H1B Visa Employer – Employee Relationship Memo by USCIS aka Neufeld Memo

In H1B Visa News by KumarUpdated : 243 Comments

USCIS released this new Guidance Memorandum on Establishing the “Employee-Employer Relationship” for H-1B Petitions explaining clearly the description of Employee and Employer relationship and what USCIS  would consider before they approve H1B visa petitions starting from 2011 Quota. They had to release this because of two supreme court cases related to H1B Employee Employer relation issues. Below are some of the very key points of the Employer -Employee Relationship

IT Consulting Companies as H1B Employers:

One of the very common things we see in the IT Consulting business is a scenario as explained by USICS as  below

“Third-Party Placement/ “Job-Shop” The petitioner is a computer consulting company. The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis. The beneficiary is a computer analyst. The beneficiary has been assigned to-work for the third-party company to fill a core position to maintain the third-party company’s payroll. Once placed at the client company, the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments. The beneficiary’s end-product, the payroll, is not in any way related to the petitioner’s line of business, which is computer consulting. The beneficiary’s progress reviews are completed by the client company, not the petitioner.  [Petitioner Has No Right to Control; No Exercise of Control].

If you look in the last line, USCIS consider this kind of scenario that the petitioner has No Right to Control or No Excerise of Control.

What does “No Right of Control” mean for filing H1B visa Petition ?

It is stated by USCIS that ‘USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job.’  Here the H1B sponsoring company is the employer (Petitioner) and Beneficiary is the person who is seeking H1B and planning to work as consultant for the employer.  USCIS mentions that the H1B petition filing company must clearly show that the employer-employee relationship exists between the H1B sponsoring company and the person they are sponsoring H1B visa and H1B sponsoring  company has the right to control the beneficiary’s work including ability to hire, fire and supervise the beneficiary. The sponsoring company should submit proof for the duration of the H1-B validity period. There are a set of requirements they ask for.  Read these full requirements : Guideline for Employer Employee Relationship for H1B visa petition. USICS determines the case approval based on the information submitted. They can deny if the submitted proof documents are not clear.  For sake of clarity, details are posted in another article post.

What does it mean to all the Small IT Consulting Companies ?

It impacts a lot for all the small and mid-size IT companies that work on Job-shop concept by placing consultants at client locations and do not have any direct control over their employees. All these small and mid size IT companies, especially all the Desi Consulting Companies will have a hard time convincing USCIS and providing proof to indicate the right of control. Larger IT companies with on-site consultants doing development/support on behalf of the IT company are in good shape. If the consulting company does not have an implementation on site, then it is hard.

What should you look for when you seek employer for H1B visa petition ?

Piece of advice based on USCIS regulations, “make sure the IT consulting company you seek H1B visa employment have On site Client project implementations and the H1B sponsoring company will be controlling you, assigning work, giving you pay hikes, etc”. If that is not the case, there is a very high chance that your H1B visa petition will be denied.  Because, as per the regulations, without the above condition, your application will not satisfy the employee and employer relationship and right to control.

Thanks to Joe for sending me the latest info. All the information is publicly available at USCIS website. You should visit USCIS website and read original memorandum for more information. Check out the original document as released by USCIS H1B Employer-Employee Memorandum

Other Articles


Comments ( 243 )

  1. ritika

    Hi,

    I got my H1 approval yesterday, but the validity is just one year i.e till 11/2012. Will there be any problem during the extension ?What all documents i have to produce during the time of visa extension next year? why did they give only one year of validity ..any idea.

    Thanks ..

    1. Nikhil N

      There are a lot of reasons for getting the visa with just a year’s validity. Are you in an EVC or a EC model? If yes, if your client letter and/or vendor later states your project is not a long term one or if they have mentioned a end date within the next 1 yr, then USCIS thinks you dont need a visa for more than a year

    2. administrator
      Saurabh

      There wouldn’t be any issue during extension just because your current visa is for 1 year. You and your employer will have to submit all the relevant documents (just like they did for current H-1 approval) and USCIS would adjudicate them and either approve/deny the extension. If you would have worked in US during this time, then you will have to submit H-1 payslips and W-2 as well.

  2. ritika

    Hi,
    I got a mail from USCIS saying my H1b is approved and the status is in post decision. After a couple of hours, i got another mail with case status changed to decision.
    Can I take it as approval of my H1 or can they change the status again to initial review? I am worried because my lawyer didn’t receive any notification regarding this. Please clarify.

    1. Nikhil N

      Ritika, Congrats on your H1. Dont worry, your visa is approved. The exact same thing happened but my attorney got the email confirmation the next day and the official documents followed soon. So you are good to go.

    2. administrator
      Saurabh

      Seems like it has already been answered and you have received the documents. For the sake of clarity of others, there is not much difference b/w post decision activity and decision. Once it says approved, you can safely assume it to be approved for good. Alarm should raise if it goes from one of those 2 statuses back to Acceptance of Initial Review.

      Good luck!

  3. Alok Deshpande

    Hi,

    I am working with a company in India and the same company has applied for H1B visa throught the premium category.
    I was notified today that my LCa was in “denial” stage and they will be applying again.

    What does this mean?Is it something to do with the documents mis match etc.
    Or is it the end of the road for me?

    Please do reply.

    Regards,

    Alok

    1. administrator
      Saurabh

      The employer or attorney would know the actual reason of denial. There can be several reasons for denials. It’s not the end of the road. After correcting the reasons for denials, either the same employer or a different employer can file LCA and I-129 for you.

  4. Madhur

    Hi,

    Is the visa application treated differently for a Big consulting firm like Delloite, Accenture and small firms?

    I will need a new visa application every time I switch to a different client?

    1. administrator
      Saurabh

      USCIS is planning to provide more clarification on this soon. At this point, there seems to be some confusion. Basically an amendment needs to be filed whenever there are material changes in the LCA. Work location is a material change. At times, they consider new client as a material change, which in turn means a new I-129. I have read about few rejections related to this. However, as there is no official comment by USCIS on this, different companies are treating this differently. Check w/ your attorney on how your company is handling such situations.

