consider having a local payroll set up to ensure no tax issues occur in the country you are working in.
In conclusion, working outside the U.S. for your H-1B sponsoring company is legal from a U.S. immigration perspective. When performing such work one should consider the amount of time they plan to spend outside the U.S. and whether or not their U.S. payroll will be run. Overall, working outside the U.S. for a short period of time, such as a few weeks to a few months, should not create any issues when attempting to re-enter. To ensure no issues arise it’s a good idea to maintain documentation of the work performed to confirm you have proof available, should questions arise regarding your employers need for your services.
The rapid changes in technology have meant that the world is growing smaller every day. With the push of a button, we can communicate with individuals around the world nearly instantaneously. These incredible advancements in technology have meant that many jobs which in the past could only be performed by people located within the United States are no longer limited to geographic boundaries. Each day, thousands of people around the world, in nations like India and China, provide important services in the United States. These workers are not subject to U.S. labor laws or immigration laws which require work authorization before you can start working. This drastically lowers the cost of doing business and promotes working from another country compared to working from the United States.
Compared to people providing services in the United States from other countries, people who arrive in the United States and then attempt to work face significant hurdles that must be overcome. Current work authorization rules are governed by the location of the worker and not where the worker provides services.[i] Therefore, a worker living in India or China can provide services within the United States without needing any work authorization or any documentation from the U.S. government. In comparison, individuals who are not citizens of the United States or lawful permanent residents must have been admitted to the United States under a variety of legal classifications before they can accept employment.[ii]
The U.S.’s focus on the location of the worker compared to where the services are provided is the norm across much of the world. To focus on where each individual worker is providing services in our increasingly connected world would lead to massive government regulation and overreach into companies engaged in offshore or providing international services.II It is highly unlikely that these employment laws will be changed from their focus on the location of the worker at any time in the recent future.
[i] https://www.law.cornell.edu/cfr/text/8/274a.12
[ii] https://www.mofo.com/resources/publications/anti-outsourcing-laws-in-the-usa-attempts-to-keep-jobs-and-data-on-us-soil.html
U.S. consulates are set up around the world to assist and protect U.S. citizens and facilitate trade and friendship between the people of the United States and foreign country. There are more than 20 nonimmigrant visa types for people traveling to the U.S., and many more immigrant visa types for those coming to permanently stay in the U.S.
In order for a foreign national to enter the U.S., they must first qualify and be issued a U.S. visa by a consulate in their home country.
Q: What is consular processing?
A: Consular processing means that you apply for the visa at a U.S. consulate in your home country instead of filing an application with USCIS. If you are outside the U.S., your default option to enter the United States is to apply for a visa through consular processing.
Q: You received your I-797 approval notice without an I-94 attached, now what?
A: If you have an approval notice without an attached I-94 that means you were not granted the status of the visa classification you requested. You must schedule an appointment with a U.S. consulate to go for visa stamping in order to obtain and enter the U.S. on the requested visa.
Q: Do I have to go to the consulate listed on the I-797B approval notice?
A: No. The consulate listed on the approval notice is a recommendation based on the provided consulate on the Form I-129. You are free to schedule an appointment at any U.S. consulate while abroad. For a listed of U.S. consulates, go to https://www.usembassy.gov/.
Q: How long is it taking for the U.S. consulate to take an appointment?
A: Visa appointment wait times vary with each U.S. consulate. To check the wait time of your U.S. consulate, please visit https://travel.state.gov/content/travel/en/us-visas.html.
Q: What do I need to bring to my visa interview?
A: Each U.S. consulate’s website provides a list of documents that should be presented during the interview specific to the visa category you are seeking to qualify for. The documentation required can vary depending on the consulate, but generally includes:
•Appointment email confirmation from the consulate;
•Copy of the completed DS-160 form;
•Digital color passport-size photo with white background;
•Proof of application fees payment;
•Original I-797 Approval Notice;
•Valid passport;
•Copy of nonimmigrant petition and supporting documents filed by your employer;
•Common additional documents such as recent pay statements, employment verification letter, education documents, experience letters, to name a few. Family members applying for dependent visas such as H-4 or L-2 must present an original or certified copy of the birth and marriage certificates at the time of the interview.
Q: My H-1B cap-subject petition was approved. Do I need to go to my home country for my initial H-1B visa stamping?
A: Generally, we recommend beneficiaries to go to a U.S. consulate in their home country for their initial H-1B visa stamp for reasons that the consulate in the home country understands the foreign education system and is better suited to evaluate the beneficiary’s education documents.
Q: What if I have a U.S. Bachelor’s or Master’s degree, can I go to Canada or Mexico for my initial H-1B visa stamp?
A: If you have a U.S. Bachelor’s or Master’s degree, you can try to go to Canada for your initial H-1B visa stamp. However, Mexico does not allow any third-country nationals (a citizen of a country other than Mexico) to apply for their initial visa category in any of the U.S. consulates in Mexico. Third-country nationals residing in the United States can only apply for renewal of visas in Mexico.
Due to the long processing times and the lack of premium processing for most of last year, many diligent employers have been left concerned over how long their employees with pending petitions are authorized to continue working. In many cases, these H-1B beneficiaries had a timely filed extension that has been left pending adjudication by USCIS for long enough that their I-94 has since expired.
Can the H-1B employee still work when they have a pending extension of status request but an expired I-94?
Thankfully, USCIS has provided guidance known commonly as the 240 day rule. Generally, the employee may continue working for the same employer for up to 240 days after the I-94 expired OR until USCIS makes a decision on the petition, whichever is sooner.
For example, Employee Joe’s employer timely filed an extension petition on August 1. Joe’s I-94 then expired on October 1, but the extension filed in August is still pending! In this scenario, Employee Joe would be authorized to continue working up to 240 days past October 1. However, if the pending petition was adjudicated and denied on October 25, Joe’s work authorization would end on October 25. In this scenario, Employee Joe would lose his work authorization on October 25 despite the 240 day clock extending well beyond that date because the rule only allows for continued work authorization up to whichever date occurs first.
When exactly does the 240 day rule apply?
At first glance, this 240 day rule may appear to conflict with the portability provisions provided under AC-21 for H-1B petitions. Generally, this provision allows employees to immediately begin working once a new amendment or change of employer petition is filed for them, presuming the new petition was filed while the employee was maintaining valid H-1B status.
Amendment petitions can include an extension of stay request and change of employer petitions usually include an extension of stay request – so are these extensions also subject to the 240 day rule? Do employers/employees need to remain cautious if the employee began working under the portability provisions and the pending amendment or change of employer petition starts approaching that 240th day post I-94 expiry? The answer to both these questions would be no.
The official rule from USCIS only speaks of the 240 day rule if you are continuing employment with the same employer, thus suggesting that the 240 day rule only applies to H-1B petitions for continuation of previously approved employment without change with the same employer. Beneficiaries of timely filed H-1B amendment, change in previously approved employment, and change of employer petitions would be allowed to continue working while the petition remains pending without worry of the 240th day mark after I-94 expiry.
Employers of H-1B, H-1B1, and E-3 nonimmigrant employees must comply with Department of Labor (DOL) requirements regarding record keeping. These records should be kept as part of the company’s H-1B Public Access Files (PAF) that are made available to the public upon request. It is important to keep these records up to date and accurate as the DOL’s Employment and Training Administration (ETA) has the right to review and audit the files. Additionally, proper maintenance of a PAF for an employee can provide strong evidence in the event of a DOL Wage and Hour Division investigation.
What Records Must be Kept?
20 CFR § 655.760(a) states that “the employer shall make a filed labor condition application and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or at the place of employment within one working day after the date on which the labor condition application is filed with DOL.” (emphasis added). The PAF can be kept as a physical file or can be done as a digital document.
20 CFR § 655.760 provides the exact list of documents that must be added, completed, signed, and maintained:
1.Original signed LCA
•The employer must retain the original signed LCA in the public access file.
2.Rate of pay for the H-1B worker
•The employer must retain a statement listing the exact wage to be paid to the worker in actual salary and not an estimate or wage range.
•This should match the LCA and is typically base annual salary.
3.Description or summary of the actual wage system
•“Actual wage” is a technical term for the average wage that the employer pays all other individuals with similar experience and qualification for the specific employment in question.
•In determining the actual wage level, the employer can consider experience, qualifications, education, job responsibilities and function, specialized knowledge, and other legitimate business factors.
•This memo must include enough information about the employer’s method for calculating the actual wage to provide a “full and clear” explanation. â—¦At a minimum, this should identify the job that the nonimmigrant work holds and then identify the job title and job level that the nonimmigrant worker falls under due to the job duties, the worker’s education, experience, and other factors.
â—¦The salaries of all employees who fall within the same title and job level are then averaged to determine the “actual wage.”
4.Prevailing wage rate and its source.
•The employer must submit a full and clear explanation of the system the employer used to set the “prevailing wage.”
•The prevailing wage is “the going rate” or the average paid to similarly employed workers in the same geographical location.
•The OES survey that is posted on the OFLC online data center satisfies this requirement.
5.Documentation that the notice requirement was satisfied.
•Employers must post the LCA in at least two conspicuous locations at the worksite for at least 10 business days.
•The employer should keep a record indicating that the LCA was posted at the worksite(s), who posted it, where it was posted, and for how long.
6.Summary of benefits offered to U.S. workers and H-1B workers. â—¦Employers should include a brief statement that all employees are provided with the same benefits and provided a summary of what those benefits are. Alternatively, if similarly employed workers are provided with the same benefits regardless of immigration status, then state this and provide a summary of the benefits offered.
In addition to the above records that must be kept for all LCAs, there are a few specific records requirements that are part of 20 CFR § 655.760 that only apply to certain situations.
7.Summary of the entities included as a “single employer.” â—¦If the company utilizes the definition of “single employer” as addressed in the Internal Revenue Code, the employer must keep a list of any entities included as part of the single employer in making the determination as to its H-1B dependency status.
8.Notice of corporate changes. â—¦If the employer undergoes a change in corporate structure, they must include a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities, and undertakings under the LCAs filed by the predecessor employing entity. This must be kept with a list of each affected LCA, its date of certification, a description of the actual wage system, and the FEIN of the new employing entity.
