USCIS published a rule for H1B filings in late December, 2010, Read this article “ H1B Employer to register before filing “. It has moved from “Notice of Public rule Making (NPRM) to next step. It is published in the federal register and will be open for public comments for the next 60 days. i.e. from today i.e., March 3, 2011 to May 2nd, 2011. Check the summary and USCIS references below for full information.
Summary New Proposed H1B rule :
The proposed rule did not change much and in simple terms, the rule is that employers, who intend to hire skilled labor on H1B visa, should register with USCIS electronically via Internet the beneficiary( the person to be hired) info before physically filing the petition. In case, there is a flood of applications like in years 2007 and 2008 where there was lottery, USCIS will do random process electronically and inform the employer if their visa petition info was picked in random selection or lottery. To avoid duplications by same employer, the system will reject applications filed with same info of beneficiary. Pretty logical right ? This is just a proposed rule and it will be published as final rule after comments are reviewed from users. This rule is expected to save $23 million for USCIS over period of 10 years. Also, it will save money for employers as well.
When can proposed rule become a law ?
Well, if everything goes well and the final rule is published by January 2012, this can go into effect from April 1, 2012 for the H1B visa FY 2013 quota.
Update : March 31, 2012
The above proposed rule have not been implemented by USCIS for H1B visa 2013 fiscal year. We do not know the status of the proposed rule as well…Maybe, it will be for H1B visa 2014 fiscal year, who knows?
Update : September , 2018
The above proposed rule is on radar as part of the “Buy American, Hire American Executive Order” and plan to be revived by the Trump Administration as it is part of the Spring 2018 Regulatory Agenda. We do not have specifics on the same as it is not yet implemented. We just need to wait.
References :
- USCIS Press release, March 2nd, 2011 about the New H1B rule
- USICS Fact Sheet about the New H1B rule – 2012, 2013
- Actual Proposed New H1B Rule in Federal Register – Full info
What do you think of the New H1B rule ?
Hi Saurabh,
My prospective employer filed my LCA on 1st June 2012, any idea how long it would normally take to get the LCA approved? Just keeping my fingers crossed considering the H1 cap limit already crossing 55k.
Thanks,
Vasanth
Vasanth,
It can take 7-10 days.
Hi,
I am in the US on a L1B since Oct 2008 and my visa was extended twice until July 2013. However this year I have intend to apply for a H1B this year. I have a couple of questions,
1. I would have to go back to India to dissociate from my host firm, so what kind of visa (COS or Consular Processing) is advisable in my case?
2. If I go with Consular Processing, and my H1B visa is stamped, does that mean my L1B will be cancelled? What if it is rejected during stamping, what happens to my L1B status then?
kryptik,
1. You can file it w/ consular processing. This way you can return to home country, resign from current employer, then go for H-1 visa stamping and finally return to US on H-1
2. They can cancel the L-1 visa stamp when approving the H-1 visa. Once you resign from L-1 employer that L-1 visa is of no use for you, as it is specific to the employer (unless you have plans to work for the L-1 employer again in future on L-1 visa)
Hi Saurabh
Thanks for your reply. However what if my H1 is rejected on interview, will they still cancel my L1B? What I am planning to do is get the H1b stamp in July/Aug, return on L1b, resign immediately, serve most of my notice period from US, go back for exit formalities and then enter on H1b. That way I don’t have to liquidate my assets.
But if they reject my L1 on H1 stamp or even interview, it would be a different story.
Thanks
Kryptik,
Usually they don’t cancel the L-1 visa when rejecting the H-1 visa. But it also depends upon VO’s discretion – and they may cancel L-1 while rejecting the H-1 (possible but not probable).
Hi Sourabh,
I got my H1 VISA stamping 1 month back. Due to inevitable circumstances I need to travel for other business at different location.I know that I need to go for LCA change.Could you please tell me is it going to cause any problem as I am for LCA change within 1 month.If so how can we overcome.
Thanks,
Pradeep
Pradeep,
The employer needs to file a new LCA and then go for H-1 amendment. You don’t need to appear for visa stamping again as long as the previous visa stamp is still valid. The fact that it is changing within 1 month of visa stamping, will not be an issue.
A very small company whose total number of employee is only 6 is willing to file H1-B visa for me. Comapny is located in a state called Idaho, USA. H1B will filed directly through the employer and not through any consultancies.
Can I accept the offer from the very small comapny?
Since the company is very small will my H1-B application be rejected?
To the above query, I like to add few things on my qualification.
I do have a Bachelor degree, Master Degree and five years of experience.
PK,
USCIS may look into the company’s ability to pay you H-1 salary. If they are in consulting business, then USCIS will like to see client/project details. If it is a product company then USCIS will like to see market response, pricing of the product you will be working on. If USCIS is satisfied w/ the above information, they will approve the petition else deny it.
I am having valid H1B visa till AUG 2013 with my old company A, recently I have transferred (Got approved) my H1B visa with my new company B. so if i go to India, do I really need to go for H1B stamping again to reenter US or still my old H1B visa with company A will be valid (with approved H1B petition with company B)?
Sandeep,
As long as your previous visa stamp is valid, you don’t need to go for stamping again. You can return on that visa stamp and new employer’s petition.