      1. Madhur

        So my firm has like 20 clients where I might work. Can they file a lca mentioning these 20 locations? Do they have to mention the tome frame also? My firm is doing h1 for the first time and so the process is not set yet.

        1. administrator
          Saurabh

          I suppose they can mention various locations in the LCA (but I am not sure). If this is your employer’s first H-1 filing, then it’s better for them to hire an attorney to make sure everything is done correctly.

  5. Pramod

    Hi ,
    I am working in US on L1 B status since 2008. My Visa is expiring on Nov 23rd and unfortunately due to some confusion my organization is applying for change of status to H1 B premium only 10 days before expiry.
    My org told me that I can stay in US past the expiry of Visa and I 94 till my COS application is in process. I understand that premium category also take 14 days. so does that mean I can stay 4-5 days after Visa expiry and wait for result. Please note that I am working with same employer since 2008 and am still working.

    I want to know if my org is correct in guiding me?
    pls help

  6. ritika

    1-I am in H4.My employer has filled my LCA and other process are pending which are likely to be filled in other 1 week . He is doing it in premium processing. At this point of time, can i travel to India for 2 weeks and get h1 stamped while returning back. (if it is approved)?

    2- My husband is trying to transfer his h1 . In that case, should he transfer my h4 to his employer ? Will there be any problem if i travel with out transferring my h4 to the new employer?

    1. administrator
      Saurabh

      1. Yes, but if 221g is issued then you will be stuck until it gets processed. Also, your COS would be abandoned if you leave US while H-1 is still processing. This may not be of big impact if you are planning to get H-1 stamped in your home country.
      2. I assume you are traveling to India for sure. H-4 is attached to primary beneficiary (i.e. your husband) and not to the petitioner (i.e. employer). So even if you are not added it should be ok. If you return on H-1, then H-4 doesn’t count anymore. If you do decide to return on H-4 visa stamp then you will be issued a new I-94 based on the 797 expiration date of your husband’s employer at that time.

  7. MN

    Hi,
    My husband was working on H1B in US. Unfortunately, he passed away last month. I am on H4 visa and my visa is expiring this month. I have already applied for change of status to B2 Visa. However it will take 2.5 months to get it approved. I am in a dilemma what to do, whether to stay back in US and look for a job or to move back to India. My son goes to school here and he doesn’t want to relocate. I am afraid to move back too due to the tag of being a widow and looked down upon by family and relatives. My concerns are
    1) Is it possible for me to apply for H1B visa right now? I don’t have any work experience, but I am a B.E graduate in Computer Science(graduated in 2000). Can I find someone to sponsor H1B.
    2) Can I stay back in US and apply for student visa ? If so how do I go about it ?(I do understand that I can’t work in student visa).

    Any info will be really appreciated. I need to make a decision within a month. Because I don’t want to spend money for rent if I am not planning to pursue staying in US.
    Thanks .

    1. administrator
      Saurabh

      1. It may be tough to find a good credible employer on H-1 given your profile (no work experience). You can search for it, but it may be tough. You can look for employers on job sites like dice, monster, career builder or through your personal/professional network.
      2. That is also an option, but you will have to find a school who would then issue I-20 for you and you can then apply for COS to F-1.

      I would suggest also talking to an immigration lawyer to understand all options available to you.

  8. amala

    Hi,

    i am in india and have not traveeled to US..i have applied for H1B visa for client A and it is pending at USCIS. once the visa is approved. can i use this visa to work for client B. if no, then what are all the steps i need to follow to use the visa for client B.. please provide me some information on this…

      1. amala

        Thanks for you reply. so do i need to submit all the documents like resume, affidavit etc to USCIS again? and will i get new visa ? . will there be visa interview again?

        1. administrator
          Saurabh

          Yes, your employer will have to send all the documents. If you already have an unexpired visa stamp, then you don’t need to go for stamping again. Else you will have to go for stamping.

  9. Manju

    Kumar,

    i got approval notice for H1B visa and planning to have appointment next week. If everything goes fine, i will be travelling last week of Oct 2011
    As we are expecting baby in december 2011, i have to travel back to INDIA for a week to be with my wife.
    Few qestions:
    Is there any complications like chances of sending back at POE (after vacation)?
    Do i need to get new I 94 or can i use the one which i get first time ?
    Do i need to ask for Multiple entry visa ?
    Please suggest me

    1. administrator
      Saurabh

      No complications while returning as long as your employment is still valid. It would be nice to carry payslips for your H-1 period along w/ a more recent employment letter from the employer. A new I-94 is always issued when a person enters US. This is I-94 needs to be returned when leaving US. H-1B visa is usually multiple entry visa by default.

  10. Ram

    Hi
    Thanks for helping. my question is , I came here in Nov2010 , (2010 Quota), I have transfer memorandum given by my employer as I had to work on different location than the location in the Approved petition. In that memorandum, in its stated as “In accordance with the October 23rd, 2003 letter from Mr. Efren Hernandez, Director of Business And Trade Branch Of Citizenship & Immigration Services (CIS), you may transfer to the New Location without filing new or amended petition.”
    1. Now Is it mean like if I am moved to different client at different location, my employer need not to file the amended petition (which is it seems mandatory these days) ? And only new LCA is required? Please guide.
    2. Second question is, If I switched to other employer (H1b Transfer) then is it like new employer needs to file amended petition, and if SO are there any chances of rejection. I want to know this as my visa is valid for next 2 years and if I get good opportunity in other employer , then what % of chances of getting amended petition rejected with new employer ?

    Thanks in advance

    –Ram

    1. administrator
      Saurabh

      1. I would say amended petition needs to be filed along w/ new LCA. However, you check w/ an attorney on what needs to be done, as ultimately it’s up to the employer whether they want to file the amended petition or not. Some employers file the amendment, while others don’t.
      2. When the new employer files the petition, it won’t be an amendment but a brand new petition which would be cap-exempt. Chances of success depend upon the employer, your profile and proposed job. It is never possible to give % of chance, as it varies from case to case.

