HIB- Nonimmigrant Visa

What is a Visa?
If you’re a citizen of a foreign country, in most cases you’ll need a visa to enter the
United States.
There are two categories of U.S. visas: immigrant and nonimmigrant.
a) Immigrant visas- are for people who intend to live permanently in the U.S.
b) Nonimmigrant visas -are for people with permanent residence outside the U.S. but who
wish to be in the U.S. on a temporary basis – for tourism, business, temporary/specialty work,
study, or medical treatment.

What is an H1B visa?

The H1B visa program is the primary method for bringing in professional level foreign
employees to the USA. The H1B visa enables US employers to hire foreign professionals for
a specified period of time. The H1B program allows workers in specialty occupations to
work in the US for up to a total of six (6) years.

Aside from documenting that the position offered is in a specialty occupation and that the
employee has the appropriate credentials for the job, the employer needs to verify that the
H1B visa worker is being paid the prevailing wage for the work being performed and that
employment of a foreign worker is not harming conditions for US workers.

A) The length of time that a worker can have an H1B visa is usually an initial period of up
to three years. The initial H1B visa can then be extended one time for up to a combined
total of six years.

B) The worker's family may also be permitted to live in the US during the period that the
H1B visa is in effect, but cannot be a paid employee while on an H4 visa.
During the term of the H1B visa the employee can also apply for permanent residency.
This is called "Dual Intent", and is a privilege some other U.S. visas do not enjoy.

C) The Number of H1B visas issued - the H1B Cap

The number of H1B visas issued each year is subject to a cap that is determined by US
Congress. Employers and individuals in need of cap-subject H1Bs should still try to file
on or as soon after April 1, 2006 as possible. The next H1B cap numbers become
available on October 1, 2006, which is the first day of the next fiscal year. Cases
requesting those numbers can be filed up to six months in advance, on April 1, 2006. This
applies to both the regular 65,000 cap for H1Bs and the 20,000 U.S. advanced degree cap
exemptions.

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D) Required Documentation for H1B visa holder.

1. Copy of Complete Passport

(a) First 5 pages
(b)Last 4 pages
(c)All pages with stamped US visas & Pages reflecting stamped dates, for each US arrival
& departure
2. Copy of I-94 card (both sides)
3. Copy of education evaluation (if available), education certificates, mark sheets,
(a) 10th (SSC), 11th and 12th (HSC)
(b) Bachelor Degree
(c) Master Degree
(d) Diploma
4. Copies of additional technical training certificate(s) or award(s) received, if any.
5. Copy of Resent pay stubs. (2 pay stubs)
6. Copy of all previous H1 / L1 notices of approval
(a) Copy of Notice of approval (I –797)
(b) Copy of Petition(s) (form I –129)

E) Documents to sponsor H-4 VISA for the dependent of H-1B VISA holder.

1. Copy of Passport of spouse and children (If applicable):

(a) First 5 pages
(b) Last 4 pages
(c) All pages with stamped US visas.
(d) Pages reflecting stamped dates, for each US arrival & departure

2. I-94 back and front for self, spouse & children as applicable.

3. For every previous H or L classification:

(a) Copy of Notice of approval (I –797)

4. Marriage certificate if applicable.

5. Birth certificate for children if applicable.

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When to File H1B
New H1 B
The next H1B cap numbers become available on October 1, 2006, which is the first day of
the next fiscal year. Cases requesting those numbers can be filed up to six months in advance,
on April 1, 2006. H1B beneficiary can work for the petitioner only after an H1 Approval
notice is received by the petitioner from INS.

H1B Visa Transfer

When to file for transfer
Petitions should be filed as soon as possible, but no more than 6 months before the proposed
employment will begin or the extension of stay is required. Processing and approval of H1
petitions is taking between 90 to 180 unless expedited through premium processing.

The H1B beneficiary is allowed to work for his sponsoring petitioner of the H1 transfer once
the petitioner receives a copy of the H1 receipt notice.

H-1B nonimmigrant may change jobs upon the filing of a new petition by the new employer
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.

An H1B nonimmigrant is allowed to change an employer once his green card sponsoring
employer has filed for adjustment of status and whose cases has been pending for 180 days or
more. However, its must be ensured that the new job offer MUST match the underlying labor
condition set forth in the labor certification or I-140 petition, with similar job title, job duties
and wages.

Required Documentation for H1B visa holder?

Ans: Similar to documents require for new H1B petition filing

L1 to H1 Change of Status
When interviewing L1 visa holders for a potential opportunity to change employment and
immigration status to H1, it is imperative that the potential candidate is placed at a client site
within 30 days of issuance of H1 Approval (if the potential resides in US or 60 days if the
potential resides abroad).