Hello Everyone,
I need some serious help. My H1b case was sent back to USCIS and my lawyer replied to RFE and they have reaffirmed and my status on USCIS website is now..
On May 21, 2012, we mailed a notice to you reaffirming the approval of this case and returned the case to the Department of State for visa processing. For more information, please contact them directly.
What are my chances of stamping.
Please let me know your experiences.
Pavan Bajpai,
In most cases, the consulate approves the visa stamp after the petition has been re-affirmed by USCIS. There is not a 100% surety, but chances are better once the petition has been reaffirmed. Do not treat your subsequent interview any lightly that previous one.
Once you have the reaffirmed petition w/ you, email/call VFS and ask them when you can appear again for interview.
Thanks a ton Saurabh. Your help is very much appreciated. We need your comments always… Will update you after i get it..
Hi Saurabh,
Hope all`s well. As per our last conversation, I sent an email to VFS requesting interview for my reaffirmed h1b case on May 25th but they have not replied back yet, i also sent 3 additional emails to follow up and few calls but they keep on saying that they do not have anything.
Any help,
-Pavan
Pavan,
Try calling DOS on their Washington DC number and ask them for suggestion. See if they can provide anything more meaningful.
Hi Saurabh,
Finally i had an interview and the officer asked some of my documents – The RFE written by my lawyer, LCA, and my role – So i submitted my job offer letter which describes everything. and my passport as well.
Do you know how long they take to reply and what are the chances. It has been reaffirmed already.
Thanks for your help.
Pavan Bajpai,
There is no set processing time. As this was a subsequent interview and they kept the passport, I assume it should be done within 3-8 weeks (but it can take longer).
Hi Saurabh
I had submitted my 221g,got a reply in 2 weeks with a new request which says “Advertisement/letter/other showing that the position of xxx at company name was advertised in the usa”
my company says it did not advertise the position. IS IT OK.
the consulate has asked for my passport along with this.
what do i do further.
regards
Ashley,
Legally that is not ok. H-1 visa is meant for positions where the employer is not able to find able eligible US candidates after doing an honest search. However, I haven’t seen many cases where the consulate has issued such a 221g as usually it is understood that companies would do that (in reality, several companies do not do the search).
Your employer/attorney will have to prepare a response showing what kind of search they did to find US candidates and you can then submit the response.
Hi Saurabh
I have one Query, I currently hold a passport which doesnt have surname in it , the surname field is blank . My Employer has filed my H1B Petition .
(1) Please suggest me whether can i get reissue of passport with Surname updated in it , so my old passport would get cancelled , would this create any issues while appearing for PA.
(2) I have my Business Visa(Valid till 2017) stamped in my Old Passport so suggest me whether that visa would still be valid ?
(3) and while appearing for PA am i supposed to take both my passports (the old one and the new one (supposedly if i apply for new one)
Nithya,
1. You can get the new passport. You will have both the new and old passport and can carry both for interview. It should be fine
2. Yes, visas stamped in old passport still remain valid
3. Yes
Hi Saurabh , I have L1 VISA valid upto May 2013 and I am in India now. Mycurrent employer is planning to send me again to US on L1 some time in August 2012 meanwhile I would like to get the approval of H1B with some employer in USA in FY13 cap under PP , it may be done before June but I don’t want to go for H1b VISA stamping in India.
I would like to go to US on L1 in August and later ( after 6 months or so ) wanted to shift to H1B
( Which might be apporved before June 2012). If this works, I think I have to go for H1B stamping only incase of moving out side USA otherwise i can work there till new H1B is valid ( for next 3 years ).
Also, Is it mandatory for new employer of USA to provide the end client letter and project details while filing H1B though I don’t want to go for H1B VISA stamping in India ?
Please let me know if I am wrong and your suggestions if u find any risk in the process I have thought of and also any other best method.
Your kind response is highly appreciated.
Regards,
Rams
Rams,
Yes, if H-1 COS gets approved later, then you can start working on H-1 from COS approval date and don’t need to go for H-1 stamping as long as you are inside US.
Client letter may or may not be required depending upon what kind of job you are being hired for, and what’s your employer size/revenue.
Thanks Saurabh,
Employer size is around 40 , I am not sure about revenues.
My employer is currently looking for final approval from his client and Project letters etc.
I am into IT , does this require client letter for H1B approval ?
Also, many people are telling me that if I go to H1B VISA having 2 valid VISAs in my hand ( I have valid L1 and B1) , there is a risk and likley to be rejected. Does this true ?
What kind of risks would be there if I for new H1B VISA stamping having valid L1 and B1 ?
Rams,
With consulting companies, client letter is often required. It is not true that they would reject H-1 just b/c you have a previously approved L-1. They will primarily look into whether you maintained L-1 status or not. That’s the only thing related to L-1 that I can think of which can impact H-1 stamping.
Thanks Saurabh,
Maintaing L1 status means whether I have utilized properly or not ? I have all pay stubs and W2 ( tax foms ) of my previous visit on L1. Does this enought as supporting documents ?
Am I right ?
Rams,
Yes those documents show that you maintained legal L-1 status.