9.H-1B dependent and/or willful violator employer â—¦If an employer is an H-1B dependent company, based on DOL regulations and guidance, and/or a willful violator, and indicates on the LCA(s) that only “exempt” H-1B nonimmigrants will be employed, the company must keep a list of such “exempt” H-1B nonimmigrants.
â—¦If the company is not filing as exempt, they must keep a record of the recruitment methods used and the time frames of recruitment of U.S. workers.
Once an H-1B case is approved, there are additional documents which should be kept as part of the public access file:
1.Copy of the H-1B worker’s pay statements and W-2 forms
2.Explanation of any deductions made from the wages, if applicable
•If any legal deductions are made from the wages, a sheet explaining the deduction should be inserted, with an explanation.
•While not required, companies should also keep records of time off requests to show why a beneficiary did not receive payment for a period of time.
3.Copy of termination notice, if applicable
•In the event of a termination of an H-1B worker’s employment, the notice of termination to USCIS (H-1B withdrawal letter) should be inserted into the PAF.
•Documentation showing any liquidated damages or penalties sought or collected from terminated H-1B workers, including relevant contracts, demands, lawsuits, and settlement agreements, if applicable, must be included.
How long must these records be kept?
A copy of a nonimmigrant worker’s PAF must be kept for one year beyond the expiration (or withdrawal) of the LCA. These records must be kept, maintained, and made available for the public. Payroll records must be kept for three years beyond the expiration (or withdrawal) of the LCA. The documents should be retained at the employer’s principal place of business in the United States or at the place of employment. The location will be governed by the box marked on the LCA noting where the records will be kept.
If your U.S. master’s degree is from a private, for-profit university or an unaccredited school and you obtained your H-1B approval under the Masters Cap exemption, you may run into problems obtaining an H-1B extension. The U.S. Citizenship and Immigration Service (USCIS) is taking a second look at H-1Bs approved under the Masters Cap exemption after some petitions appear to have been approved in error. For those cases where the initial H-1B petition was approved under the Masters Cap and the degree used to qualify for the exemption was from a private, for-profit school or an unaccredited university, the USCIS could deny the H-1B extension on the grounds that the worker was never actually counted towards the H-1B numerical limitations and is now subject to the H-1B quota. USCIS could also potentially revoke the approved H-1B petition.
On October 1st of every year, the U.S. government makes available 65,000 H-1B visas for the upcoming fiscal year. In addition, there is an advanced degree exemption provided to the first 20,000 petitions filed for an individual who has obtained a U.S. master’s degree or higher.
However, not all U.S. master’s degrees are created equal when it comes to qualifying for this exemption. The school issuing the master’s degree must meet the definition of an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965.
According to section 101(a), an institution of higher education is an educational institution that is, among other things, a public or other nonprofit institution and is accredited by a nationally recognized accrediting agency or association or has been granted pre accreditation status by such an agency or association recognized for granting pre accreditation status. Under this definition, a university that is private and for-profit or that is unaccredited is not considered an institution of higher education.
If your school is a private, for-profit institution or it is unaccredited and you obtained an H-1B approval under the Masters Cap, you should contact a qualified immigration attorney as soon as possible. With the new filing window opening on April 1, 2014, you may need to consider filing a new H-1B petition under the Bachelors Cap in order to avoid future problems with your H-1B visa. In addition, if you are a current F-1 student or recent graduate and are planning to file an H-1B petition in the upcoming filing window, consult with an attorney before filing under the Master CAP exemption if you attended a private, for-profit university or your school is unaccredited.
The U.S. Department of Education has published a list of regional and national accrediting agencies that are recognized by the Secretary as reliable authorities concerning the quality of education or training offered by the institutions of higher education or higher education programs they accredit. Here is a link:
http://www2.ed.gov/admins/finaid/accred/accreditation_pg6.html
In order to qualify for the advance degree exemption, or the Master’s cap, the beneficiary must have earned, at the time of filing, a Master’s or higher degree from a qualifying U.S. institution of higher education as defined in 20 USC 1001(a).[1] By regulation, the U.S. degree must be issued by an institution of higher education that is a public or other nonprofit institution. The institution must also be accredited by a nationally recognized accrediting agency or granted a pre-accreditation status. For the latter point, it is important to distinguish that the school must have been accredited, or in pre-accreditation status, at the time the degree was conferred. If the otherwise qualifying school was properly accredited at the time a student graduated, but then later that school lost accreditation, this does not impact that student’s eligibility for the Master’s cap.
Below are some common scenarios with the Master’s degree and determining eligibility for the Master’s cap exemption:
As you can see, simply obtaining a Master’s or higher degree from a U.S. school does not guarantee the beneficiary is actually eligible for the Master’s cap exemption. If the Master’s degree is from a U.S. school that is for-profit and/or unaccredited, the beneficiary would not qualify for the Master’s cap and would need to file under the regular H-1B cap.
In recent years, USCIS has issued a number of denials and revocations of H-1Bs wrongly approved under the Master’s cap. USCIS has even gone as far back as reviewing initial H-1Bs approved years ago - despite a history of subsequent H-1B amendment/extension approvals - to check if the beneficiary actually qualified for the Master’s cap exemption at the time. It is apparent that even when USCIS failed to properly vet the initial cap-subject petition, there is substantial risk that USCIS will later on catch the mistake and then act accordingly to remedy the issue, most likely by revoking the H-1B.
Yes. This is possible through Concurrent H-1B Employment.
How does Concurrent H-1B employment work?
If an individual is in valid H-1B status with company A, company B can file for Concurrent H-1B employment. Company B must obtain a certified Labor Condition Application (LCA) from the Department of Labor and file its own separate H-1B petition with USCIS. Company B would check, “New concurrent employment” on Form I-129 as shown below.
Under H-1B portability rules, the H-1B worker may begin work with the Concurrent H-1B employer as soon as the H-1B petition is received by USCIS. If for any reason the H-1B petition for concurrent employment is denied, the H-1B worker would be required to stop working for company B, but may continue working for company A.
What are the requirements for Concurrent H-1B employment?
The requirements are no different than any other H-1B petition. For example, company B is still required to establish that a bona-fide employer-employee relationship exists, all prevailing wage requirements are met, and the position is a specialty occupation, requiring at least a Bachelor’s degree in a field related to the position. The H-1B worker must also qualify to accept the job offer in the specialty occupation by:
Demonstrating completion of a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
Holding a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation; or
Having education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree.
When required, the H-1B worker must provide an unrestricted state license, registration, or certification, authorizing the worker to fully practice the specialty occupation.
How many employers can an H-1B worker work for through concurrent employment?
Although there is no set limit on how many H-1B employers an individual can work for, the H-1B worker will still be required to maintain H-1B status throughout employment. Therefore, H-1B workers must be realistic regarding how many hours per week they are required to work for each H-1B employer.
Can an H-1B worker work full-time for 2 H-1B employers through concurrent employment?
There is not a maximum number of hours an H-1B holder can work. Therefore, an H-1B worker can technically have 2 full-time positions under concurrent employment. Note, it is possible that USCIS will deny the concurrent H-1B petition for full-time employment if it does not appear possible to work 2 full-time jobs (A full-time week is 40 hours per week, unless the employer can demonstrate that less than 40 hours per week is full-time employment in its regular course of business. In no event would less than 35 hours per week be considered to be full-time employment).
Therefore, where an H-1B holder is working full-time with company A, it may be more prudent for company B to file for concurrent part-time employment.
Can an H-1B worker work part-time for 2 H-1B employers through concurrent employment?
Yes, an H-1B worker can hold 2 part-time positions under H-1B concurrent employment. Anything less than 35 hours per week is considered part-time employment.
Can an H-1B worker work remotely for multiple H-1B employers?
Yes, an H-1B worker can work remotely for multiple H-1B employers as long as an LCA and H-1B petition are properly filed to include the remote work location and all LCA posting requirements are met.
Can an H-1B petition for concurrent employment be filed if an initial H-1B petition was selected in the lottery?
An H-1B petition for concurrent employment can be filed once the initial H-1B petition with company A is approved and the individual is in valid H-1B status (beginning no earlier than October 1st).
Due to the unexpected unavailability of work, employers may need to consider terminating their H-1B employees.
Temporary layoffs, furlough, or benching of an H-1B employee due to unavailable work is not permissible. Sponsoring H-1B employers are under strict liability when it comes to paying their H-1B employees even during a nationwide emergency.
If an employer chooses to terminate an H-1B employee, the employer must follow the three essential steps for a bona fide termination:
The employer must notify the H-1B employee of the termination in writing;
The employer must notify USCIS of the termination in writing; and
The employer must offer in writing (preferably provide a check) to pay the H-1B worker for the reasonable costs of return transportation.
Sponsoring H-1B employers should take all necessary steps to ensure LCA compliance and that their H-1B employees are properly paid as work continues to be available, or properly relocated to a different work location following LCA requirements here, or properly terminated, if necessary.
If you are presently on F1 (OPT) and your H-1B petition has been selected in this year’s lottery and filed or approved and if your OPT is expiring sometime from the time of H1B Applied date and October 1st, and you have a STEM degree, you may be wondering whether you should file a STEM extension of your OPT or rely on the cap gap to get you through.
The automatic cap gap extends your current OPT employment authorization to September 30th if:
Pros of sticking with the Automatic Cap Gap
Cons of sticking with the Automatic Cap Gap
Pros of filing the STEM OPT Extension
Cons of filing the STEM OPT Extension
The choice is yours and really depends on how comfortable you are with your H-1B process. If your employer sponsor has a good track record of H-1B approvals (you can check on the USCIS employer data hub at: https://www.uscis.gov/h-1b-data-hub), is a well-known company, the job is clearly a specialty occupation, your education is in the exact field needed for the job, and your job outlook is relatively secure, you probably don’t need to file the STEM OPT extension. On the other hand, if your employer sponsor is a small company or a start-up, doesn’t have a good track record of approvals, it’s a little questionable whether the job is a specialty occupation, your education is kind of related but not an exact match, or you foresee possible job instability, you may want to go for the STEM extension just in case.