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A change of status is requested when petitioning for an H1 approval for a L1 visa holder.
Hence the L1 holder no longer holds an L status once an H1 is approved.

Period of stay
Please note that both stays combined may not exceed 6 years.

Scenario:
Potential is working with IBM on a L1 visa. XYZ Company applies for a change of status to
H1 and receives an H1 approval. The Potential is now in H Status. He cannot lawfully work
for IBM anymore since he now is a H1B beneficiary of XYZ Company.

Frequently Asked Questions on L1 to H1?

1. If a person was here on L1 for 2 years and then on H1 for 3 years would the
extension of H1 be for 1 OR for 3 more years?
Does L1 status count in computing the 6 years of H1?

Ans: Yes, Both stays combined may not exceed 6 years.

2. I am currently on L1 visa for the last 6 months. I would like to know if it is possible to
convert from L1 to H1 visa? If it is possible, should one leave the country and re-enter
with the new stamp and can one start working immediately on filing H1?

Ans: It is possible if you otherwise qualify. If you are maintaining appropriate status, you can
convert without leaving USA.

3. I understand that L1 to H1B conversion is possible. But given the H1B cap of 65000
and the chances of it getting filled up by March, 2004, I am concerned whether I should
apply for this conversion before March? In other words, is the cap on new H1 visas,
applicable to L1 to H1 conversion?

Ans: L-1 to H-1 conversions are subject to the cap.

4. I am currently working on an L1 visa for Employer A. Employer B has sponsored a

H1B visa for me and I got a H1B approval notice from USCIS last week.
Can I continue to work for Employer A on the L1 now and will my L1 visa be invalid
after the H1B is approved?

Ans: Look at the date of the H-1 approval. If your status is adjusted to H-1, you can no
longer work on L-1.

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5. (a)Currently I am on L1 visa with company A with visa expiry date June 6th 2005
I got a job offer from company B to work on one of his project. Company B is
asking to join his company immediately. But company B is saying I can start
working with him immediately. But he is telling me that he will do the H1
premium processing and I can be on his payroll from October .Is it legal to work
on company B immediately without having visa with company B?
(b) Will it affect my status? Please clarify.
(c) Since I am on L1 Blanket visa with company A if the project ends with company
and how long can I stay in US legally. Is there any time period to leave the
country?

Ans:
(a) No, it is not.
(b) You will be violating your status.
(c)There is no grace period for project termination.

Frequently Asked Questions on H1?

1) I am currently on an H-1B visa through Company 'A'. I am considering another offer
from company 'B'. Do I need a new H-1B Approval from Company B? When can I start
working for company B?

Ans: Yes, you need company B first transfer your H1B by filing an H1 petition. You can begin
employment with company B only after the INS issues and H1 receipt notice for the H1
petition that was filed for you specifically.

2) Does the H1B Cap affect the H1 transfer process?

Ans: No, the H1 transfer is a separate process, and it has nothing to do with H1 cap. It is a
transfer of your existing H1 approval to a new company and is not a ‘new’ H1B.

3) Do you need to inform your present employer about your Visa Transfer? Is there any
way that my current employer can come to know about my H1b transfer?

Ans : No! you are not required to inform your current employer, however it is mandated by
USCIS that your present employer cancel your H1 due to willful termination of employment.

4) Is there any limit for the number of times I transfer my H1B visa?

Ans: There is no such limit; you can apply for as many transfers as you want.

5) What if a person holding a H1 for Company 'A', applies for an H1 transfer through
Company 'B', and once the transfer is approved, he changes his mind and doesn't join
this company 'B'. Can he continue to work for his original company 'A'?

Ans: Yes! (A person can have multiple H1, but can work for only one company at a time.)
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6) Can an H1B visa holder intend to immigrate permanently to the USA?

Ans: Yes. An H1B visa holder can be the beneficiary of an immigrant visa petition, apply for
adjustment of status, or take other steps toward Lawful Permanent Resident (Green Card)
status without affecting their H1B status. This is known as "dual intent" and has been
recognized in the immigration law since passage of the Immigration Act of 1990. During the
time that the application for AOS status is pending, an alien may travel on his or her H1B
visa rather than obtaining advance parole or requesting other advance permission from
Immigration to return to the USA.

7) How long can a foreign national be in H1B status?

Ans: Under current law, you can be in H1B status for a maximum period of six (6) years at a
time. After that time you must remain outside the USA for one year before another H1B
petition can be approved. In addition, certain aliens may obtain an extension of H1B status
beyond the 6 year maximum period, when:
1) 365 days or more have passed since the filing of any application for labor
certification, Form ETA 750, that is required or used by the alien to obtain status as
an EB immigrant, or
2) 365 days or more have passed since the filing of an EB immigrant petition.

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