  11. Soma

    I am working in a IT company in India. I have H1B valid petition for a client A of state Delaware. But i got an opportunity of working for client B of state GA. Now for processing VISA i was asked by my employer to file new LCA for client B. My new LCA got approved. Now my employer is asking me to file for amended prtition for further process for VISA as kolkata consulate does not APPROVE VISA without amended petition. Is it true? If it is true then why do i need new LCA for working for client B. My next question is that how long time it will take for amending. If my petition will get amend then is there any change getting rejection of VISA with amended petition. I am really in very much confusion. Please help!!!

    1. administrator
      Saurabh

      I was going through the USCIS website and this is what I interpret. Job location change would require a new LCA to be filed. As LCA is the underlying entity of H-1 petition (I-129), update of LCA is a “material” change and triggers an amendment of I-129. So looks like an amended I-129 needs to be filed. Amendment may take 2-3 months. As long as you have project/client information, I don’t see any reason why they would approve the original petition and not the amendment.

  12. Nalini

    I have my B1/B2 stamped from my previous employer(MNC) in India. My Petition is approved till 2020 and I have never travelled on my B1/B2.

    My husband’s employer is filing his H1B Visa in this month . I have plans to work in the US and want your advise to decide whether its better to travel to US on an existing B2 Visa or apply for a H4?

    Have few questions to be clarified in this regard: –
    1. Can I apply for jobs in US or attend Job Interviews on H4 visa or my current B1/B2 visa?
    2.
    a) Will it be possible to change the B2 visa to H1B visa on finding a job in US company after travelling to US? Do I need to travel back to India for H1B visa stamping?
    b) Will it be possible to change the H4 visa to H1B visa on finding a job in US company after travelling to US? Do I need to travel back to India for H1B visa stamping?

    3. If I go for H4 (dependant) visa stamping on my husband’s petition, does my B1/B2 get cancelled?

    Regards,
    Nalini

    1. administrator
      Saurabh

      1. H-4 is better option as it allows you to stay for a longer duration (max time allowed on B-1/B-2 is 6 months).
      2. Stamping is not immediately required if H-1 is approved w/ COS. However, if COS is not approved, then you will have to travel out of US to get H-1 stamped and then enter to work on H-1. COS from B-1 is always tougher than COS from H-4.
      3. Most probably it would. VO generally cancels B1/B2 w/o prejudice when one goes for H1/H4 stamping.

  13. Rimpy

    Hi

    I applied my H1b through a small desi consultancy and got a RFE. Meanwhile if another direct client company is willing to sponsor a new h1 for me, can they do it with this RFE pending ? Also will there be a black mark if this h1 through a small company is rejected if Iam going to apply a new h1 for a direct client in the near future ( within the next 3 months ) ?Can you please help ?

    1. administrator
      Saurabh

      The other company can apply for H-1. It won’t be black mark unless they found issue w/ your documentation. If the RFE was related to employer and job, then that wouldn’t impact your future statuses and filings.

      1. Rimpy

        Thanks Saurabh, also I want to ask you about my friend’s husband case. He has applied GC under EB3 and his priorty date is 2007. But as you know, current priority date for EB3 is somewhere around 2003/2004. His current employer/client has offered him a position/title change . Can he apply a new PERM under EB2 with this role/position/title change ? I heard from some of my friends that we can apply under EB2 if the role changes and if he/she is promoted. If he could apply then he can use his priority date at the time of applying 485 as to get his EAD faster. Is it possible ?Can I have your opinion please ?

  14. Adhara

    I have my H1B stamped from my current employer(MNC) in India. My Petition is approved till 2013 and I have never travelled on my H1B .i.e. no salary stubs in US.
    My husband is currently in US on his H1B.
    If I go for H4 (dependant) visa stamping on my husband’s petition:
    1. Does my H1B get cancelled?
    2. Will it be possible to resume the H1B if I find an employer while I am on H4 in US? Or New employer has to file a new H1 petition?
    3. How does COS (H1-H4 and viceversa) work for first time H1B holders like me?

    Thanks,
    Adhara

    1. administrator
      Saurabh

      1. The VO can cancel your H-1 w/o prejudice. He may question about your H-1, and you should reply that you don’t plan to work on it (as you will be going on H-4 status which doesn’t allow one to work).
      2. You can file COS from H-4 to H-1. Once approved you can start working on H-1. If it’s a different employer then a new petition needs to be filed, else just COS.
      3. You need to submit your H-1 petition (to show that you have been counted in the cap) and your husband’s payslips (to show that you are maintaining legal status in US), along w/ rest of the employer documentation (client/project details etc). Once COS is approved, you will be on H-1 and need to start working on that visa. It can either be filed through old employer or new employer.

  15. Nikhil N

    Hello,

    I came to the US in 2007 on a F1 visa and did my Masters degree. I am currently employed by a desi consultancy and work for a ‘client’ at the client’s location. Its a highly skilled job position and the job responsibilities are clearly detailed out with no ambiguities. My H1 visa was approved which was filed by my employer(consultancy). Its been 4 years since I visited India and now I finally have a chance to go. I will be going to the Chennai consulate to get my stamping. But I have been hearing horror stories about people not getting their H1s approved and the rate is quite high(more than 50% of the applicants). What can I expect when I go for stamping and how do I minimize(or completely eliminate if possible) my chances of denial???
    I am going to India in december and will have finished 9 months at the client location with a contract termination not in the vicinity for sometime. I have a client and a mid vendor letter that say its a long term project. PLEASE HELP….. I AM FREAKED OUT !!!!!!!!!

    1. administrator
      Saurabh

      You seem to be working in an EVC model (employer-vendor-client). Typically the officer looks for following information in such cases (besides the usual set of documents):
      – contracts b/w different entities and their duration
      – how employer maintains employer-employee control while you are working at client site w/ a vendor in b/w

      There is always a high chance of 221g getting issued in such cases, but eventual approval/rejection would be determined by the documents you submit. So be prepared on the above two items and hopefully it would work out for you.