Data in this link is NOT accurate (atleast for our company records). So, please make a judgement carefully.
https://www.uscis.gov/h-1b-data-hub?
In response to the recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC, USCIS is expected to implement new guidance for employers of H-1B workers in the event of a change in the employee’s work location. This precedent decision holdsthat an employer must file an amended H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to an H-1B employee’s change of worksite location.
The question then becomes, when is a new LCA required?
Not every change in work location necessitates the filing of a new LCA. The determination centers around whether the new worksite location steps out of the current metropolitan statistical area (MSA).
Metropolitan Statistical Areas
MSAs are designated by a large metropolitan city and include any nearby countries that significantly contribute to the economic and social function of the core city. According to the federal Office of Management and Budget (OMB), a city with a population of at least 50,000 may be designated as the core city, and any nearby counties must send at least 25% of its workers into the core city or vice versa. The OMB’s object is to categorize groups of countries that have strong working relationships together under one identifiable area—an MSA.
The OMB has provided a list of all MSA designations on their web site at http://www.white.house.gov/omb and population statistics are available on the Census Bureau’s web site at http://www.census.gov/population/metro.
A Step-by-Step Guide
To quickly check which MSA designation your worksite location (city or county) is in follow these steps:
Conclusion:
Therefore, if you check the intended new work site location for an H-1B employee and it does not match the previous MSA, then you will be required to file a new LCA which necessarily requires an amended H-1B petition under the new USCIS guidance.
Documents to be provided by Employer:
001) I797 (Latest Original)
002) Contract (YES-Employee)
003) Contract (YES - Mid Vendor)
004) Contract (YES - Client)
005) Employer Letter
006) Vendor Letter
007) Client Letter
008) Employer Tax Returns (2 Years)
009) LCA
010) I-129
011) Petition Letter
012) Resume
013) W2 (All)
014) Paytubs (Last 6 Months)
015) Any other Project Related documents
Own Documents to be carried by Employees:
001) All previous H1B (Original)
002) Passport Original (All passports)
003) All Education documents Original
004) Experience Letters (All Previous jobs)
005) Paystubs (2019, 2018)
006) W2 / Form-16 - All
007) Client ID (Present Employer ID/Client ID)
008) Tax Returns-Personal (last 3 years)
009) Last 6 months bank statement
In most circumstances, anyone applying for a nonimmigrant visa must apply in person at a U.S. consulate or embassy and be interviewed by a consular officer. In the context of applying to renew a visa, however, the interview requirement may be waived under the visa interview waiver program (IWP). This program, sometimes referred to as the drop-box option, can make the visa renewal process easier and more convenient.
Eligibility Criteria for Interview Waiver Program
To qualify for the IWP, the applicant typically must meet ALL of the following requirements:
Eligibility Requirements Can Vary By Consular Post:
The requirements to qualify for the IWP can vary from one consular post to the next. For instance, in India, a prior visa refusal only prevents an individual from being eligible if the refusal occurred after the applicant’s most recent visa issuance. Meanwhile, the U.S. consulates in China do not allow L-1 visa applicants to use the IWP. Many consular posts also do not grant an interview waiver if the applicant’s prior visa was issued before the applicant’s 14th birthday.
Other Exceptions to Interview Requirement:
Apart from the criteria discussed above, there are other categories of visa applicants who may not be required to attend an in-person interview. A visa applicant under the age of 14 or older than 79 generally is exempt from the interview requirement. The interview requirement also may be waived for one who is applying for a diplomatic, NATO, or international organization visa.
Interview Waiver is Discretionary:
Even if the applicant meets the basic interview waiver criteria, the particular U.S. consular post abroad still may require an interview. The waiver of the interview remains a discretionary matter. Further, simply meeting the eligibility requirements does not guarantee that the consular post will issue the visa. Therefore, a visa applicant should always be prepared to personally attend a visa interview.
This is the list of documents needed for VISA filing based on different VISA category. Clink on the link below to check the list of documents needed for different VISA category.
The question for many is whether or not they are eligible for unemployment benefits should the unexpected happen.
Work-authorized visa holders do pay into their company’s unemployment insurance, but unfortunately, not all are eligible to use those benefits. To be eligible for unemployment, you must have an unrestricted right to work in the United States—which means there are no conditions on whom you can work for or where you can work.
Employees who are authorized to work based on their H-1B, L-1, TN, E, etc. visas are restricted to the specific employer sponsoring them. They are not allowed to work for another employer or move locations outside the MSA, unless the appropriate steps are taken by the sponsoring employer to file an LCA and/or Form I-129 with USCIS. Any new terms and conditions of employment must be approved by USCIS before an employee can begin working. Therefore, those on H-1B, L-1, TN, E, etc. visas cannot file for unemployment benefits.
In contrast, dependent visa holders who have a valid Employment Authorized Document (EAD) card have an unrestricted right to work in the U.S. For example, H-4 and L-2 EAD holders are able to take any job available in the U.S. without restrictions, and this flexibility in employment makes them eligible for unemployment benefits assuming the following: 1) H-4/L-2 EAD holder loses their job, 2) their spouse continues to work to maintain H-1B/L-1 status, and 3) their EAD is still valid. The H-4/L-2 EAD holder can request unemployment benefits, but only until the expiration date of their valid EAD card.
Given that USCIS’ public charge rule went into effect on February 24, 2020, the follow-up question is whether or not applying for unemployment is considered a public benefit. It does not. In their policy manual, USCIS clearly states that it does not consider unemployment benefits in the public charge inadmissibility determination.[1]
As a reminder, all U.S. regulations regarding nonimmigrant and immigrant visas remain enforced, so it is important to maintain status and compliance to all regulations as the COVID-19 pandemic continues.
[1] https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-10.
You can check the average Case Processing Time on your case with USCIS.
To check this go to the below link:
https://egov.uscis.gov/processing-times/
You need to know the below before you can check the Processing times:
There are two main visa categories: immigrant visas and nonimmigrant visas. The type of visa that is sought will depend on the purpose of the travel.
Immigrant visas are issued to foreign nationals who come to take up permanent residence in the U.S. These individuals intend to live and work in the U.S. permanently.
Nonimmigrant visas are issued to foreign nationals who seek admission to the U.S. for a temporary stay and for a specific purpose. This is where the concept of “immigrant intent” plays an important role. There is a presumption that all individuals seeking admission to the U.S. have immigrant intent. Immigrant intent is the intention to remain in the U.S. permanently. Applicants must rebut this presumption by demonstrating they have a residence in a foreign country which they have no intention of abandoning. Some factors that consular officers consider when determining whether an applicant has immigrant intent are family ties, employment ties, financial ties, property ties, and social/cultural ties in the home country.
An example of nonimmigrant visas are F-1 student visas. Consider this scenario: A foreign national was admitted to the U.S. on an F-1 visa. While still on F-1, the foreign national finds an employer to sponsor him/her for an immigrant visa. This can raise immigrant intent issues if the foreign national departs the U.S. and then tries to seek admission to the U.S. again as a student.
However, there are some nonimmigrant visas where immigrant intent does not apply. These nonimmigrant visas allow for “dual intent.” The dual intent doctrine says that an individual can be present in the U.S. temporarily AND have the intention to immigrate permanently in the future. An example of a dual intent visa is the H-1B visa. An H-1B visa holder maintains temporary nonimmigrant status in the U.S. but can pursue the process toward permanent residence status.
B-1 Business Visitor
Grants FNs short trips to the United States to conduct business matters, including: contract negotiations, short-term training, attending conferences and in-person consulting. An FN can’t engage in productive work activities or receive a salary from a U.S. source under any circumstance.
Visa Waiver Program: Most citizens in select countries, such as Japan, Portugal, South Korea and the United Kingdom, can travel to the United States for a stay of 90 days or less without a business visitor visa. Travelers must first verify eligibility by completing the Electronic System for Travel Authorization (ESTA) application. For a list of other visa waiver countries, visit: http://www.cbp.gov/travel/international-visitors/esta
E-3 Certain Specialty Occupation Professionals from Australia
A visa category that grants Australian nationals the ability to work in the United States if the visa holder is offered a specialty occupation that requires at least a bachelor’s degree or its equivalent in a specific field and meets the qualifications for the position.
E2 Treaty Investor
A visa category that allows managers, supervisors, executives, essential employees or investors from select treaty countries, such as Egypt, Belgium and Colombia, to temporarily travel and stay in the United States to conduct business. For a list of treaty countries, please visit: http://travel.state.gov/content/visas/english/fees/treaty.html
The United States maintains commerce and navigation treaties with certain countries around the world to encourage mutual trade and business negotiations.
EB-1 Priority Workers
A green card category available to priority workers with extraordinary expertise in the sciences, arts, education, business or athletics. This classification is also available to outstanding professors or researchers and multinational managers or executives.
Testing the labor market through the PERM (Program of Electronic Review and Management) Labor Certification process is necessary for select green card categories, such as EB-2 and EB-3. The three sub-categories within the EB-1 green card are exempt from this process.
EB-2 Advanced Workers
A green card category available to FNs who meet the criteria for a position which requires exceptional ability in the sciences, arts or business, or those that require an advanced degree, such as master’s degrees or bachelor’s degrees and five years of post-bachelor’s work experience. In addition, people can qualify for an EB-2 if they are seeking a National Interest Waiver.
EB-3 Skilled Or Other Workers
A green card category available to skilled workers and professionals looking to fill a job position that requires a bachelor’s degree or foreign equivalent. Unskilled workers who perform positions that are not temporary or seasonal in nature are also eligible.
H-1B Person In Specialty Occupation
A commonly used work visa that allows FNs in specialty occupations, such as engineers and computer developers, to seek temporary employment in the United States. This visa category is very popular and, as a result, it’s subject to a cap on the number of new visa applications processed each year.
85,000 = The H-1B cap
The government accepts slightly under 65,000 petitions each year and an additional 20,000 petitions for individuals who possess a U.S. master’s degree.