Thanks a ton for your valuable suggestions and time.
Another issue also. Is there any RULE one shoud land in US within the 6 months of date of expiery of Passport even though he has plans for only 6 weeks? For e.g PP expires in 20 Dec 2012. Can he land in US by end of July and for sure holding return ticket for early Sept 2012.
Sriram,
I don’t think there is any such rule. One needs to have passport valid for at least 6 months when going for visa stamping. However, you can travel to US w/ less than 6 month left on the passport. The PoE officer will not issue an I-94 valid beyond passport expiration date in such a scenario.
Hi Saurabh
Surname in passport is blank. I am filling form DS-160 for stamping. How do i overcome this problem. Could you please advise me as soon as possible.
Pradeep G,
You should mention first name as FNU (first name unknown) and enter your name in the Surname. You can search online for more on FNU.
Saurabh,
Is it going to cause any prob during stamping?
Thanks
Pradeep,
No this shouldn’t cause any issue during stamping.
Hi Saurab,
I too have similar case. In the passport last page, the names of Father / Mother and Spose are mentioned only with Given name and no surname. How can one give NFU against given name when we know it. So i have filled the DS 160 with surname as well given name for all the three although the passport does not reflect the same.
Will it be an issue while attenting visa interview (B1/B2) ?
Sriram,
For US visas it is important to have the last name, and ok to not have the first name. That is why they ask people to enter FNU in first name and given name in last name when the applicant has one of the names missing.
Here is a link from Chennai consulate website.
The way you have filled the forms will not impact the visa processing. I think the consulate will still interpret it as “FNU” and issue the visa w/ the same.
Hello,
I have H1b petition which was was valid from Oct2006 to Oct-2008, however used only for 2 years from Feb2007 to Dec2008. Currently am in US on a L1B visa starting from Aug2011 (through same company that earlier filed H1B). Can I use the previous H1B visa to get employment in US? What shall be the process to get this old H1B visa activated and transferred to the new employe.
I heard from someone, if i didnt use my H1b visa for 3 years it will be cancelled. Is it true
Kavya,
An employer needs to file H-1 petition for you, and submit copy of old approved petition as proof that you have already been counted in the quota. This makes it H-1 transfer or cap-exempt. You can use the old H-1 petition for cap-exempt purpose as long as it was approved within last 6 years.
Dear Saurabh,
If i am not wrong, As the HIB got approved in Oct 2006 i need to get the approval for the same before oct 2012. Is it right
Kavya
Kavya,
Usually it is best to have it filed within 6 years. If you are not able to file it before Oct 2012, you will have to check w/ your attorney if they can still make it work or not.
Hi
My previous employer filed an H1B petition for me and it got approved for 1 year till Dec 2012 . But I could get the H1B visa stamping on my passport as Consulate needed the End client letter which could not be provided at the time Visa interview as contract with the end client got revoked.
After that I travelled to US on Dependent visa after resigning from my employer.They might have cancelled my approved my petition after my resignation.
I wanted to know if I will be H1B cap exempted this year or not if I go for H1B filling again this year from another employer.
Piyush Gupta,
I think you can go ahead w/ cap-exempt petition as long as you have the old receipt number of (even better) have copy of the approved 797.
I was on H1 in the US from Feb-2005 to March-2011 (same Employer). After that I went on H-4 till Aug-2011. I left USA in Aug-2011 and joined my present Employer in India.
Now my present Employer in India is planning to file H1 for me. Can they file it now OR do they have to wait till Aug-2012 to file my H1. The reason I am asking is if they wait till Aug-2012, the H1B cap might get over. Thanks in advance for your replies.
JACOB VARGHESE,
IMO, they can file it now in the new quota. As the start date will be Oct 1, you would have spent 1 year outside of US by that time and your clock will be re-set.
In 2000 and 2001, I recieved 2 H1B approvals which I NEVER USED (one I went for stamping, but never travelled to the US used that stamping). If I find an Employer who is willing to hire me, can I use any of the above 2 H1B visas and claim “Exemption from CAP”. When I checked they have said it is not possible. However one of my friends who was on a L1-B in the US, in 2008 got transferred to a H1B visa (Unused and Expired which he got in 1999). He said he got the same done by appealing for exemption from CAP. In my case can I do the same OR should I have to apply under the 2013 H1B quota.
I was on a H1B visa in the US from Feb-05 to Mar-11 and am doing my 1 year out of the US in India presently. This H1B visa was a seperate one which I got in 2004 and travelled to the US in 2005.
RON THOMAS,
I would suggest going through the cap again. You have spent 6 years in US, and so to get more time on H-1 you need to:
– stay outside of US for at least 1 year
– go through quota again
So do not use the previous H-1 petition and go for a new quota.
Hi Saurabh,
My job interviews are in process. I am likely to hear from the employer by the end of June 2012. Considering the previous year’s pattern, do you think the qouta is gona last till mid of July 2012 as I wont be able to file before that.
Sam,
Around 22K petitions were filed in first few days of April. So chances of it remaining open are 50-50. We will have more clarity in few weeks by looking at the filing trend.