  16. Stefan

    Hi experts,

    I am currently on H1-B visa and am looking to start school in the fall 2011. I am looking to have my H1-B visa transferred into F1. The questions I have are:

    I. Can I attend school while the transfer is in process? It takes about two or three months for the transfer to complete

    II. Are there any negative implications with me going from H1B back to F1. I have been in US for more than 9 years, with six years on a F1 visa, 1 year on OPT and 2 years on H1B.

    Thank you for your help!!!

    1. administrator
      Saurabh

      1. Yes, but you will be attending the school on H-1 and not F-1. Make sure your school knows that. Once your F-1 is approved, you can update your status in the school records by contacting DSO.
      2. If this is not a higher degree then you will not be eligible for OPT after completing your studies. Also, your 6 year clock will not reset as you didn’t stay outside of US for more than 1 year. So your remaining time on H-1 would be 4 years. Can’t think of any other disadvantage.

      1. Stefan

        Thank you Saurabh.

        While attending school on H1, do I have to continue working or can I start attending full time? Is it possible to do an H1-F1 visa transfer after you leave the employer?

        Above you say, make sure your school knows that. I have been attending this school for the past two years on H1, so I would think they know about my case. Are you referring to anyone special that I should make sure to talk to?
        Thank you!!!

        Stefan

        1. administrator
          Saurabh

          As long as you are on H-1, your obligation is to maintain that status, which means you need to be working full-time. Once your COS to F-1 is approved, you need to maintain full-time student status and stop working for H-1 employer.

          When I said make sure your school knows that I was referring to COS approval. Once your COS is approved to F-1, inform your school so that then they can update your SEVIS record as well (they might already know about it as they would have issued I-20).

  17. Nayan

    Hi Kumar,

    I have got H1B visa stamped on the passport but never traveled to USA. My current visa is expiring in next month, so companies are not taking risk of planning my travel at the end. My question is after expiration of my valid visa, is it possible for any company to file new petition which start from October 2011? Is my case valid for filling new petition during this after expiration of visa. Do I have to go through CAP? I would really appreciate your guidance in this regards.

    Regards,
    Nayan

    1. administrator
      Saurabh

      There are two possibilities:
      1. A company files H-1 petition for you, and submits old petition as proof that you have already been counted in the quota. You will not be subject to cap in this case, and are not bound by 1st Oct travel date.
      2. A company files H-1 petition for you, and doesn’t submit old petition. You will be subject to quota in this case, and cannot travel prior to 1st Oct.

  18. Alan

    Kumar,

    Thank you for your work here!
    My question is, I’m currently RFEed on my H1B case. If I withdraw the petition or don’t response to the RFE request, what will be the difference? My lawyer said there’s no difference, I just want to double check.

    Another question is, since my OPT ends Next January, while I’m getting a new F1 status next Fall, there’d be about 5-6 month gap of status. If I go back home country to apply for an off-shore F1 visa stamp, will my denial history on H1B this year in America affect that F1 visa application? My lawyer said it doesn’t matter, still I want to double check.

    It’s an urgent question, because my RFE deadline is in a week.

    Appreciate your kind reply in advance,
    Thanks!
    Alan

    1. administrator
      Saurabh

      Yes and no. Technically you will be considered out of quota in both scenarios. However, in one case your petition will be considered denied (when you don’t respond) and in the other case it will be considered canceled/withdrawn. In the long run, it doesn’t matter whether it was denied or withdrawn.

      F-1 visa is issued considering the alien would not immigrate and would return to his/her home country. By filing for H-1, you have shown that you want to continue and work in US (H-1 is dual intent visa). I don’t know how it would play out when you go for your H-1 stamping. Talk to your lawyer about this.

      1. Alan

        Thank you for your reply, Saurabh.
        I decide to withdraw the petition. The lawyer said when going for F-1 stamping off-shore, the denial history only involves with counselor rejection scenario, say you got rejected by a VO off-shore face-to-face, as far as the H1B visa was not issued to the applicant. Anyway, if you apply for F1 and need to file DS-156 form, answer no to the question of “have you ever been rejected on any US visa”.

        So the question comes to how the denial history would affect an applicant for a just reason? My understanding is, the history will leave some trace, but not affecting. Imagine you’re the one who judge if should put any negative impact on an applicant’s subsequent application, pull out his/her file, see the denial history of H1B sometime ago, and see the sub-catagory of denial reason was 1) withdrawal or 2)not sufficient evidence. The difference is here, and very minimal. The lawyer said, even if not response to USCIS, it would not be considered a prejudice.

        If the mere action of filing H1B itself proves the intention of immigration, no matter it got approved or denied, then there’s nothing could be done. However, these years the USCIS has been fairly generous to F1 visas… After all, most cases would be no worse than when you got the H1B and then apply for a transfer to F1, even that was acceptable…..

  19. Siddhartha

    Hi,

    I’ve been nominated for H1B for the 2012 fiscal. Does that mean I would be visa ready by Sept-Oct 2012 if in case my petitions is through?

    Thanks,
    Sid

    1. administrator
      Saurabh

      Once your company files the petition, USCIS may take 2-6 months to adjudicate. If you are filing from outside US, then you will have to go for stamping which is another month. Only after that, you will be ready to enter US on H-1.

      Any queries (RFE or 221g) issued during the process can further delay the adjudication.

  20. Siddhartha

    Hi,

    I’ve submitted my resignation with my current employer w.e.f. 1st July 2011. In order to retain me, my employer has agreed upon filing my H1B visa. I need to know whether there are additional H1b slots opened up for 2011-12 year or they are just trying to fool me.

    Thanks,
    Sid

      1. Siddhartha

        Thanks for the reply!
        My next questions would be

        1). Would this be based on H1b lottery?
        2). How long would it take to get H1b stamped if I’m lucky enough to make it in the lottery?