H-1B1 Free Trade Agreement Professional From Chile Or Singapore
A subset of the H-1B category that offers a special visa classification for the U.S. Free Trade Agreement with Chile and Singapore. Nationals of these countries in specialty occupation roles may seek temporary employment in the United States under the H-1B1.
J-1 Internees and Trainees
The Exchange Visitor (J) non-immigrant visa category is for foreign nationals approved to participate in work-and study-based exchange visitor programs.
L-1A Intracompany Transferee For Executives Or Managers
A visa classification available to employers wishing to transfer managers and executives from a foreign entity to a U.S. branch and who have been employed with the foreign entity for at least one year.
During the L-1A and L-1B application processes, the employer must establish a relationship between the foreign and U.S. entities. To save time, HR professionals can apply for Blanket L certification before filing the L-1 visa petitions to get a head start on the application process.
L-1B Intracompany Transferee For Employees With Specialized Knowledge
A visa classification available to employers wishing to transfer individuals with specialized knowledge within foreign entities who have a corporate relationship with the U.S. entity and who have been employed with the foreign entity for at least one year.
O-1 Individuals With Extraordinary Ability Or Achievement
A visa category for individuals employed in the sciences, education, business and athletics who display an extraordinary ability or achievement, or those who have an extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry.
P-1A Internationally Recognized Athlete
This visa category is available to internationally known athletes wishing to travel to the United States to perform at a specific event or competition.
P-3 Artist Or Entertainer Coming To Be Part Of A Culturally Unique Program
A visa category available to internationally known entertainers traveling to the United States either individually or as a group for the purpose of developing, coaching or teaching a unique cultural program, such as a traditional ethnic, folk, cultural, musical, theatrical or artistic performance or presentation.
TN NAFTA (North American Free Trade Agreement) Professionals
A special visa classification for citizens of Canada and Mexico as part of the NAFTA. Professionals who are eligible to seek admission in TN status include accountants, engineers, lawyers, pharmacists, scientists and teachers.
Office Of Special Counsel For Immigration-Related Unfair Employment Practices
Part of the U.S. Department of Justice’s (DOJ) Civil Rights Division, this office enforces provisions of the Immigration and National Act, which protects U.S. citizens and certain work permit holders against employment discrimination based on immigration status and other reasons.
Port Of Entry
Any location in the United States or its territories designated as an entry point for foreign nationals and U.S. citizens. All district offices and service centers are also considered ports, since they become points of entry for foreign nationals adjusting to immigrant status.
U.S. Citizenship And Immigration Services (USCIS)
A federal agency that oversees lawful immigration to the United States by issuing employment authorization documentation, maintaining Form I-9 and administering the E-Verify employment eligibility verification program. This agency will adjudicate most work authorization petitions.
Once your employer has filed a work visa petition on your behalf and you receive a receipt number, you can check the status of your case via the USCIS website at: https://egov.uscis.gov/casestatus/landing.do.
U.S. Consulate Or Embassy
Foreign branches of the DOS located in various countries around the world. FNs visit U.S. consulates or embassies while in their country of origin to complete the interview requirement of the application process and receive their visa.
The United States only has one embassy in a foreign country’s capital; however, there may be multiple consulates.
U.S. Customs And Border Protection (CBP)
An agency of the U.S. Department of Homeland Security (DHS) responsible for facilitating legitimate travel and trade while monitoring the entry of people and goods. The CBP ensures people traveling to the United States are entering for the purpose the visa was issued.
U.S. Department Of Homeland Security (DHS)
A department of the executive branch tasked with preventing terrorism, managing risks to critical infrastructure, administering and enforcing immigration laws and more. USCIS, U.S. Immigration and Customs Enforcement (ICE) and CBP fall under the umbrella of the DHS.
U.S. Department Of Justice (DOJ)
An executive branch department responsible for enforcing the law and the United States’ interests to ensure public safety against domestic and foreign threats.
U.S. Department Of Labor (DOL)
A government agency that fosters and promotes the welfare of workers, job seekers and retirees by improving and maintaining working conditions and benefits. The DOL also regulates the PERM process in the interest of protecting the U.S. labor market.
U.S. Department Of State (DOS)
A part of the federal executive branch responsible for making and conducting foreign policy. It is also called the State Department. Each month the agency releases the Visa Bulletin, which highlights updated application filing dates and final action dates for family and employment- based green cards. In addition, the DOS manages U.S. Embassies and Consulates and is in charge of issuing FNs a visa to enter the United States as needed.
Did you know?
In many cases, if an FN is outside the United States while applying for a work visa, he or she can submit the application directly to the DOS. Sending prepared applications to USCIS is common for petitions led inside the United States.
U.S. Immigration And Customs Enforcement (ICE)
The investigative arm of the DHS tasked with promoting homeland security and public safety by enforcing laws and governing customs, trade, border control and immigration.
Admission Number (I-94 Number)
An 11-digit alpha-numeric code found on Form I-94 or I-94A, the arrival and departure record.
Alien Registration Number Or Alien Number (A Number Or A#)
An A number assigned to a noncitizen by the DHS. It’s also referred to as a USCIS number.
Approval Notice
A notice mailed to the employer or an attorney establishing that an FN has been approved for the applicable employment authorization, work visa or green card.
Arrival/Departure Record (Form I-94)
I-94s are the arrival and departure record that indicates a foreign national’s immigration status and approved length of time to remain in the U.S. I-94s issued by CBP are electronic and issued upon entering the U.S. I-94s issued by USCIS are attached to the paper I-797 approval notice issued when a foreign national changes or extends their status. The electronic I-94s can be retrieved at cbp.gov/ I94.
Note: The electronic I-94 record is not updated when a USCIS issues its own I-94 for a foreign national.
Employment Authorization Document (Form I-766/EAD)
The card issued by USICS authorizing the recipient to legally work in the United States. The card contains a photograph of the individual and, at times, his or her fingerprint. An EAD is given to holders of certain work visas and some dependent classifications. It’s also called a work authorization document or work permit.
Employment Eligibility Verification (Form I-9)
A document created by DHS and USCIS to verify the identity and legal work authorization status of an employer’s candidate.
Federal Employment Issuance Number (FEIN) Issuance Letter
A letter sent by the Internal Revenue Service displaying a company’s official FEIN Number, which is used for tax administration purposes and is required on certain immigration forms. This form is needed, at times, to establish a company’s right to file labor condition applications on behalf of certain visa holders.
Labor Condition Application (LCA)
An application submitted to the DOL that establishes an employer is paying at least the prevailing wage to its FN worker in a given geographical area. An approved LCA is required for the H-1B, H-1B1 and E-3 visas.
National Interest Waiver
A special condition exempting employers from completing the labor certification requirement for a green card application if the job description for an FN supports the United States’ national interest, among other factors. Detailed documentation is required to obtain this waiver.
Notice Of Entry Of Appearance As Attorney Or Accredited Representative (G-28)
An attorney or accredited representative may file this form with an FN’s visa or green card application to inform the government agency he or she is serving as a legal representative. As a result, the government agency can mail official notices to the representative.
Permanent Resident Card (Green Card)
Issued by the USCIS, this card serves as evidence an FN has permanent resident status. Also called green cards, some contain no expiration date; however, most are valid for 10 years.
Receipt Notice
An official notice from USCIS, the DOS or another government agency with a alpha-numeric designation establishing official receipt of the work visa or green card application.
Supporting Evidence
Authenticating documentation, such as financial documents, company brochures, photos and resumes that proves an FN and employer meet the necessary visa or green card requirements.
Types of Documentation
Company: Supporting evidence that must accompany an employment-based visa application to prove eligibility, such as financial reports, company brochures, and other marketing and financial materials.
Education: Supporting evidence, such as diplomas and certificates, which prove an FN’s stated educational history is accurate.
Employee: A list of documents provided by the attorney helping a company sponsor an FN for a work visa. These documents, such as a resume and copy of diplomas, help the employee prove his or her eligibility for a work visa.
Financial: Statements, such as annual reports, bank statements and income tax returns, that employers and FNs can use to prove their eligibility for a visa category. For example, B-2 Business Visitor applicants often have to prove the beneficiaries have enough funds to support themselves during the length of stay in the United States.
Immigration: Documentation, including passports, previous visa approvals and denials that provides an accurate representation of an FN’s immigration history.
Travel: Plane tickets, itineraries and other documentation proving the FN is traveling for a certain period. For example, a return plane ticket helps USCIS establish that the B-1 Business Visitor beneficiary will stay in the United States for only a short time.
Travel Authorization (Form I-131)
This form allows FNs to apply for a U.S. re-entry travel document for certain individuals in the green card process.
Visa
An endorsement added to an FN’s passport granting the ability to apply for entry into the United States. The stamp is often added at a U.S. Consulate or Embassy.
Applicant
The person applying for the visa or green card petition. Often the employer sponsors the visa or green card for the foreign national. At times, this person is also called the petitioner.
Application
A completed packet that is sent to USCIS or the DOS for processing. It often includes government forms, supporting evidence and fee payments.
Audit
A compliance check performed by a government agency to ensure all regulations and laws are followed.
The DOL audited 30 percent of PERM applications in fiscal year 2014, according to the Office of Foreign Labor Certification.
Beneficiary
The individual benefiting from the nonimmigrant or immigrant visa status if the application is approved.
Cap
A limit on the number of visa applications processed for a particular category. A cap applies to H-1B visas, which limits the number of new applications processed annually to 85,000.
Cap-Gap Extension
An F-1 OPT status extension granted to student visa holders waiting for their H-1B transfer of status to begin. Due to the H-1B cap season, a status gap occurs when the student’s F-1 OPT status ends on or after April 1st and the H-1B start date has yet to take effect.
The OPT employment authorization extension is granted through September 30 of the calendar year the H-1B petition is being filed, but only if the employment start date in H-1B status will begin on October 1.
Change Of Status
A request filed with USCIS stating an individual would like to officially change the purpose of his or her visit to the United States. For example, foreign students on F-1 visas often transfer to H-1B statuses to gain work authorization.