Hi Saurabh,
My employer filed H1B and got the approved I-797 on 24th March. But I did not get the I-94 attached at the bottom with the notice (not even on the second page of notice). However they mentioned in the notice that I-94 should be taken apart and kept for records. In this case, can I ask USCIS to send my I-94 or do I have go out of US and get stamped and come back. FYI, my H1B is a COS from L1B.
Thanks!!
Shravan,
Ask your employer to follow-up w/ USCIS. Did you leave US while it was pending? Is the document 797A or 797B? It is possible this is an error on USCIS side, and you should get it corrected ASAP. If USCIS is taking time, then you can travel out of US as well, although that would require going for H-1 visa stamping.
Hi, I came to visa stamping last june 2011 and went tot admin processing. In oct 2011, I got letter stating my visa is suspended for reason “Petitioner unable to provide qualified job”. My petion is valid till Nov 2012. I am helpless and don’t know what my employer can do before my petition expires. Please suggest.
Just a suggestion, Plan on transferring H1 to another reputed employer and go for stamping with new employer documents before they cancel/revoke your H1b.
Aravind,
You can either change the employers or have another petition filed through same employer. Your petition must have been sent back to USCIS for reconsideration. Do you know where that process is at the moment.
HI,
Good Evening,
I have H1B visa. now my wife is getting H1 B visa(she already having H4). can i go for H4 stamping on my passport with my wife?
Please advise.
Thank you.
Regards,
Rajesh
Just adding a point to above one :
I am still in India. It may take 6 – 9 months for me to fly.
Rajesh,
Yes, you can go for H-4 visa stamping along w/ your wife’s H-1 visa stamping. There is a possibility that they will cancel your H-1 visa stamp at the time of H-4 interview.
Thank you Saurabh..
Any reason for cancellation?
Rajesh,
H-4 is a visa that doesn’t allow one to work, while H-1 is a work visa. So they can cancel the latter when approving the former as you are showing your intent to not work when attending H-4 interview.
Thank you Saurabh for the clarification.
Hi Sourabh
My VISA application has been approved and I need to go for Stamping. In all my marks sheets my name is Pradeep G(Last name not expanded) . But in Passport and in my company docs last name is been expanded as Pradeep Gupta. Is this going to be a problem while stamping.If so How do I overcome .
Pradeep G,
It should be ok. If asked, you can let the VO know that you are the same person. If possible, carry a letter from college stating that they are the same person.
Hi,
i got my H1-B petition reaffirmed? what am i supposed to do next? please guide.
Thanks,
Praveen
Charan,
Contact VFS and ask them when you can come again w/ re-affirmed petition. Once you know the date and time, go to the consulate w/ the petition and all other documents (which you carried for earlier interview).
Thanks a ton for the early reply, but looks like that is not going to workout in my case, as my contract ended with the client which i was working when i went to interview earlier.
Charan,
This may put you in a tough spot. If the officer asks about the documentation then your documents will no longer be valid. If the officer doesn’t ask for it, then it will be ok. Talk to your attorney on what needs to be done in case they ask for client documents.
Hi Saurabh,
I was here on F1 status and my OPT expired on Feb 21st, 2012. Thanks to cap-gap, my employer will file for H1 on April 1st, 2012 under premium processing.
However, do I need a client letter that clarifies a starting date of Oct 1st, 2012? Can I file without a client letter?
Roy,
It would depend upon the employer and the work you would be doing. If its a small consulting company, then having client letter is a highly recommended. However, if its a big consulting employer then client letter is not really mandatory, but still good to have.
I do not know the possiblity to get stamped on my passport if i will plan to return on H-1 or to get H-1 after i came back so advice me on it and i will prefre to start my study again and after sometime planning to transfer from F-1 to H-1.
Hi, My L1B Visa got extended till June 2013 and I’m going to India in June 2012 for vacation get the L1Visa stamped and returning to US in July . I’m planing for H1B, How to proceed with this? If I apply for H1B in premium in April and get the approval before I go to India. what are the implecations. Or If I apply H1B after coming back in July, Can I change the status from L1b to H1b and work without going to India for Stamping? Please Advice.
Raja.
Raja,
What do you want to do? Do you want to work on H-1 from Oct 1 or do you plan to work for L-1 for more months and move to H-1 later in the year or in 2013?
I wanted work on L1 for more months and then move to H1B. Do I need need to hurry on my H1B before I go to India in June? What is the process of L1 to H1 conversion and what are the implecations? I don’t want to go for stamping after coming to US in July..
Raja,
If you want to continue working on L-1 even after Oct 1, then make sure your H-1 is filed w/o COS (change of status). You can travel out of US and return on stamped L-1 visa. Later, when you are ready to move to H-1 either COS from L-1 to H-1 can be filed or you can go for H-1 visa stamping and enter on stamped H-1 visa. You will have to check w/ your employer if they are willing to wait for so long.
Hi Everyone,
I would like to know that right now i am in india since 2 months and i would like to return back to usa but i am been working on H-1 visa since 2 years but i do not have any stamp on my passport and other side i also do have valid F-1 visa stamp on my passport so what is the best way to return back to usa.