        -Siddhartha

        1. administrator
          Saurabh

          1. There is no lottery at the moment. It happens only when USCIS receives more petitions than the numerical quota available, which hasn’t happened this year.
          2. Petition approval may take 2-6 months depending upon processing center, backlog etc. Any RFE issued can further delay the process. Once approved, you can go for stamping, which may take 1 week to few months, depending upon whether 221g is issued or not.

          1. Siddhartha

            Hey Saurabh..! Many thanks for ur response.

            When you say there is no lottery at the moment, what would happen if USCIS receives more number of petitions than the available quota for this fiscal year? Won’t they resort to the lottery system then? I read somewhere that out of 65000 limit, only 19000 valid petitions have been received by USCIS.

            What do you mean by RFE and 221g??

            Thanks,
            Siddhartha

          2. administrator
            Saurabh

            Let me more clear. Lottery happens if and only if on a particular date petitions received is less than quota, and the next business days USCIS receives enough petitions to go over the quota. And then too, only the petitions received on the last day undergo lottery. The ones received prior to last day do not undergo lottery.

            Taking a more specific example:
            – Petitions received until 10 Dec 2011: 64,500
            – Petitions received on 10 Dec 2011: 1,000

            In this case, USCIS would conduct lottery of those 1,000 petitions to select 500 petitions so that count becomes equal to the maximum cap i.e. 65,000.

            RFE and 221g are issued when USCIS and consulate need additional documents from the petitioner (i.e. your employer) to process the petition.

            Does that help?

          3. Siddhartha

            That surely helps Saurabh…! Thanks so much to clear all the misconceptions that I had in my mind regarding H1B.

            It seems staying back with my current employer would be a better choice.

            Thanks,
            Siddhartha

          4. Abhaya

            Hi Saurabh,

            My employer has filled H1-B in second week of june 2011….We are planning to convert
            it to premium in frst week of August 2011…so that we get petition approval in august
            third week,after that I can go for Visa stamping in second or third week of september….is this the
            right approach?What do u suggest in going for premium in august frst week….My friend
            is guessing that in august second or thrd week petition may be approved thru
            regular process only….in tht case waste of converting in to premium….What u suggest?
            can I go for premium conversion in august frst week?

            Thanks in advance!!!!

          5. administrator
            Saurabh

            There is always a backlog at USCIS processing centers, and petitions at times do not get adjudicated within stipulated 2 months.

            You should do a backward math. Decide when you want to travel to US. Subtract one month for H-1 stamping. So by that time you need your petition w/ you. Subtract another 2-3 weeks for premium processing. If by that date you do not receive approval by regular process, you can ask for the upgrade. It costs $1225, so companies often use it only when it is necessary.

  21. Rahul

    Hi Saurabh…I have approved H1B petition. However, the project location has changed and I will have to get the petition amended. is the H1B amendment on hold or mass rejected by the councilate..Pl. let me know

    1. administrator
      Saurabh

      If it is just change in work location, w/ no major change in your responsibilities and skills/expertise required to perform those duties, then your employer needs to file a new LCA. H-1 amendment is not required. Your employer should be able to do that.

      LCAs do not have a long processing time, and as long as proposed job requires specialized knowledge and mentioned salary is above prevailing wages, you should be fine.

      1. sat

        Is this true that we dont have to file an H1B amendment for a location change? I contacted a few lawyers and they have given me mixed feelers.

        1. administrator
          Saurabh

          I think new LCA needs to be filed, but H-1 amendment doesn’t need to be filed for change in work location. But I am no qualified attorney, and you should get a legal advice from a qualified immigration lawyer if you are hearing different things.

      2. Abhaya

        Hi Saurabh,

        My L1 got rejected in Dec 2010…. planning to go for stamping in the month of
        20 September 2011 ..How are the chances of suceeding in H1 stamping,if I go at arround
        20 september 2011?

        Thanks,
        Abhaya

        1. administrator
          Saurabh

          H-1 stamping is not seasonal i.e. it doesn’t have good months or bad months. As long as you have all the required documents from your employer, you should be fine. Else any day can be a bad day.

  22. Anindya Saha

    Hi, This is Anindya Saha from kolkata but I want to go Dubai or U.S for services but I have no idea…how to get scope to go abroad…Plz anybody have idea about that then help me as soon as possible. My mobile number is:[admin removed ] . Plz plz plz plz help me…..

    1. administrator
      Saurabh

      You need to find an employer who is willing to sponsor H-1 or L-1 for you based on your profile and proposed job requirements. There are articles on this blog related to that. You can search for relevant information there, and then post specific questions.

  23. patricia

    Hi:
    I’m a Mechanical Engineer, I studied in a California’s University, I have extended my OPT twice and now I’m working for a good company “BIG”, my lawyer applied for H1B visa on april, the problem is that I don’t have a direct contract with my company, I am a lease employee, the BIG comany is very good and is planning to keep me for longer time, now, USCIS is requesting the contract between the visa sponsor company and the BIG company. I talked to them today and just find out that the visa sponsoring company does not have a contract with the “BIG” company, they have a contract with another contractor, and this contractor is the one who has the contract with the BIG company, how high are the possibilities that USCIS deny my visa?.
    Thank you.

    1. administrator
      Saurabh

      Sometime ago, USCIS provided more clarification on the employer-employee control relationship, which in simple words means that the employer needs to show how they control their employee’s duties who is working at a client site. It’s easier to show this when there is a direct contract b/w your employer and the end client. However, if there multiple layers in b/w (like yours), it becomes more difficult.

      For more information, read this: Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions

  24. Taurean

    Hello, my boyfriend has the H1B and is just starting his renewal process (visa expires Sept. 17). His current attorney told him the renewal processing fee she is charging him is almost $3000. This seems a bit steep. We are located in Seattle, Wa and he works for a very small graphic design firm that can only afford to pay $1500 of his fees.
    Is $3000 a fair price?? Does anyone know a cheaper attorney or method that could help?