Consular Processing
The procedure beneficiaries of an immigration petition, who are outside of the United States, use to apply for a visa at a U.S. Consulate or Embassy overseas.
Curricular Practical Training
A program that allows active students to accept paid alternative work/study or any other required internship or practicum that employers offer though cooperative agreements with the school.
Dependent Visa
A special visa classification offered to spouses and unmarried children 21 years old and younger to allow them to travel and stay in the United States with a work visa holder, such as the H-1B and its H-4 dependent status.
Dependents can often study while living in the United States; however, they are only allowed to work under select classifications.
Domestic Worker
An individual who performs casual domestic services for families and homes, such as housekeeping and child caring.
Duration Of Status (D/S)
A notation on certain nonimmigrant forms (e.g., I-94) indicating that the individual, such as an F-1 student visa holder, is authorized to remain in the United States as long as he or she maintains the status.
Eligibility
Describes whether or not an FN meets the necessary visa requirements, such as five years of work experience or a four-year bachelor’s degree.
Employer Sanctions
A series of civil fines or criminal penalties imposed on employers for violating regulations, such as hiring or recruiting FNs without the proper work authorization documentation.
E-Verify
A Web-based system that compares information from an employee’s Form I-9 to data from DHS and Social Security Administration records to confirm employment authorization.
Exchange Visitor
An FN admitted temporarily to the United States in J-1 Exchange Visitor status to teach, instruct, observe, lecture, study, consult, demonstrate skills or receive training.
Executive Capacity
Refers to the employee’s ability to make senior-level decisions without much oversight. This term is often used in L-1A Intracompany Transferee Executive or Manager eligibility requirements.
Extension Of Status
The act of renewing a visa category to extend the length of stay in the current status. For example, H-1B visas can be renewed for up to three years at a time.
Extraordinary Ability Or Achievement
A term describing an individual who has risen to the very top of the eld of endeavor and is known internationally or nationally for his or her achievements. For example: O-1 visa holders are expected to have extraordinary ability in the sciences, arts, education, business or athletics.
Foreign National (FN)
A person who is not a citizen of the host country in which he or she is temporarily residing. All nonimmigrant visa holders, such as L-1A or TN recipients, are FNs.
Government Fees
Costs associated with the visa applications that are paid to government agencies such as USCIS or the DOS.
Immigrant Status
A term used for individuals living in the United States permanently. The majority of work visa holders have nonimmigrant status, denoting the temporary nature of their stay in the United States, while green card holders have immigrant status.
Job Description
An accurate written explanation of the job duties and requirements to be performed by the FN. For example, during the PERM application process, employers are required to write a detailed job description, which the DOL uses to determine the prevailing wage.
Labor Certification
DOL certification required for U.S. employers seeking to recruit individuals for, among other things, professional, skilled or unskilled positions for which there are no qualified, authorized workers available in the United States. PERM recruitment is a step of the green card application process that tests the labor market to ensure there are no qualified U.S. citizens available to perform the job duties for which an employer is seeking to sponsor an FN for legal permanent residency.
Lawful Permanent Resident
Any person who is not a citizen of the United States but is residing in the United States under a legal permanent status — also called green card holder.
Lottery
In order to impart a fair visa approval process, the act of government agencies, such as USCIS, randomly selecting visas to process when the number of visas led surpasses the approval allotment.
Managerial Capacity
Refers to the ability of the employee to supervise and direct the work of other employees and to manage the organization, department, subdivision, function or another component of the organization.
This term often applies to the L-1 or E-2 Treaty Visa.
Max-Out Date
The maximum amount of time an FN is allowed to stay in the United States under a specific visa category. Not all classifications have max-out dates, but others — such as L-1As — have specific time frames (six years).
NAFTA (North American Free Trade Agreement)
An act established in 1993 that created special economic and trade relationships between the United States, Canada and Mexico. As a result, nationals from Canada and Mexico have the ability to apply for a special TN nonimmigrant classification to travel and stay in the United States to engage in business activities at a professional level.
NAFTA Professions
Accountant, engineer, scientist, healthcare professional, architect, lawyer, teacher, economist, social worker, mathematician, psychologist, computer systems analyst, industrial designer and more.
A full list of NAFTA designated professions can be found at: www.envoyglobal.com/tnprofessions
National Of The United States
A person who, though not a citizen of the United States, has permanent allegiance to the United States (e.g., people born in American Samoa or Swains Island).
Naturalization
The manner in which a person not born in the United States voluntarily becomes a U.S. citizen. The citizenship process includes a biometrics appointment, applicant interview, English and civics test and oath ceremony.
Nonimmigrant
An FN who is admitted to the United States for a specific, temporary period of time. Nonimmigrant visa categories include: H, L, O, P, J, F and TN.
Optional Practical Training (OPT)
A work authorization program available to foreign students with an F-1 student visa status so they may obtain employment while studying in the United States.
Out Of Status
Applies to an FN residing in the United States without a valid or legal status.
Pay
Wages or other remuneration. This term is often used during the prevailing wage process as part of PERM labor certification.
PERM Labor Certification
A step of the green card application process that tests the labor market to ensure there are no qualified U.S. citizens available to perform the job duties for which an employer is seeking to sponsor an FN for legal permanent residency.
Petition
A term used to describe a visa application. For example, Form I-129 is the standard immigrant petition establishing that an employer wishes to sponsor an FN for a H-1B temporary work visa.
Petitioner
Refers to the foreign national who is being sponsored for work authorization by an employer.
Premium Processing
This is an expedited adjudication process for an additional fee requiring USCIS to take action within 15 calendar days of receiving a petition for certain visas or certain parts of the green card application process.
Prevailing Wage
The hourly wage or salary paid to the majority of workers within a particular area. This is used during the green card application’s PERM requirement or in other non-immigrant work authorization categories to establish a fair working wage that doesn’t undercut U.S. workers in a given industry.
Priority Date
The date a PERM application is filed with a government agency, or the date which an employer or relative files form I-140 on the FN’s behalf. This date is often used as a placeholder to signify how long an FN has to wait until his or her green card application is filed.
Processing Time
The time it takes a visa or green card to complete processing. Once accepted for processing, a work visa may take months; however, green cards can span years due to backlogs.
Recruitment
Describes the actions required during the PERM process that tests the labor market within a given area to determine there are no qualified U.S. workers available to perform the job duties.
It usually requires placing a job order on the DOL’s website, employer’s website and in a Sunday print publication and other outlets.
Regulations
Rules issued by an executive authority, such as a government department or agency in the executive branch, to carry out the intent of the law.
Request For Evidence (RFE)
A notice sent by USCIS informing visa applicants that there wasn’t enough information provided or that they need more clarification in the application in order to make a determination. Employers and FNs must resend the requested information to USCIS in order for their visa to be approved. Failure to do so may result in a visa denial.
Specialized Knowledge
Specialized knowledge relates to an individual possessing an advanced level of knowledge or specialized skill relating to the company’s product, services, research, equipment, techniques or management. The individual must be one of few employees with the same level of advanced knowledge.
Specialty Occupation
An occupation which requires theoretical and practical application of a body of highly specialized knowledge in architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology or the arts. It also requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
Sponsorship
The act of a company petitioning the U.S. government on behalf of an FN for the purpose of requesting a work visa or green card. The employer must prove it has an available job position and the FN recruit has the necessary qualifications. This term is also used to refer to nonimmigrant visas.
Start Date
The date an FN recruit can start employment in the United States as stated on the visa approval notice.
STEM
An acronym for science, technology, engineering and mathematics. FN students in F-1 statuses may apply for OPT authorization under a special STEM major requirement. These students are granted 12 months of work authorization while studying, and may be eligible for an additional 24 months of OPT with certain employers. These students may transfer to an H-1B after graduation.
Transfer
The act of switching visa classifications. Foreign students in F-1 statuses often transfer to H-1Bs during their last year of schooling. Also known as a change of status.
Validity Period
A time period for which the visa remains valid. For example, a B-1 visa has a validity period of up to 10 years, depending on the FN’s country of citizenship. However, the traveler on a B-1 visa may only be admitted in six month increments.
Visa Bulletin
A monthly update issued by the DOS highlighting application filing dates and final action dates for specific family and employment-based green card categories. Certain countries have long backlogs due to the amount of green card petitions received each year and per-country allotments.
For example, if the final action date is 01SEP07 it means USCIS is processing applications that were led on September 1, 2007 or before. If the FN’s priority date is prior to the ling date, it is possible to move forward with the next step in the green card process — an adjustment of status (I-485) application.
Visa Status
A term used to measure the current state of a U.S. visa application (e.g., whether it’s been received, accepted for processing, approved, denied or rejected).
Work Authorization
Legal permission to work inside the United States. Forexample, individuals granted work authorization are often given an employment authorization card or an H-1B visa.
Work Experience
Skills or knowledge obtained on the job that can be used to substitute years of study at an academic institution.
Three years of work experience is equivalent to one year of study.
Work Location
A building or worksite address where the job duties described in the visa application will be performed.
Your H1B petition has been approved by the USCIS and now all you have to do is get H1B visa. Easy, right?
For many, the interview at the U.S. Consulate for a nonimmigrant visa can be a nerve-wracking experience, especially for the first-time applicants. Stories abound regarding bad experiences and denials.
That is why being prepared is absolutely important before going to the interview. To help our readers, we’ve compiled some helpful tips as well as some common questions that Consular Officers ask during the H1B visa interview.
A. Before The H1B Visa Interview:
1.Check the Consulate website to ensure you have completed all pre-requisite activities before the interview, including completing the DS-160, paying the fees and completing the fingerprinting requirement.
2.Ensure you have gathered all the required documents for the interview as per the instructions provided on the Consulate website. You should also bring:
a.A complete copy of the H1B petition that was filed on your behalf, including the LCA, and client details (if you will be working at a client site).
b.Your original degree certificates and transcripts in addition to the photocopies as well as the degree evaluation, if applicable.
c.Tax documentation (tax returns and/or Form W-2’s) you may have if you were previously in the U.S., if any.
d.Experience letters, if you were previously employed in a related occupation.
e.An up-to-date resume which is accurate.
f.An updated Job Offer Letter from the US employer, especially if a significant amount of time has passed since the H1B approval and the visa appointment.
g.Paystubs and other proof of employment.
h.Evidence regarding maintenance of status if you were in the U.S.