Pratik,
What do you want to do after returning to US? If you want to work, then you need to have H-1 visa stamped and approved 797 from the employer you want to work for.
Hello Saurabh,
i am in OPT and my opt will be upto july.i am going to fill H1(premium) in april and it will be effective from october 2012. right now i am working in client site and project will finish in may. is it possible to travel to india after this project in may for 15 days.????
if i get the h1 approval, is there is any problem in rentry in USA in opt (july end date), than in which status i will renter ???
Saurabh,
Few things you need to keep in mind if you plan to travel:
– Make sure your H-1 gets approved prior to your travel date. Else your COS would be abandoned and you will not be eligible for cap-gap
– Return to US prior to OPT expiration date. You can return back as long as your OPT employment is still valid and your F-1 visa stamp has not expired.
You can return on F-1/OPT and then be on cap-gap b/w OPT expiration date and Oct 1, after that you will be on H-1.
i am in OPT and my opt will be upto july.i am going to fill H1(premium) in april and it will be effective from october 2012. right now i am working in client site and project will finish in may. is it possible to travel to india after this project in may for 15 days.????
if i get the h1 approval, is there is any problem in rentry in USA in opt (july end date), than in which status i will renter ?
Madhu,
You need to take care of following things:
– make sure your H-1 gets approved w/ COS before you leave US. File under PP if necessary
– return to US prior to OPT expiration date. In conjunction w/ above, this will allow you to stay and work after OPT expiration date on cap-gap
There should not be any issue when re-entering on OPT (even when H-1 has been approved) as long as you have proof to show that you are maintaining F-1/OPT status. You will have to return on F-1 and then can be on H-1 from Oct 1.
Thanks Saurabh
one more question my project is going to finish in may 15th and i am planning to go abroad after 15th. during re-entry do they need client letter for verification?
Saurabh,
See my response to your other post.
if I am in my STEM OPT with more than 1 month left to expire (July 3rd 2012)and H1-B under premium processing got approved, can I go to visit India for 10 days(May 12th-May 21st 2012) and return back to US without taking any chances?
As H1-B got approved, will the SEVIS get updated now itself? do I need to go for H1 stamping if I visit India in May?
Mohammad,
SEVIS record will be updated w/ an effective date of Oct 1. IMO, you can travel out of US after H-1 gets approved w/ COS, and then return on F-1/OPT and still be on cap-gap until Oct 1 (when your H-1 will kick-in). You can discuss the same w/ your attorney/DSO as well.
Hi,
I have L1B visa valid till May 2012 but I have I 94 Valid till Oct 2013. Can I apply for H1 ?
Chetan,
Yes it can applied.
Hi Saurabh,
Any update on this rule you had mentioned earlier.
“New H1B visa Rule – Advance Registration by Employer ? Maybe April 1, 2012 ?”
Is this going to be implemented in April 2012?
Thanks
Sat,
I haven’t seen any new updates from USCIS on this. So I am not sure if it has been implemented yet.
Thanks Saurabh.
Hi Saurabh,
I am presently in US on H4 Visa. I found an IT consulting company which is willing to file for H1B if I pay $3300 from my pocket.
My concern is, whether am following the right procedure to get a H1B work permit? Does USCIS approve H1B visas for candidates on H4 visas? What is the current trend or chances for H4 to H1B visa conversion ?
I have a Btech (CSE) degree and IT work experience for 2 years in India. I want to assess the risk involved and take a decision accordingly.
Thanks.
Chandana,
USCIS will look into several factors when approving the petition including your profile, adherence to US immigration laws, employer credentials and client/project/employer-employee relationship. They do not deny petition just b/c the person was on H-4.
Also, legally the employer is supposed to pay for H-1 fees and not you. If you are paying it, then you are taking the entire financial risk even if it gets rejected due to reasons not related to you.
Hi Saurabh,
I am currently on my F1-OPT. I am an Industrial Engineer with a MS degree from a US university and I have got a job in my same field with a manufacturing company. It is a small company with around 5 mfg plants in the US and the company has been around for a couple of decades now. They have not filed for H1B for any of their employees in the past and are not e-verified. So they are willing to file H1B immediately. I am concerned that because the company is small and that they have not filed for H1B in the past, that my H1B might get rejected. I am very worried whether I should take up this job with this company or not.
What are my chances of getting my H1B approved with this company? Please suggest.
Thanks a lot
Neethu,
As it is a proper US employer, they have better chances of approval than petitions filed through consulting company. As it is their first filing, it is better to get an attorney involved who can guide them and you through the process. You have done Masters in US which is another positive for you. Also, your degree and job are very much related, which helps. In the end, it is tough to provide any surety as petition filed through Google or MSFT can also end up w/ RFE and/or denial.
Thank you for your prompt reply, Saurabh. The company is applying through an immigration law firm, so I am hoping for the best.
Just a couple other questions
1. In the event of my H1B approval notice coming before the end of my OPT, can I travel to India and choose not to take the visa stamping interview in that trip and still come back to the US? Can I choose to take the interview at a later time?If so, when I return, what will be my visa status then?
2. Is there any advantage of going for the H1b stamping interview before the end of the OPT versus after the end of OPT? I am wondering if in the event of an H1B rejection at the visa stamping interview, is there a possibility of coming back to the US under the OPT?