    Thank you.

    1. administrator
      Saurabh

      Ask for a fees break-up. There is certain portion of the fees that’s non-negotiable (i.e. the actual fees that goes to USCIS) and there is certain portion that’s negotiable (i.e. the amount that goes to the attorney). Once you have that number, you would know what your baseline is (i.e. the non-negotiable amount) and can start shopping for attorneys w/ lowest fees.

  25. Aditya

    Hello,

    I understand the following after reading all the material on site:
    1. If I (or my company: a big bad american MNC) apply for a H1B visa now (June 2011) the earliest that I can start working is on or after October 1st, 2011.

    Now my query:
    Is it possible for me to travel to US on B1, while I have a H1b visa application pending with the consulate? And in the event that the application is approved, will I have to come back to India to get the stamping done, or can I get it stamped from within US?

    Eagerly waiting for your comments!

    Thanks in advance.

    1. administrator
      Saurabh

      You can travel on B-1 as long as it has been filed for genuine reasons and you keep satisfying the reasons mentioned when filing the visa. You cannot use B-1 as a way around to work in US on H-1.

      Once you are in US, you can file for COS from B-1 to H-1 (assuming H-1 petition has been approved by then). USCIS may question your intention of entering US on B-1, and the onus will be on you to show that B-1 wasn’t used just to enter US and file COS and avoid visa stamping. If COS is not filed or H-1 is not approved while you are in US or COS is denied, then you will have to return to India, get H-1 stamped and then enter US on that visa stamp.

      1. Aditya

        Hi Saurabh,

        Thanks a million for taking time out to respond to my query.

        So I guess the safest option is to come back to India and get the H1 stamped here itself.

        But during the interview with the Consulate officer will I have to explain my reasons to travel to US on B1, even though I had an H1 petition pending / approved? If Yes, then any idea on what should be a **good** reply?

        Thanks again for your advise!

        1. administrator
          Saurabh

          If you have genuine reasons to travel on B-1, then you should be fine. A **good** reply would be the truth :).

          1. Aditya

            Thank you again for your valuable insights! This has helped me immensely in charting out my course for the next few months! I now know where to turn to if I have any more doubts!

  26. Neelima

    I’m working in small company ,Its not E verified ..My company is growing well.They are giving bonus.increasing salary ……past one year i’m working this company with my CPT . May 22 2011 my OPT started .please let me know what i need to do to continue with this company ……(I know first year OPT we can do work without E verified companies after that i don’t know how to proceed ) ……… It will be so helpful if you give me any suggestion .
    Thank you

    1. allan

      if you and your employer have good relationship, then talk them into sponsoring H1B for you. You can start H1B this year too, still a lot of cap room. Your position has to be specialty occupation though. What do you do?
      Or you can wait until April next year.

      1. Neelima

        Thank you for reply Allan.
        But My company is not E-verified ,still can i continue work if my employer applied H1 for me with out E-verification .I am working as a .net dev and
        can you please let me know for H1 how much minimum sal we need to have .
        Saurabh ,i am waiting for your reply also .
        Thank you for advance.

        1. administrator
          Saurabh

          You can continue to work for the employer for 1 year (until OPT expiration date) w/o any issues. In b/w your employer can file for H-1 w/ COS and once approved, you can work for the employer on H-1. E-verification comes into picture only during OPT extension.

          There is no minimum salary requirement on OPT. Just ensure you are getting paid regularly (H-1 has minimum salary requirements).

          Remember to inform your employer about the OPT, as you need to work fulltime now. The employer should also update your employment records (I-9 form).

          1. Neelima

            Thank you so much for spending your valuable time to reply Our questions.Its very helpful for us.

          2. Neelima

            Thank you so much for valuable Reply’s
            My F1 exp date Jan 30th 2012 and i have to go to India Nov 2011 to Dec 5th 2011.Is there any risk for traveling and Could you please let me know When is the perfect time to applying for H1 .How i need to proceed .Thank you for advance .

          3. administrator
            Saurabh

            If your company files H-1 for you, and it gets approved by your travel date, then you will have to get H-1 stamped from India and return on that visa stamp.

            If you are still on OPT at the time of travel, then you can return back on F-1 stamp and OPT card. Remember to get it endorsed by your DSO for travel.

            If your H-1 is pending at the time of travel w/ COS (F-1 to H-1), then COS will be abandoned, and your H-1 would get processed w/o COS. You will have to re-apply for COS or go out of US, get H-1 stamped and enter US on H-1 to work on H-1.

            Does that answer your question?

  27. Sameer

    My H1b approved in Nov 2008. But I came to US in 2011 January. I am currently on a project which is is for 6 months which is till September.And my visa is getting expired in September this year. Could you please tell me if I ll have any problem while applying for extension. Is ther any chance of denial.

    1. administrator
      Saurabh

      Your employer would have to show project/client information post Sep 2011 along w/ extension. USCIS would approve the extension only if they feel that you have maintained legal status in US, and can continue to maintain legal status (i.e. your employer has a project to place you and pay you).

  28. hari

    hii

    I am on l1b having 2 years validite , would like to apply for h1 , i would like to bring my wife she did her MTECH(CSE) she was willing to work here ,, if my h1 is approved how long should she be idle in the home …….n even how much time it takes to convert h4 to h1 …..

    plz suggest me ….

    1. administrator
      Saurabh

      She will have to find an employer who is willing to file H1 for her. The petition itself can be filed anytime while the quota is open. If the quota is closed, then the employer would have to wait for next year’s quota to open in order to file the petition.

    2. ram

      why do u want to go to h1b,Be on L1 and enjoy the benfits.If ur wife is coming here she will be be cming on L2,and ur wife will be getting EAD.She can work anywhere in USA without any restirction.She can work to any company on W-2.

    1. administrator
      Kumar

      Well, it may depending on what job role you are applying to…It just may make your case stronger for H1B due to technical education level.