3.Arrange the documents to be able to identify and hand them quickly to the officer when requested.
4.Carefully review the H1B petition and the documents you have collected. Inconsistent information in the H1B petition and the other documents is a red flag the Consular Officer will be looking out for.
5.Review the questions below and go over them as if you were at the interview. Have someone read the questions to you and make sure you can answer the questions clearly and concisely.
NOTE: H1B visa applicants are technically not required to speak in English and can request a translator for the interview. However, a Consular Officer will become concerned if you are going to be employed and working in the U.S. and cannot communicate in English.
B. The Day Of The H1B Visa Interview:
Make sure you have your Appointment Confirmation Notice and other documentation and arrive at the US Consulate at least 30 minutes prior to your appointment time.
Dress sharply like professionals. This means you should avoid wearing jeans (which is considered very casual in the U.S. and not meant for business meetings or any formal function) or sneakers.
Remember to be polite and greet the Consular Officer. While the officer may understand you may be nervous, you want to make a good impression right from the start.
When answering the Consular Officer’s questions, be honest, polite, clear and concise.
You should have your documents ready to present to the Consular Officer, but should not provide any document unless the Consular Officer requests it.
The H1B Visa Interview can be an overwhelming, but with the right preparation, you will set yourself up for success. Making sure you have the correct documents and are ready to answer the toughest questions the Consular Officer can throw at you will go a long way in ensuring a positive outcome after the interview. Although no one can guarantee the outcome of an H1B visa interview, your lack of preparation should not be the reason for an adverse decision.
Prevailing Wage Procesisng times for H1B, Green Card cann be identified in the below link.
What Is The F-1 Visa?
International students with the F-1 (Academic Student) visa can enter the U.S. as a full-time student. According to U.S. Citizenship and Immigration Services (USCIS), these students must enroll in a program or course of study that results in a diploma, degree or certificate. Additionally, the school must receive authorization from the U.S. government to accept international students.
F-1 Visa Requirements
USCIS says individuals must meet the following criteria to enter in the F-1 category:
Can I Work On A F-1 Visa?
F-1 students cannot work off-campus during their first academic year. After this first year, however, F-1 students have two types of off-campus employment options while currently enrolled at school. And, for certain students, additional post-graduate work authorization option known as STEM OPT.
What Is CPT?
Curricular Practical Training (CPT) is work authorization for temporary practical training for students who are enrolled in higher education studies and currently pursuing their degrees. The temporary practical training can take place during the academic year while the student is enrolled full-time at a higher education institution and during annual vacations.
CPT can be part- or full-time, and it includes employment like unpaid and paid internships. However, the CPT must be related to the student’s field of study as indicated on the original Form I-20.
What Is OPT?
Optional Practical Training (OPT) allows students to gain real-life experience for a minimum period of one year as they train and work in a field related to their area of study.
OPT is available for all international F-1 student visa holders either while pursuing their studies or after graduating from a higher education in the U.S.
What Is STEM OPT?
Certain F-1 visa holders graduating with a degree in a STEM field are eligible to apply for the STEM OPT extension. This extension is good for 24 months and permits graduates to train and work in the U.S. in their field of study for up to an additional 2 years.
** For additional information the F-1, including future plans and future requirements, we recommend you speak to your immigration attorney.
A common journey taken by many foreign nationals goes like this: 1) study in the U.S. while in F-1 status; 2) graduate and work pursuant to OPT (optional practical training) work authorization and 3) change from F-1 status to another nonimmigrant classification that provides work authorization (e.g., H-1B).
Before beginning your student journey in the United States, steps one through three should be carefully considered and mapped out because each step in the journey impacts those that follow. Decisions made early on may broaden or narrow future immigration and employment prospects. Below is a discussion of the three steps in our journey and how they impact future immigration opportunities.
For all students, it goes without saying that you should choose a major area of study that relates to the profession in which you intend to work. Where F-1 students are concerned, I would amend the prior sentence to state, “You must choose a major area of study that relates to the profession in which you intend to work.” Upon graduating with a bachelor’s or higher degree, F-1 students are eligible for post-completion optional practical training (OPT), which grants 12 months of work authorization in the United States. One of OPT’s requirements is that the OPT employment must be directly related to an F-1 student’s major area of study. Someone that graduates with a degree in accounting and decides they want to pursue a career as a systems analyst will most likely not receive OPT work authorization because a degree in accounting is not directly related to the systems analysts profession.
F-1 students that earn a bachelor’s or higher in a STEM field may be eligible for a STEM OPT extension. The STEM OPT extension provides an additional 24 months of work authorization, which means that certain F-1 students can receive up to 36 months of work authorization upon graduating (12 months of post-completion OPT plus 24 months of STEM OPT extension). Those interested in benefiting from the STEM OPT extension need to make sure their intended major area of study qualifies them for the STEM OPT extension.
During the OPT work authorization period, many F-1 students apply to change status to another nonimmigrant classification that provides work authorization. The most common route is the H-1B classification. One of the primary requirements for the H-1B classification is that the H-1B worker must possess a bachelor’s or higher degree in a field that relates to the occupation. A more in depth discussion on this topic can be found here.
Immigration and Customs Enforcement (ICE), the agency responsible for overseeing the Student and Exchange Visitor Program (SEVP) has recently instructed college and university officials to be more thorough in their review and endorsements of benefits sought by F-1 students, such as OPT work authorization. Also, USCIS is adjudicating applications made by F-1 students for immigration benefits with higher levels of scrutiny than before. As a result, the need to plan ahead when deciding your major area of study and the consequences of failing to do so are greater than ever before.
The automatic cap-gap extension of OPT was implemented by USCIS in order to assist foreign students who have been sponsored for an H-1B visa. The typical cap-gap situation occurs when an F-1 student graduates in May and obtains a one year OPT ending the following year sometime between April and October. In most cases, the F-1/OPT student finds a job during the OPT time and the employer files an H-1B petition on their behalf so that the student can remain employed after the OPT expires. The problem was created when the H-1B quota began running out earlier and earlier each year. In all practicality, the H-1B now has to be filed on April 1st, but the visa won’t take effect until October 1st. If a student’s OPT expires in between April and October, they are caught in a cap-gap.
In the past, the student would either need to leave the country and wait until October 1st to come back to work, or re-enroll in classes to maintain the F-1 status until October 1st when the H-1B would kick in. Now, a student with a pending H-1B petition requesting a change of status will automatically be eligible for a cap-gap extension of the OPT. This allows the student to continue working from the time the OPT expires to September 30th. The H-1B would then start on October 1st and there would be a seamless transition from OPT to H-1B. The extension is automatic; no action needs to be taken by the student. If documentation of the extension is needed for a driver’s license renewal or to document continued employment authorization for the employer, a student has the option to request a new I-20 from the school which confirms the extension.
There are some problems that can arise during the cap-gap extension, and I often receive calls about what to do in these situations:
Q: My OPT has expired, my H-1B is still pending and it is after October 1st. Can I keep working under the cap-gap extension?
A: No. The cap-gap extension automatically ends on September 30th. You are no longer eligible to work. However, you are eligible to remain in the United States in a “period of authorized stay” based on the pending H-1B petition. Tip: if your H-1B is still pending in early September, you may want to consider upgrading to premium processing so that it can be approved by September 30th.
Q: My H-1B did not request a change of status, it is for consular processing. Am I eligible for the cap-gap extension?
A: No. The cap-gap extension is only for those who have requested a change of status from F-1 to H-1B on the I-129 petition.
Q: My OPT expires before April 1st, but I will be in my 60-day grace period on April 1st when the H-1B will be filed. Can I continue working pursuant to the cap-gap extension?
A: No. The cap-gap extension is only available for those with a valid OPT on the day the H-1B petition is filed. Those in the grace period at the time the H-1B is filed cannot get the cap-gap work authorization. However, those in this situation can remain in the U.S. in a “period of authorized stay” based on the pending H-1B petition.
Q: My H-1B has been denied and my OPT is already expired. Now what?
A: The 60-day grace period begins from the date of denial. During this time, you must stop working. You can make arrangements to leave the country, re-enroll in school for a new program, or look into any other visa options that may be available to you. Tip: if your employer files an appeal or an MTR for the H-1B denial, it does not keep you in status and does not authorize you to work. You should check with a qualified immigration attorney regarding your options in this situation.
Q: My H-1B is approved, my OPT has expired, and I want to change jobs before October 1st. Can I?
A: Timing is everything in this situation and things can easily go wrong. Your new employer would need to file a new H-1B petition requesting a change of status from F-1 to H-1B. You would not be subject to the quota because you were already counted when the first H-1B petition was approved. However, if the first employer withdraws the approved H-1B before the second one is approved, there can be a problem. Also, if you are looking to make a change too close to October 1st, there can be issues. You should check with a qualified immigration attorney regarding your options in this situation.
Q: My H-1B is approved, my OPT has expired, and I want to travel before October 1st. Can I come back on my OPT?
A: No. The cap-gap extension is not available for a person who exits the country. Travel is not recommended. But if it is unavoidable, you need to stay outside the country until October 1st, apply for a new H-1B visa stamp, and then can return to the U.S. in H-1B status to start working again.
Students in good standing are entitled to 12 months of optional practical training (OPT) per degree, which may be used before or after graduation in any combination. The job duties must be related to the student’s major field of study, but there is no pre-adjudication by the CIS. Rather, once the student presents the Employment Authorization Card to the employer, he may be placed on payroll and commence employment.