Thank you very much for all the help.I cant thank you enough for this service you are carrying out.
Neethu,
1. Yes, you can travel out of US as long as your OPT is still valid. Once your OPT expires, you should not travel out of US or else you cannot enter until Oct 1 (H-1 start date). Assuming your OPT is still valid at the time of return, you can come back on F-1/OPT and then be on H-1 from Oct 1.
2. You can come back on OPT as long as it is still valid and it is prior to Oct 1. After Oct 1 you cannot return on OPT as your H-1 would have commenced. I would suggest not going for stamping unless it is really required, which it is not.
You should also consult your attorney about this.
Thank you very much for replying.
Could you please explain how H1b stamping is not really required? How to avoid H1B stamping?( apart from the option of not travelling outside the US at all). I was under the assumption that H1B stamping is a requirement at some point of time, atleast. Could you please guide me here?
Also, can I travel outside the US and return within the OPT end date and H1 commencement date WITHOUT applying for COS?
Please clarify
Neethu,
Let me give you an example:
– H-1 filed on April 1 w/ COS
– OPT expires on Aug 1
– H-1 approved w/ COS on Jun 1
– You leave US b/w Jun 1 and Aug 1
No stamping required, if returning prior to Aug 1. You can return on F-1 OPT and then be on H-1 from Oct 1. Stamping required, if returning after Aug 1 as your OPT would have expired.
In other words, as long as you leave and return to US after H-1 has been approved and OPT is still valid, you can return on OPT. Else you will have to return on stamped H-1 visa.
Does that clarify?
Hi saurabh,
My new employer is applying for H1b premium processing april 2nd. i am on L1 now in usa. i am planning to ask them to apply with COS. My current project in usa is getting over by MAY end tentatively. but for sure i will be going to india by may end or by june.
In case if RFE is raised on my petition and if my approval has not come till may 31st. and if i go to india on june 1st week. what will happen?
1.) will they cancel my h1b processing? since it is applied with COS.
2.) i am going to india for sure to quit my company. do you see any advantage in applying with COS? or should i apply w/o COS. can you tell any disadvantage of applying W/O cos?
3.) in case my petition is approved by april 30 th since its a premium processing. how long will they take to send all the required documents like 797 etc.
i am very much afraid to tell my new employer that i am gng to india for sure, because they are sponsoring my whole visa fees and now if i tell them they may feel that what will happen if the visa is rejected during stamping? i hope u understand my point.
My only worry is if applied with COS and if i leave USA before getting approval what will happen to the processing? do they still process the visa? or they put on hold?
I have 7 + years of IT experience in performance engineering and I am from India.
I am planning to travel USA on B2(Visitor Visa) for a Job Search.
Is it possible to get a Job there in USA within 6 weeks time frame?
If so will the employer who is going to hire me will sponsor me for H1B for 2013 quota?
Please clarify.
Tamileniyan,
That is a misuse of B-2 visa.
Hello, i have been given the h1b visa since 2009. I was supposed to work as an ER nurse in a certain hospital in the States. Until now, I’m still here in my country. My employer explained to me that since retrogression is still going on, they wont be able to deploy me to the US. My visa will expire on August 2012. If I can find a new employer, can I file for the renewal of my h1b visa?
Ledon,
If you find a new employer, they can file cap-exempt H-1 petition for you. Once approved you can travel to US to work for new employer. No new stamping is required as long as the old visa stamp is still valid.
Hi I m here on student visa and my visa is going to over in august 2012 so if i will continue my study in collage, then does it affect to my status? or what do you all suggest me..
Pratik,
As long as you are maintaining valid student status (enrolled + I-94 + I-20), you should be fine irrespective of your expired F-1 visa stamp.
My L1 expires Mid 2013. My organization is ready to process my H1.
When should I start the process?
Sachin,
They can file the petition in April (or until quota gets exhausted) w/ start date of Oct 1 2012.
Hi,
I am applying for H1B in April 2012 , and I don’t have client letter.
Few say it is mandatory to have client letter and few say it is not mandatory.
Please help me on this
Hi,
I have a query, My h1b was filed in the year 2008 and it got approved and the validity was till sept 2011(3 years).Due to some reason I couldnot go for visa stamping. So I never been to US. Now my present company wanted to process the h1v. Is it possible to file the case as a transfer of h1b or they have to file for new h1b. Please suggest.
regards,
KPS
KPS,
They can file H-1 transfer by using the old petition. On it’s basis they can file cap-exempt petition and not be subject to Oct 1 start date.
Thanks Saurabh..
One more query.. how many days does it takes for H1B Transfer.
KPS,
Regular processing – 2-6 months, Premium processing – 15 calendar days. If RFE is issued, then it can take longer.
Hello,
I am currently in US with L1B expiring in June 2013.
My employer is not willing to file H1B for me in 2012. They can file in 2013. If I get the H1 approved, I will be eligible to work from Oct 2013. Is there a way I can work in US after L1 expiry i.e from June 2013 to Oct 2013?