    2. administrator
      Saurabh

      Also, in GC based on your Master’s degree you may be eligible for EB2 category (provided other EB2 conditions are satisfied).

  29. sonia

    I am currently on H4 visa and I talked with a consultant who is ready to file for my H1b after taking the training from them. He is giving 80% chances of getting it sucessful. Do you think i should go ahead, i mean how is the situation for H1b for this year. What will happen if the visa get rejected? is there lot of chances for the visa to get rejected? pls. let me know on this.

    thanks
    Sonia

    1. administrator
      Saurabh

      Success of the petition primarily depends upon employer credentials and if USCIS evaluates them to have enough resources/projects to pay you. Talk to the employer and ask them if they can submit project information along w/ H-1 filing. If they can’t submit that information, then there is strong possibility that your petition will be denied. Also ask for their past success rate in 2009 and 2010 (those are the years when USCIS became really strict w/ project/client information).

  30. Natesh

    Hi,

    Dependant H4 (wife) any possiblity of working in US ?? to utlize her free time and earn something there atleast by online jobs?

    Thanks
    Natesh

    1. administrator
      Saurabh

      A person on H-4 cannot work. Period.

      They can volunteer at organizations like American Red Cross, but they cannot be paid for their services. Also, they can only volunteer for a role/post where there are other people doing similar volunteering. In other words, she cannot volunteer at a consulting company.

  31. Ravi

    Hi,
    My GC process has just got done with the 2nd stage and im not sure when the final(3rd) phase would start!(my GC date is dec 2009). If my wife who;s on H4 now gets a job and gets converted to H1B visa and works till before my GC final stage starts, can her H1B status(suppose she is still on H1B then) be transfered back to H4 so that she can be added on my GC process as a dependent?

    Thanks,
    Ravi

    1. administrator
      Saurabh

      AFAIK, a person can be added as dependent even if the status is H-1. It doesn’t necessarily need to be H-4. You can check your immigration lawyer to confirm that.

      However, her H-1 won’t be approved beyond 6th year based on your GC filing. Once her 6 year clock has reached, and you guys haven’t received the EAD, she needs to move to another valid status (F-1 or H-4) or have her GC process started in a manner that allows her to file for H-1 extensions.

  32. Raghav

    My employer is planning to do an H1B process for FY2012. When does we exactly need to submit the documents as to win the race not to fall in the lottery system and to get the visa as early as possible. To add on is there anything called ” Early H1B processing”?.
    To add more.. We have our LCA posting and documents filed for the FY2011, but unfortunately the CAP Count for FY2011 was closed. Can we use the same LCA posting certificate to apply for FY2012.
    Note: This is the first time we are applying H1B visa.

    1. administrator
      Saurabh

      If the LCA dates have not passed or the job requirements and salary have not changed, then you can use the same LCA.

      The earliest filing date is 1st April 2011, and the earliest start date to work on H-1 is 1st Oct 2011.

      There is nothing like “Early H-1B processing”. H-1 can be filed at most 6 months prior to employment start date – if that’s what you meant (that is why to start employment on 1st Oct, an employer can file the H-1 as early as 1st Apr).

  33. Kishore

    Hi,

    I worked in US only for less than 1 year in 2008 and My H1visa got expired last May 2010. does my visa comes under quota under fresh application or needs to be renewed. Also, let me know which option is the best to get my H1 back?
    Thanks.

    1. administrator
      Saurabh

      There are 3 things:

      1. Your current H1 employer files for extension. You don’t need to be counted against quota again.

      2. A new employer does H1 transfer for you. You don’t need to be counted against quota again.

      3. A new employer files a fresh H1 for you. You need to be counted against quota.

      Because you have spent more than 1 year outside US, you can get up to 6 years of time on H1 in 3rd scenario; but in first two scenarios you will only remainder time of the 6 years.

      1. DINESH

        in case of transfer, 3 months pay stuffs are required, if i am not wrong.

        so how person will show pay stuffs if person is india.

        1. administrator
          Saurabh

          In case of transfer, one needs to prove that they have maintained legal status in US. To do that one needs payslips.

          If a person has worked in US for:
          – 0 month: they were never in US, so no need to prove that they maintained status in US => no payslips
          – 1 month: they need to show they maintained status during that month => 1 month’s payslip
          – 2 months: they need to show they maintained status during those 2 month => 2 months’ payslips
          – 3 or more months: they need to show they maintained status during the last few months => 3 months’ payslip

  34. Tejas

    I was in US for 3.5 years on H1b visa and returned to India in Feb2010. My employer cancelled my H1b subsequently.

    My current employer in India (American MNC), wants to sponsor my H1. My question is “Do I have any advantage over fresh H1 applicants due to my previous H1? ”. Is it true that I do not fall in the 65k quota as I have had a H1 previously ?

    1. administrator
      Saurabh

      This year’s quota is about to be filled. If you apply now, then you do not count towards quota.

      However, if you wait and apply after Feb 2011, then what you can do is that get yourself counted in next year’s quota. The advantage is that your H1 clock will be reset (as you would have spent 1 year outside of US), and you can again avail 6 years of H1 (if you do not get counted in quota again, then you will get only 2.5 years of H1). The disadvantage is that because you will be filing in next year’s quota, you will have to wait until Oct 2011 to start working in US on H1.

  35. sunny

    Hello,

    I am on L1 visa and my visa is valid till 2-Dec-2011. Problem is, I need to go to India in Feb 2011 and will be back in March 2011 (for 3 weeks). My L1 has petition of my old client (say X) , but currently I am working for new Client (say Y).

    I have rented a house for a year’s, if I break the lease I will have to pay approx $3500

    Could there be any issue while coming back to US. My Port of Entry will be Chicago.

    Appreciate if someone can answer this case.

    Thanks & Regards
    Sunny

    1. administrator
      Saurabh

      My understanding is that L1 petition (non-blanket) is client specific. In the L1 petition, one needs to specify what employer proprietary knowledge/tools beneficiary knows that s/he will employer for the client. When the client changes, one needs to amend that petition and tell what will be the services provided to the new client. In case of blanket petition, one can work for any of the clients mentioned in the petition as long as job duties remain the same.

