I am an F-1 Student working with a OPT permit, can I apply for H-1B to keep working?

The answer is both yes and no. As long as an applicant can meet the minimum requirements for H-1B, and the company you intend to work for is willing to petition for you, then, you can apply for H-1B. However, it is important to keep in mind that if your H-1B application was not filed in a timely manner then you may not continue to work until your H-1B petition has been approved. At the expiration of your OPT or F-1 academic program you must stop working, unless your H-1B has been approved. F-1 visa holders who are filing for H-1B for the first time need to keep in mind that they are not exempt from the H-1B cap unless they are petitioning with a University or a Non-profit cap exempt organization. It is very important that F-1 students need to time their applications very carefully.

If the H-1B petition filed for change for status is within the 60 day grace period given post OPT, then you can remain in the US in legal status for the period between the completion of OPT and the beginning of your H-1B eligibility. However, you will not legally be able to work in that time frame until your H-1B has been approved. Should you not be able to file a H-1B cap case prior to the end of your F-1 Status and your grace period has expired, you must maintain status by enrolling in another program or depart the US if another option can’t be found. It is very important to contact a knowledgeable attorney to discuss the particulars of each individual case. There may be other options available you are not aware of.

I am in the process of transferring my H-1B from my old employer to a new one, why is the transfer taking longer than my initial H-1B application?

H-1B visas are employer specific visas; therefore, an H-1B visa transfer will be processed as if it were a new H-1B application. So the time frame that is expected to transfer an application should be about the same as that of a new application. The only difference between processing a new application and that of a transfer lie in the fact that a transfer application is not subject to the H-1B cap. You have already been counted in the cap and will not need to be counted again. It is important to keep in mind that every Consular Officer is different, depending on his/her caseload your application can take a different amount of time. If you are in a hurry to receive your H-1B approval, you may pay the premium processing fee to have your application expedited and you will receive notice within 15 business days.

I formerly had H-1B status, I changed my status to H-4, now I have found a new job do I have to apply for a new H-1B application?

Yes and no. Because H-1B petitions are employer specific, every H-1B petition, whether it is a change of status, or change of employer is processed as a new petition. However, because you have not left the country for a period of one year, you would be eligible to apply for a change of status and forgo the H-1B cap. This limits you to the remaining time left on your previous H-1B application. Otherwise you may leave the country for a period of 1 year and reenter to start the 6 year clock again.

What is an H-1B transfer?

The H1B transfer bill enables valid H1B visa holders to change employers upon the filing of a new petition as long as the individual is in lawful status at the time of filing and has not engaged in any unauthorized employment since his or her last lawful admission. There is no need for a new H-1B stamp, your visa will be transferred automatically.

Here are some key points of knowledge for H-1B transfers:

  • First and foremost, please know what you cannot submit an H-1B Transfer. Since an H-1B is a petition, your employer must be the one to submit it. Here are the documents critical for the approval of H-1B Transfer:
  • Copy of educational documents including degrees and transcripts (which make sure to obtain translation documents are in foreign language
  • Copy of educational evaluation (if your college degree was obtained out of the U.S.)
  • Copy of all existing immigration work such as H-1B Petitions, Forms, LCAs, Supporting letter etc.
  • Form I-485 & I-140 (if applied)
  • Copy of three recent paystubs
  • There is no deadline as to when you can start your new employment. It is solely up to you. For your safety, please start the new employment prior to expiration or termination of the previous employment.
  • H-1B transfer petitions are not subject to H-1B Cap. However, if you are transferring from a H-1B from a Non-Profit Organization to a H-1B Cap Company, you will be subject to the Cap.
  • It is not required for you to tell your current employer about your transfer and there is no way to find out.
  • You can transfer as many times as you want. Do bear in mind that you are still subject to the 6 year H Limit. You will be required to leave the U.S. after complete 6 years on any H status.
  • The processing time for an H-1B transfer varies on the petition filed. If all the required documents are submitted in the correct format, it usually takes 4 -8 weeks. You may check the USCIS Website as the processing times depend upon the location of the employment and the work load at the USCIS service center where the file was submitted.

For a successful H-1B Visa Transfer, please make sure you have followed all instructions and provide on the documents that are required. Delay in submitting the requirement documents can cause denial in one’s H-1B Petition. Please seek an experienced immigration lawyer for counsel to submit an H-1B Transfer.

I am currently working on H-1B with Company A, and have my H-1B transfer pending with Company B. However, I am not sure if I want to work for Company B anymore. Can I stay with Company A?

Yes, you may stay with Company A even after the approval of Company B as long as Company A has not revoked your H-1B application with USCIS. You may have multiple H-1B visas but you may only work for one company at a time. This is why we tend to advise H-1B applicants not to leave their previous jobs prior to having their transfer applications approved. If you later decide not to leave a position, but the employer has terminated your H-1B with USCIS, then you will have to depart the U.S or maintain your status by changing it to either H-4 or otherwise.

What about my Spouse and Children? Are they allowed to come to the US with me?

H-4 is a nonimmigrant visa that permits dependents of an H-1B Visa Holder to enter into the U.S. With such visa, the spouse and children are considered dependents and can travel to the U.S. and stay with the H-1B Visa holder as long as he/she is in valid status and is legally working for the sponsoring company.

The H-4 Visa provides that:

  • Dependents of an H-1B Visa holder are considered either spouse or unmarried children under the age of 21 yrs to be qualified for H-4.
  • An H-4 visa holder is allowed to enter the U.S. along with or after the spouse or parent holding the H-1B Visa.
  • A dependent can stay in the U.S. as long as the principal H-1B Visa holder is in status. If the H-1 of the principal immigrants expires or if the principal is laid-off or terminated from the employment, he or she loses the H-1 visa status and so does the dependent.
  • This is a nonimmigrant visa and cannot be used as permanent stay in the U.S.
  • H-4 permits travel in and out of U.S. as long as the visa is valid.
  • An H-4 Visa holder is not permitted to work in the U.S.
  • H-4 visa holder is permitted to attend school in the U.S. provided that he or she is in valid status.

My wife is currently here on H-4 status, she was recently offered a job when can she start?

Under no circumstances are H-4 dependents allowed to work for pay. However, H-4 dependants are allowed to work if there is no compensation. For example if your wife is offered an internship with no compensation other than credit, she may be allowed to take then position. Another example may be if your wife is volunteering at a local shelter, or library.

If your wife is offered a job that is willing to sponsor her for an H-1B visa, then she would be able to transfer her H-4 status to that of H-1B when her sponsor company files the appropriate paperwork with the USCIS.

Also email us your Resume at visainfo@greencardmaker.com and mention the name you used for this application for thorough evaluation.

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