I also heard that H1B now a days have 2 six monthly cycles but I amnot sure of the rule. I am not sure if this is correct news. Please adivse in regards to my queries.
Thnx
xplosion79,
Unless your L-1 extension is filed, you cannot work after your L-1 expires but H-1 hasn’t started yet. I don’t know what you meant by “2 six monthly cycles”.
Hi Saurabh,
Im on L1B visa currently and planning to apply for a H1B (either with the current employer or with a new one). My L1B expires Feb 2013.
Should I be considering a COS or a fresh H1B?
I would be traveling to India in the month of Jun 2012 for 3 weeks for my wedding. My doubt is if I apply for a COS while filing for H1B in the month of Apr 2012 and if the approval comes before or during my travel to India, will my L1 be cancelled automatically?
Can I return to US on L1 and starting Oct 2012 can I be on H1?
If I apply for a non COS H1B visa, do I need to get it stamped before Oct 1 or can I apply for a COS based on the approved petition.
Please suggest me on how to proceed with this. Your help is greatly appreciated.
Regards
Kumar
S Kumar,
You should apply for H-1 w/o COS (as COS would be abandoned once you leave US). You can then return to US on L-1 along w/ your wife on L-2. Once in US, and after your H-1 has been approved you can file L-1/2 to H-1/4 COS, and start working on H-1 from the COS approval date. No H-1 stamping is required until you travel out of US next and want to return to US on H-1.
Hi Sourabh,
My H1 petition is been filled at USCIS in the month of October and the status is still ‘Initial Review’ when can I expect approval for my petition.
Also can you please tell me the rejection ratio as of now.
Thanks in advance.
Pradeep,
I don’t know the rejection ratio. If your petition was filed at VSC, then it may get processed within next few weeks; if it has been filed w/ CSC, then it may get processed anytime now.
Thanks for the reply.
Could you please tell me what is VSC and CSC.
Pradeep,
VSC = Vermont Service Center = petitions starting w/ EAC
CSC = California Service Center = petitions starting w/ WAC
Hi Saurabh,
I have a h1b from FY 2001, Yes 11 years back. I couldn’t go to the US in Feb 2001 as the employer who was a consultant didn’t take me due to recession. Meanwhile I joined another company in India and have travelled to US on L1b from 2005 to 2008 ( close to 3 years). My old h1b stamping was cancelled without prejudice during my first L1b stamping. All in all I had 3 L1b stampings. Now i am in India and have not travelled to US since Apr 2008. Now is that old h1b of any use can it be transferred thou it was never used. But ofcourse its very old 11 years now.
The thought of using the old h1b was in my mind for years but due to lottery during few 2008 & 2009, I dropped the idea. But later approached some attorneys but no one was giving me the right information. So can I use it after 11 years instead of waiting for the cap to open up again in April. The reason i am asking you this is, if an old h1b already counted can be used then the entire process of transfer can be done in 1 to 2 months instead of waiting for 6 months in normal course where there is no visibility.. Appreciate your reply thanks.
Samsan,
Usually USCIS accepts cap-exempt petition only if they have been filed in the last 6 years. You can try w/ your 2001 petition, but I doubt if it would be able to make through. Even if it is accepted, you will be eligible for 6 years of H-1 minus time spent in US on H-1 (which is 0 for you) and on L-1 (which is around 3 years for you).
Why don’t you want to apply a fresh H-1, so that you become eligible for a full 6 year term. The only advantage of using the old H-1 is that it allows you to start working even prior to Oct 2012. However, if you are ready to wait until Oct, then it would be better to go for a new cap-subject H-1 petition.
Hi ,
Can u please tell me whether can i do job when i am having h4 visa. Can u please suggest whether there is any online job r house job to do from US in h4 visa
Revathy,
You cannot work (online, onsite, in-house etc) while you are on H-4 visa.
hi,
am on H4..wud like to apply for H1…pls help me out finding in genuine H1Bsponsers for this yr…
can H4s work as A recruiters in the consultancies??if so,pls mail me list of consultancies in nj?i’ve had a bit exp in india , i wud like to continue in recruiting til i get h1 sponsers….
i ppreciate ur immdiate responce
tanks
Taj,
A person on H-4 cannot work period. However, the person can volunteer in a company, but again that volunteer activity should not be sham. In other words, there should be other volunteers in the company doing similar job and not getting paid. So it’s ok to volunteer for Red Cross, but it’s not ok to volunteer for Google. If you want to volunteer as a recruiter, then that can get tricky as lot of recruiters get paid and so this doesn’t look like volunteerism at face.
As for employers, you can look for them:
– through your network of friends, colleagues etc
– through job sites like dice, monster etc
– through the list of past H-1 filers available at FlcDataCenter website
Hi Saurabh,
I have a unique case. I was already on H1b work permit, when my company applied for a renewal (my first renewal). The immigration came back with a RFE, which is fine, however, I was on vacation. So when I came back from vacation, 9 business days later, I told my lawyer that I would need a couple of days to get all the documents required. In the mean time my HR had confused me with someone else who worked in the company, who had gotten his permanent residency, and sent a note to the lawyer that they can withdraw my H1b renewal application. So in effect my application was withdrawn, putting me out of status.