Post-Completion Optional Practical Training Practical training undertaken after graduation is referred to as “post-completion” OPT. Those students in OPT who are seeking to change status to H‑1B may be eligible for an automatic extension of OPT status while the H‑1B petition is pending and until it becomes effective, normally on October 1. Those students in OPT status whose underlying degree is in the field of science, technology, engineering, or mathematics (STEM) may be eligible for an additional period of 17 months of OPT after completing 12 months of post completion
OPT, but only if the employer registers in E-Verify. What if an F-1 student who has a bachelor’s degree in a STEM field is in post completion OPT based on a non-STEM master’s degree? Is he eligible for the 17-month STEM extension of his OPT? For example, suppose one of your F-1 employees was awarded a bachelor’s degree in electronic engineering, but is currently employed in OPT status based on his recent receipt of a master’s degree in business administration. Can he qualify for the 17-month STEM extension based on his engineering degree?
The answer is no. Under the regulations, the degree that is the basis for the student’s current period of OPT has to be the STEM degree. Since in this case the student’s OPT was based on his master’s degree program in business administration, he is not eligible for the STEM extension.
To answer this question, CIS will refer to a “STEM Designated Degree Program List,” which is based on the U.S. Department of Education’s “Classification of Instructional Programs” (CIP) 2000 report, found online at
http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2002165.
According to CIS, the list of degrees includes those in the following fields: Computer Science: NCES CIP Codes 11 .xxxx (except Data Entry/ Microcomputer Applications, NCES CIP Codes 11.06xx)
To apply for the 17-month extension of employment authorization, STEM graduates on OPT must seek out the recommendation of the Designated School Official (DSO), who must make the recommendation through the Student and Exchange Visitor Information System (SEVIS). Once the DSO recommends the extended training period, the student must submit a form I-765 (with fee) to the CIS before the expiration date of his current EAD. Please remember that STEM OPT will not be granted unless the employer is registered to participate in E-Verify.
The new rule automatically extends EADs for 180 days for students with pending requests for extension of post-completion OPT while CIS adjudicates the request for the extension.
In addition to registering in the E-Verify employment verification program, employers must report to the student’s DSO within 48 hours if the student leaves the employer prior to the end of the authorized OPT employment period. A student will be deemed to have left the employment if the employer knows that the student has terminated employment or if the student has not reported for work for 5 consecutive business days without the consent of the employer, whichever occurs earlier. The employer can find the DSO’s contact information on the student’s form I-20.
Under the regulation, students seeking a 17-month STEM extension must agree to report within 10 days the following changes to the DSO:
The student must also make a validation report with the school every six months from the date the STEM extension starts, even if there have been no changes. All of the information reported to the school must be reported in SEVIS by the DSO.
Yes. A 60 day grace period applies after the extended 17-month OPT employment authorization expires. Again, no employment is permitted during these 60 days.
Students with a 12-month EAD may only have an aggregate maximum period of unemployment of 90 days. That period increases by 30 days for F-1 students in the 17 month STEM extension period.
Employment must be at least 20 hours a week and must be related to the student’s degree program. Students, such as musicians and other performing artists, may work “gigs.”
Students on OPT may also start a business and be self-employed, but the self-employment must be full time. A student may work for more than one employer, but all employment must be related to the degree program. Regarding unpaid employment (e.g., volunteer work), Student and Exchange Visitor Program rules provide:
– For regular post-completion OPT, the employment does not have to be paid employment, but it does have to be at least 20 hours a week.
– For the 17-month STEM extension, employment must be paid employment, and it must be at least 20 hours a week. Volunteer work is permitted, but it does not count as employment for maintaining status.
What Is the L-1 Visa?
The L-1 visa is available for employers wishing to transfer employees from a foreign branch, subsidiary, affiliate, parent or related corporate entity to work at a related U.S. Entity.
Another requirement is that the foreign national must have been employed with the organization outside of the U.S. for at least one continuous year in the preceding three years at a qualifying foreign entity.
There are two categories under the L-1 visa:
Both categories have their own eligibility requirements.
What Is the L-1A Visa?
The L-1A visa is for foreign nationals who have worked aboard at a foreign affiliate of the sponsoring U.S. entity in an executive or managerial capacity.
Executive capacity refers to the employee’s ability to make major decisions without much oversight.
Managerial capacity refers to the ability of the employee to supervise and direct the work of other employees and to manage the organization, or department, subdivision, function or other component of the organization.
Additional requirements for the L-1A visa include the following:
Also, if the executive’s or manager’s reason for travel is to open a new office in the U.S., the following conditions must be met:
The intended U.S. office will support an executive or managerial position within one year of the approved petition.
What Is L Blanket Certification?
Some companies choose to establish an intracompany relationship in place of filing individual L-1 petitions. This means the employee can apply for the L visa directly at a U.S. Consulate and not in the U.S.
To learn more about L Blanket certification, download our guide, Introduction to L Visas.
How Long Does the L-1A Visa Last?
The L-1A visa has an initial period of stay of three years. Individuals can apply for renewals and may receive two extensions granted in two-year increments. This means individuals on an L-1A visa can remain in the U.S. for a total of seven years.
It’s also important to note that an L-1A could have more than one, two or three extensions if the L-1A visa holder travels outside the U.S. They get to recapture that time, meaning someone could potentially stay in the U.S. for an even longer period of time. We recommend speaking to an attorney for more information.
If the temporary nature of the assignment changes, we recommend speaking to an attorney.
L-1A Visa Petition and Filing Fees
Please note that the above fees specifically refer to applying with USCIS.
What Is the L-1B Visa?
The L-1B visa allows a U.S. employer to transfer an employee with specialized knowledge relating to the organization from one of its affiliated foreign offices to a U.S. parent company, subsidiary, affiliate or branch.
An employee must meet the following requirements in order to qualify for the L-1B visa:
What Is Specialized Knowledge?
Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).
If the employee’s reason for working in the U.S. is to open a new office, the following conditions must be met:
How Long Does the L-1B Last?
The L-1B visa has an initial period of stay of three years. Individuals can apply for renewals and may receive one extension granted in a two-year increment. This means individuals on the L-1B visa could potentially stay in the U.S. for a total of five years.
It’s also important to note that an L-1B could have more than one, two or three extensions if the L-1B visa holder travel outside the U.S. They get to recapture that time, meaning someone could potentially stay in the U.S. for an even longer period of time. We recommend speaking to an attorney for more information.
If the temporary nature of the assignment changes, we recommend speaking to an attorney.
L-1B Visa Petition and Filing Fees
Time spent in L1A status generally counts against the 6-year max for H1B time. An approved I-140 cannot be used to extend L1A status beyond the 7-year max, but can be used to extend H1B status beyond the standard 6-years allowed.
That being said, the approved I-140 does not exempt one from the H1B cap. If the person has been counted against the H1B cap, it typically would be possible to move to H1B status. But, if the L1A worker has never been counted against the cap, in order to move to H1B status, s/he would generally need to go through the H1B lottery
What Is a Green Card?
A green card is officially known as a Lawful Permanent Resident Card. By having a green card, individuals can live and work permanently in the U.S.
Individuals who have a green card are also referred to as Lawful Permanent Residents (LPR).
What Are the Benefits of a Green Card?
In addition to being able to permanently live and work in the U.S., lawful permanent residents enjoy many other benefits. These include:
Types of Green Cards
These are the three most common immigrant visa categories that are the basis for an employment-based (EB) green card application. They are:
What Is an EB-1?
What Is an EB-2?
Individuals must meet the following eligibility criteria for the EB-2: Advanced Workers category:
What Is an EB-3?
Individuals must meet the following eligibility criteria for the EB-3: Professionals, Skilled or Other Workers category:
How Long Does a Green Card Last?
Lawful permanent residents can work and live in the U.S. indefinitely. Individuals need to renew their physical green card every 10 years.
More so, 90 days prior to their fifth anniversary as a lawful permanent resident, green card holders are typically eligible to apply for citizenship.
To check the Priority date for Current VISA bulletin, please use the link below. You can then
A lawful permanent resident (LPR) normally may travel outside
the United States and return; however, there are some limitations.
A reentry permit can help prevent two types of problems:
• Your Permanent Resident Card becomes technically invalid for reentry into the United States if you are absent from the United States for 1 year or more.
• Your U.S. permanent residence may be considered as abandoned for absences shorter than 1 year if you take up residence in another country.
A reentry permit establishes that you did not intend to abandon status, and it allows you to apply for admission to the United States after traveling abroad for up to 2 years without having to obtain a returning resident visa. Reentry permits are normally valid for 2 years from the date of issuance.
You may also want to get a reentry permit if you plan on traveling outside the United States and cannot or do not wish to get a passport from your home country. Many countries throughout the
world may allow you to use a reentry permit much like you would use a passport—placing necessary visas and entry and exit stamps in the permit—so you may use it as your main travel document.
Be sure to check with any country you plan to visit about specific requirements before you travel.
f you move, you must update your address with USCIS within 10 days of moving to the new address. If you do not update your address, you may not receive important notices about your case. Changing your address with the U.S. Postal Service will not update your address with USCIS. Go to our "Change of Address" Information page to learn how to update your address with USCIS.
If you want a case status update about your application, you can:
The Immigration and Nationality Act provides the basic requirements for a non-immigrant to be eligible for employment-based adjustment of status:
In addition to meeting these basic requirements, an applicant must demonstrate that he or she does not fall into one of the bars to adjustment of status. An individual who
is normally not eligible to adjust status to lawful permanent resident by filing an I-485 application. But, specifically for employment-based applicants, Section 245(k) of the Immigration and Nationality Act may still allow an individual to adjust status under certain circumstances.
INA §245(k) allows EB-1, EB-2, and EB-3 applicants for adjustment of status who may have been out of status, worked without authorization, or otherwise violated the terms and conditions of the admission to still apply for adjustment of status IF the aggregate period of such violations does not exceed 180 days. This benefit also applies to family members applying as derivative beneficiaries of the primary employment-based adjustment applicant.
Qualified employment-based applicants are eligible to adjust under INA §245(k) even if they failed to maintain continuous lawful status, engaged in unauthorized employment, or violated the terms of a non immigrant visa as long as:
USCIS only considers status violations after the most recent date of entry in lawful status. This means that employment-based adjustment applicants can have a fresh start after the last admission and allows adjustment to permanent residency as long as there has not been unauthorized employment or a status violation exceeding 180 days since that last entry.