      You can continue to rent the house, and pay the rent for those 3 weeks as well. At the PoE, you can be questioned about the petition, client, job duties, salary etc. Because you don’t have an amended petition for the new client, I would strongly recommend to talk to your company’s attorney about it.

  36. chandru

    hi, iam on L2 visa, started to take interviews as a desi consulting company is doing all marketing. I want to know what are the points that i need to take care before taking offers or signing any document…and info reg. changing visa from L2 to H1b.

    1. administrator
      Saurabh

      I am assuming you are talking about documents from legal perspective. You need to have an EAD in order to work on L2. If you want to work on H1, then you need to file H1 (along w/ COS if you plan to start working immediately w/o going out of US for stamping).

  37. Gabriella Skollar

    Hi,
    I am extending my H1B visa. I asked for premium processing. I need to travel back to Hungary because of a family emergency. We sent in my passport in September, that’s my only ID. There are many situations in the U. S. when I need to show my ID, but I don’t have one. They received the application for the premium processing on November 22, I should get a decision notice on December 6. What can I do if they still not decide yet? How can I get back my passport? I need to go home.
    Thanks, Gabi

    1. administrator
      Saurabh

      Why did you send your passport? USCIS doesn’t require original passport for H1 extension? May be they have different rules for Hungarian citizens where they would stamp the new visa along w/ petition extension.

      If you have opted for Premium processing, then there is a his probability that you will receive the judgment within 15 calendar days, unless an RFE is issued, which would delay the process. There is not much you can do besides waiting for the response.

      One option you have is to stop the extension process. USCIS will then return all the documents to your employer including your passport. Once you are in Hungary, you can re-apply for extension, get new H1 stamp and travel to US.

  38. sravanthi

    Hi,
    I got my OPT approved and have job offer. The company is ready to sponsor for the H1B visa. I will file my petition in April. Can I travel to India at this point?

    1. administrator
      Saurabh

      If you working on OPT, you can get it stamped from your college for travel. I think the typical stamp is valid for 6 months of travel.

  39. Dinesh

    Hi, This is Dinesh from India.

    I am looking to file H1B for year 2011. Could someone please provide me list of employers/consultants who are filing the same.

    thanks in advance.

  40. Hitesh Pahuja

    Is H1B quota for 2010 is still available? Till what date we can apply for H1B 2010? Is it possible that my employer can apply for H1b 2010 now and I can fly to US?

  41. Venkat

    Hi All
    Could u send me I94 form (Sample),
    Coming Sunday i am traveling on H1B (last year) Visa , Could u send me the what are documents i should carry while i am traveling

  42. hwayoung

    Hi Kumar,
    my lawyer filed my h1 May 19th then, my OPT was expired in July 1oth while I have been still waiting it gets approved; I didn’t extend my OPT.
    Can I still regally work in my company or I am in trouble?
    Pls let me know.
    Thank you.

    1. administrator
      Kumar

      Hwayoung, I think you should have applied for OPT extension. Do not panic, there is nothing you can do right away, just talk to your attorney and advisor at school they should be able to guide you.

  43. Shaz Khan

    Dear Kumar,

    I have valid US visa stamped on my PP. But I got a gud project in KSA and presently working in KSA and the project is for 2yrs and I dont want to lose US visa and my visa expeires on 27th July 2011. Kindly let me know a chance of extending this visa.
    Note: I didn’t travel even once to US on my H1B.

    thx
    shaz

      1. shaz khan

        Thanks for the reply Mr. Kumar.

        That means I need to find a company, who will extend my H1B petition and then I can go to consulate and extend the visa.

        If my petition is expired then I need to apply for new H1B or I can extend the old one?

        Thanks and Regards
        Shaz Khan

  44. venkat

    Hi
    I am in OPT extension now , my OPT expires on July 15 2011.
    I have a question.
    I am working noq
    so can i file H1b this year (2010 in dec or2011 jan or feb) and get start date for H1b (after july 15 2011)
    is this possible ?

    1. administrator
      Kumar

      No, it does not work that way, you cannot do it. If you file this year for FY 2011 quota, then USCIS counts from the October or from when your change of status starts.

      1. venkat

        Thanks for the Reply,
        I was little confused, to make it clear.
        So If I apply H1 in Dec 2010,i will the start date OCT 1 2010?
        The other thing is
        I want to use whole OPT and then Transfer to H1b,can you please suggest me
        how can i do it.

        Thanks in advance

        1. BHAVESH

          hi , dude
          i have same case as u . my opt extension will expired on this july 12th , so i am also looking way to keep my status safe in USA, If u will find some thing so plz help me out for that .
          here, i drop my cell phone no. its 5512214497, u can reach me any time.,,,

          1. administrator
            Saurabh

            You need to find an employer who is willing to file H-1 for you. If the employer files H-1 along w/ COS and sets Oct 1st as the start date, then you can continue to stay and work legally in US until 1st Oct.

            This is called “cap gap” provision.

  45. Aakash

    Hi Kumar,

    Few days back I got my file# for H1B petition filed on April 14th.
    Tracking the status, I found, Its in INITIAL REVIEW status, since then.
    All my associates have either got RFE or approvals by now.
    What course of action do you suggest me apart from being patient 🙂 .

    Aakash

  46. aakash

    1>When shall we expect the case numbers for petitions for H1b 2011 cap?
    2>After receiving case number for the petition,how long would it take to get H1B approved?

    1. administrator
      Kumar

      Aakash, you get the receipt number (case number as you say) around week to 10 days from the day you file the petition. Decision for approval typically takes 2 to 3 months and it entirely depends on the case and there is no guarantee.

    1. administrator
      Kumar

      I am not really clear on the question. You mean you get H1B approved for FY 2011 quota to work from October, when should you get stamped ?? explain me the question. You may also post in Forum. http://www.redbus2us.com/forum/

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