So, my lawyer is now saying that we will have to reapply for h1 b as a new application, but this will require me to leave the country. I don’t want to leave the country. I am from Pakistan and I fear that if the immigration takes too long (north of two three months) I will lose my employment. My question is do I really have to go outside the country to reapply (not renew) for my H1b visa ?
Thanks,
Shakeeb.
Has your I-94 expired?
If yes, then the only option is to go for stamping. The company would file 797 but w/ option of consular processing. Once approved, you will have to go for stamping. Also, you need to leave US ASAP as your extension has been withdrawn and I-94 has expired.
If it’s still valid, the extension can be filed from within US. You can continue to stay and work on the basis of pending extension.
Hi Saurabh,
I came to US on F1 status and now I am on my OPT period. I am currently working on the financial institution’s Project. My OPT is going to be finished on 8th Feb.,2012. I just missed to file H1 for 1 day. Now to apply for FY2013 H1b , How can I file H1b as I can’t legally work after completing my OPT? What should I do to maintain my status and work legally before applying the H1b ? Please give me right suggestion .
Anup
If eligible, you can file for OPT extension, which would allow you to work even after OPT expires. Otherwise, your employer can file H-1 on April 1, 2012 and you can continue to stay in US on the basis of cap-gap. You cannot work as you would not be in OPT work authorization period at the time H-1 is filed.
Hi saurabh,
I just got a job offer, but realized that I missed the H1B quota (2012) by 5 days.. What are my options? I did have a previous H1B visa which turned invalid as I was laid off on nov.18. I am extremely nervous as to what this means for me and how I can make it work. Your expertise and comments would greatly appreciated. Thank you.
As per law – if u don’t have job within 10 days you should leave the country. The employer has to pay your return ticket.
If you are with consulting firm they may find u different client etc. but if u are with endclient than u are out of luck.
The quota was over on nov 22nd. These days filing and getting H1 Approved is very tough. U have to have client letter, confirmed job, pay stub etc. all correct, even after that u may get 221g and get into “forever wait” loop, meantime the client may find someone else.
Hey Renee,
I just read somewhere that the H1B cap does not generally apply to someone who has already had a H1B visa, irrespective of whether it was transferred to a H4 or not. I’m guessing you could process yours anytime during the year since you already have a H1b.
I would wait to see what Saurabh has to recommend for you. good luck.
Are you currently in US? If yes, then on what visa status? Looks like you held an approved H-1 petition at one point of time. Generally, one can file a cap-exempt petition based on a previously approved H-1 petition.
Yes, My visa was an H1B. I just applied yesterday for an b-2 since i am out of visa (ended my job on Nov.21st) Can i make this work? Also I have a MSc. in advertising from Boston University, and a masters in marketing management from India…
Yes, the new employer can file a cap-exempt H-1 petition for you. This may work out if your employer and job is a credible one. If the new employer has a lawyer, you can consult them as well.
Hi,
I have about 8 years of IT experience in Data Warehouse and worked in US for about 2 years on L1 visa. I’m in India now and looking for H1B sponsors. Please let me know how to find the H1B Sponsors?
Thanks,
Venugopal
Venugopal,
We do not recommend any sponsors. You need to know someone in the company in person.
Hi,
I am a first time H1B user – stamping from the home country.
Received a “221 – other” with the comment ‘Returned to DHS for possible revocation. Your employer should direct further inquiries to DHS’
What does this mean.
VO told me that there is no evidence of my Petitioner having long term engagements with H1B holders and therefore no guarantee that i will be having full time / long term employment with my petitioner.
He also told me that if DHS reaffirms my petition then i can come back for VISA stamping.
What are my chances of getting the VISA stamped. So far DHS hasn’t contacted my employer. ( I received the notice on Feb 17th 2011) Does my employer need to contact DHS as mentioned in the 221g. How long will it take to know the final status.
I am totally depressed. Please please help.
Thanks
You will have to wait to see what USCIS thinks about your petition. Most of the times, this leads to revocation of the petition. There is no SLA for USCIS to respond to it. They might take few weeks to couple of months to adjudicate.
Your employer can follow-up w/ USCIS about the petition, but they won’t have much updates. You can also follow the petition status online to see when USCIS updates it.
If I don’t sugarcoat, then I would say you don’t have much a chance. Tough luck!
mmm. Thanks Saurab. My bad luck. Do you know any H1B sponsors for IT.
Regards
No, I don’t.
Hi I m on a h4 visa right now. back in india i used to work as a lecturer, i have total of 2 years of work experience, i have done my mba in HR . i want to work here in united states as a teacher for that i have to do a certification for teacher training which is a 2 year program along with that i need to clear my toefl. Now my concern is that, looking at the scenario regarding the h1 visa petitions what if i am not able to find an employer for myself in coming 2 years, please suggest me what shall i do? when should i start taking the course or shall i even go for it or not?? please suggest something..that will be of great help to me
You can do a research now to see how many employers are out there that sponsor H-1 for teaching jobs. If you find the number pretty low, then that could be an indicator of how situation would be in coming months. As state governments are cutting their expenses, a lot of teachers are getting laid off. So you need to keep that in mind as well.