Example 1:
Mr. Worker was employed by Company A in H-1B status and was looking to change employers to Company B. Company B filed an H-1B “transfer” petition in order to hire Mr. Worker. The day after the petition was delivered to USCIS, Mr. Worker began working for Company B pursuant to the portability provision of AC-21. Unfortunately, a signature was missing in Company B’s H-1B petition and the filing was rejected two weeks later. Company B quickly corrected the error and re-filed the petition, but Mr. Worker has now been working for Company B without authorization for two weeks. This is a violation of H-1B status as well as unauthorized employment.
Now, how does 245(k) benefit him? Since his period of unauthorized employment was less than 180 days and this was his only violation since his last entry, 245(k) allows him to file the I-485 application to adjust status.
Example 2:
Mr. Worker is currently in the United States in L-1A status with an approved I-140 petition. He is ready to file his I-485 application when he discovered that his wife’s L-2 has expired. The last time she traveled, her passport was expiring before her I-797 approval notice was set to expire. At the port of entry, she was given a new I-94 card that expired according to her passport instead of her I-797 approval (see: http://immigrationgirl.com/travel-when-your-passport-expires-before-your-i-797-expires/). She was not aware until now that her I-94 actually expired 3 months ago.
Since her admission to the U.S. in L-2 status was lawful and her I-94 has been expired for less than 180 days, she is still eligible to file the I-485 application along with her husband to adjust status in the employment-based category. Note that if she did not realize her I-94 had expired until more than 180 days had passed, she would not be eligible to adjust status. She would need to get back into L-2 status prior to filing the I-485.
This does not mean that it is OK to work without authorization or violate status, even briefly. It is not intended to help you circumvent immigration laws. It also does not mean that status and other violations will be disregarded for purposes other than filing the I-485. Any other penalties, including potential deportation for failure to maintain or comply with status requirements, can still be applied. It therefore is important to do everything possible to avoid any violation. INA 245(k) is simply a way for some of those with inadvertent immigration violations to still be eligible to adjust status.
Be sure to discuss any potential situations with a qualified immigration attorney before filing your adjustment of status to ensure that you are eligible for this type of relief.
The E-3 work visa is very similar to the H-1B visa, except that only Australian citizens are eligible. That means if you are an Australian citizen with a specialty occupation job offer in the United States, this is the visa for you.
There are 10,500 annual E-3 visas, not including E-3 visa extensions or transfers. These visas cover a two-year period with unlimited extensions in most circumstances. Qualified applicants are Australian citizens with legitimate US job offers for specialty occupations. A specialty occupation is a job that requires a minimum of a US bachelor’s degree or higher as a minimum qualification to be hired to the position.
The applicant must be paid the higher of the actual or prevailing wage for the position. The actual wage is the wage the E-3 employer pays its other employees performing the same job as the E-3 position with similar experience and qualifications. The prevailing wage is the average wage paid to employees holding the E-3 position in the specific geographical location of the E-3 job.
The E-3 applicant must also hold the required minimum degree or its equivalent in years of progressive work experience. Three years of work experience in the field of the E-3 job in which the applicant took on progressively more responsibility and the nature of their work became progressively more specialized and complex can be converted into one year of college credit. That means, in absence of the required bachelor’s degree, the applicant must have at least 12 years of progressive work experience in the industry.
If you, or if your employee or client is seeking E-3 visa status, it is essential to make sure that you provide added evidence proving they meet specialty occupation requirements and that their credentials match the E-3 job requirements.
What Is the E Visa?
The E visa is for treaty traders and investors who come to the U.S. under a treaty of commerce and navigation between the U.S. and the country of which the treaty trader or investor is a citizen or national.
The E visa category also includes Australian specialty occupation workers.
E Visa Eligibility
Foreign nationals sharing the same nationality as the company or person that owns the sponsoring U.S. entity may apply for an E-2 visa.
There are three types of individuals eligible for an E-2 visa:
What Are the E Visa Treaty Countries?
Examples of treaty countries include Australia, Belgium, Columbia, Egypt and many more. For a full list of treaty countries, visit the U.S. Department of State’s website.
What Is the E-2 Visa?
Applicants use the E-2 Treaty Visa to enter the U.S. solely to develop and direct an enterprise in which they have invested a substantial amount of capital. The primary visa holder’s spouse and children may also be granted an E-2 dependent visa.
How to Obtain An E-2 Visa
To obtain an E-2 investor visa, the applicant must:
Be sufficient to ensure the success of the operation
Lead to a fully operational commercial or entrepreneurial undertaking
Generate more income than to provide a living for the traveler’s family, or it should majorly impact the U.S. economy
E-2 Visa Application and Filing Fees
The following are costs for the E-2 visa:
How Long Does An E-2 Visa Last?
Applicants have an initial stay of two years. They can then apply for extensions in two-year increments. As such, the total stay for an individual on the E-2 visa varies.
If the temporary nature of the assignment changes, please speak with your attorney.
What Is the E-3 Visa?
The E-3 Certain Specialty Occupation Professional is a visa available to Australian citizens only.
How to Obtain An E-3 Visa
Australian citizens must meet the following eligibility requirements:
E-3 Visa Application and Filing Fees
How Long Does An E-3 Visa Last?
Applicants have an initial stay of two years. They can then apply for extensions in two-year increments. As such, the total stay for an individual on the E-3 visa varies.
** If the temporary nature of the assignment changes, please speak with your attorney.
The B-1 visa for Business Visitors allows individuals to take short trips to the U.S. to conduct business matters such as contract negotiations, in-person consulting and attending conferences.
However, visitors are not permitted to accept employment or work in the U.S. Another important note: select countries do not require a visa for business travel.
B-1 Visa Requirements:
Individuals are eligible to enter the U.S. on a B-1 visa if they are participating in some of the following business activities:
For additional business activities, please speak with your immigration attorney.
How Long Does A B-1 Visa Last?
Individuals on a B-1 visa have an initial period of stay of one to six months. The total stay can be up to one year. The B-1 visa itself can be valid for up to 10 years depending on the country of citizenship.
If the temporary nature of the assignment changes, please speak with your immigration attorney.
B-1 Visa Application and Filing Fees
What Is A B-2 Visa?
The B-2 visa is for tourist visitors and allows them to travel to the U.S. for personal activities.
What Is the O-1 Visa?
The O-1 visa category is for people who possess extraordinary ability in the sciences, arts, education, business and athletics.
Extraordinary ability means the person has risen to the very top of the field of endeavor and is known internationally, or nationally, for their achievements.
To obtain an O-1 visa, a written advisory opinion might be required in the application from a peer group (including labor organizations) or a person designated by the group with expertise in the beneficiary’s area of specialization. Not all O-1 visas require this written advisory opinion.
How Long Does The O-1 Visa Last?
The O-1 visa has an initial stay period of three years. After that, individuals can apply for renewals and the government may grant unlimited extensions up to one year. This means the total stay for the O-1 visa varies.
If the temporary nature of the assignment changes, we recommend that you speak to an attorney.
O-1 Visa Application and Filing Fees
What Is the P Visa?
The P visa category is used for internationally known athletes and entertainers. As such, the P visa is a rare category.
P-1A Visa Requirements
The P-1A visa category is for athletes to perform at a specific event or competition as part of a group or individually. These are the P-1 visa eligibility requirements:
Please note, an employee must submit Form I-94 if inside the U.S. and applying for an extension or transfer.
How Long Does a P-1 Visa Last?
Individual athletes have an initial stay of five years. After those five years, the individual athletes can apply for renewals, however, the number of extensions is limited. As such, individual athletes have a total stay of 10 years in the U.S.
Athletic groups have an initial stay of one year. After that one year, USCIS grants renewals at its discretion. This means the total stay for athletic group varies.
If the temporary nature of the assignment changes, individual athletes and athletic groups should speak to their attorneys.
P-1A Visa Petition and Filing Fees
What Is the P-3 Visa?
The P-3 visa is reserved for an artist or entertainer coming into the U.S. to be part of a culturally unique program. For example, the petitioner must be coming to the U.S. either individually, or as a group. Their purpose should be to develop, coach or teach a unique cultural program, such as:
Please note, an employee must submit Form I-94 if inside the U.S. and applying for an extension or transfer.
How Long Does a P-3 Visa Last?
Individuals on the P-3 visa have an initial stay of one year. After this first year, individuals may apply for unlimited extensions that are permitted for up to one year. However, these extensions are limited until completion of the event or performance.
As such, the total stay varies for someone on the P-3 visa. If the temporary nature of the assignment changes, individuals should speak with their attorney.
P-3 Visa Petition and Filing Fees
What Is the TN Visa?
The TN visa is a special classification for citizens of Canada and Mexico as part of the United States-Mexico-Canada Agreement (USMCA). USMCA replaced the North American Free Trade Agreement (NAFTA) on July 1, 2020.
TN Visa Requirements
Citizens from Mexico and Canada are eligible for the TN visa and to work in the U.S. if they work in some of the following professions:
How Long Does a TN Visa Last?
TN visa holders have an initial stay in the U.S. of three years. After that period, TN visa holders can apply for unlimited renewals that are granted in three-year increments. As such, the total stay varies.
TN visa holders should speak with their attorney if the temporary nature of the assignment changes.
TN Visa Application and Filing Fees
These are the fees for the TN visa:
TN Visa Process for Canadian Citizens
Canadians will need to take the entire TN petition packet, including any original documents as necessary, to the Canada – U.S. border or to Pre-Flight Inspection at a Canadian airport. From there, US immigration adjudicators will review the petition and, if approved, issue an I-94 card.
TN Visa Process for Mexican Citizens
The TN visa process for citizens of Mexico involves some different steps. First, Mexico residents will need to schedule an appointment with the U.S. Consulate in Mexico. They then attend that appointment and take the entire TN petition packet, including any original documents as necessary, to the U.S. Consulate.
Next, the U.S. consulate issues the visa stamp and the employee receives the stamped passport from the Consulate. Finally, the employee can travel to the U.S. and receive the I-94 card upon entry into the U.S.