Employer Employee Relationship Guidelines for H1B Visa Petition - Neufeld Memo

USCIS Guideline to establish Employer-Employee Relationship for New H1B Petitions, Extensions

In H1B Visa News by KumarUpdated : 126 Comments

USCIS published a memo on Jan 08, 2010 outlining the guidelines that they would look to determining “Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements”, which is also called Neufeld memo.  Below are the detailed guidelines for actually filing the visa petition.

 Employer Employee Relationship Guidelines for New H1B Visa or Initial Petition

USCIS try to stress on the fundamental fact of  employer-employee relationship and H1B sponsor has the right to control. Here is the proof of material as suggested in USCIS Memorandum. These requirements listed below are exact copy of what USICS have listed in memorandum published by USCIS. All H1B visa initial petitions should follow these guidelines.

  1. A complete itinerary of services or engagements that specifies the dates of each sen/ice or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the ser\/ices will be performed for the period of time requested;
  2. Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
  3. Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
  4. Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;
  5. Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are V required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
  6. Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the . petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee- benefits, and the tax treatment of the beneficiary in relation to the petitioner;
  7. A description of the performance review process; and/or
  8. Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.

Employer Employee Relationship Guidelines  for H1B visa  Extension Petitions

USCIS stresses the same fact for the extensions too. “Right to Control” and “employer-employee relationship”. These requirements listed below are exact copy of what USICS have listed in memorandum published by USCIS

  1. Copies of the beneficiary’s pay records (leave and earnings statements, and pay stubs, etc.) for the period of the previously approved H-1 B status;
  2. Copies of the beneficiary’s payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during’ the period of previously approved H-1B status;
  3. Copy of Time Sheets during the period of previously approved H-1 B status;
  4. Copy of prior years’ work schedules;
  5. Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period, (i.e., copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc.). Note: The materials must clearly substantiate the author and date created;
  6. Copy of dated performance review(s); and/or
  7. Copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates.

USCIS clearly says that the H1B visa filing companies have to abide by the stipulations and follow the guidelines and prove the employer-employee relationship and right to control through proper proof of documents. In case, USICS does not find enough documentation, they may issue a RFE (Request for Evidence). If they do not get good proof of documents supporting H1B visa petition, it is their discretion to deny the H1B visa petition.

Hope everyone understands the new rules and choose their employers with discretion.

All the information is publicly available at USCIS website. You should visit USCIS website and read original memorandum for more information. Here is the original document as released byUSCIS H1B Employer-Employee Memorandum

   

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Comments ( 126 )

  1. Siva

    I am working as full time employee to a vendor(employer like ) and has a contract with client till June.Now my employer saying that just because i do not have a billing with that client after June he is unable to file H1-B.Is that true?

  2. Nitish Srivastava

    Hello

    I have a spelling mistake in my CBSE 12th marksheet. My name is Nitish but in my 12th certificate it is Ntiish. Although everywhere else I have correct name be it 10th Marksheet or passport or PAN everywhere.

    My company soon is filing my H1B. Will it create a problem in the same.

  3. Anshuman

    Hi All,

    Please advise if I need to appear in front of embassy for my petition extension.
    As my petition is valid but visa is not stamped and petition is valid till Aug 2014.
    Also, when should I file the extension and usually how many days it takes for extension to be approved.

  4. Sonica

    I do not have relieving letter of my second employer. He is not interested in issuing me due to business fight I had with them. Would it affect my application of H1B. I have already travelled on B1 visa 3 times in past with my current employer. Please advise.

    1. administrator
      Saurabh

      Sonica,
      It may not impact the outcome but can be issue if USCIS wants to verify your experience. Try getting a letter from an ex-colleague or manager if HR is not issuing the letter.

  5. AKG

    Hi Surabh,

    I have applied for H1b from company “A” in oct2011 and i have got visa for one year that is going to expire in Sep2012.
    As there is only 3 month for applying the extension I have got offer a company “B” for H1 Transfer and they said they will apply for the extension as well.

    So i am worried that is it right time to move or this can affect my H1 extension any how or is this the one reason for denials/rejections of visa extension.

    Please suggest me…what should i do….

    1. administrator
      Saurabh

      AKG,
      The term left on old H-1 will not impact the outcome of H-1 transfer. It’s result will primarily depend upon your profile, employer’s credentials, offered position, client/project, employer-employee relationship etc. I assume you are outside of US, so the new employer can file for transfer anytime (even after petition gets expired).

  6. sharad

    Hi Saurabh

    I work as Sr. TSM engineer having 6.5 years of experience. I just came from US on L1-b after 2 years.Finding lot of difficulty in getting H1-b sponsorship. Any tips or advice to follow

    1. administrator
      Saurabh

      Sharad,
      You can try following avenues:
      – your network of family, friends and colleagues
      – US job sites like dice, monster
      – contact past H-1 filers (list available on FlcDataCenter website)

      When going to consulting companies, be very vigilant about the company you decide upon. Not all companies have your best interest in mind.

      1. sharad

        Saurabh

        Thanks a lot for your comments.
        One query. Are there cases when One travels via L1-b and gets transffered on h1-b in states.I am pretty sure these kind of cases exist.Your thoughts on this and what common obstacles can come in this

        1. Saurabh

          Yes, this is possible, and this is easier actually. You just need to have your L1-B Visa and I-94 valid until your H1-B is released/granted.

  7. Vishal Raghuvanshi

    I have a question regarding starting a fresh 6 year cycle on h1b. Can the company apply for my h1b now with starting date coinciding with my one year end date (my 6 years ended on h1b last nov and then I left US ) or they cannot even start the process before Nov?
    Please let me Know.
    Thanks,
    Vishal

    1. Aniket Shende

      If your 6 years are completed, then i think you need to apply in the CAP, and in the quota. Please let me know if i am incorrect.

  8. Puneet Vasudeva

    My brother has H1B Visa since last year . I wanted to Confirm in which circumstances, we can get a single dependent parent on residence visa in US so that we can come along with Family.

  9. Usman Mohammed

    HI Saurabh,

    This is Usman , I am having Valid H4 Visa till 0ct18 2012 . My wife is in United states with H1 visa. I am Planning to Go there and Convert H4 to H1 Visa as i got Client letter from my Wife manager.

    I have some queries regarding the process.

    1) I have done my Bsc Computer Science with 84 % from madras university in 2007 and Currently i am having 4years and 5 months of IT Experience. Is i am elgible for applying H1.?
    2) I have 2 years gap between my +2(intermediate) and degree (Bsc Computer science). will this gap effect any where in the H1 Process?
    3) In + 2 and Degree certificates there is a speeling mistake in my name as below.

    Passport: Usman Mohammed
    10th Mark sheet: Usman Mohammed.
    12th Mark sheet: Ushman Mohammad.
    Degress Mark Sheet:Ushman Mohammad.

    But in my experience letters i have the name as it is in Passports and on H4 Visa also i have the same.

    Will this Speeling mistake will create any problem while raising the H1 for me.?

    Thanks,
    Usman

    1. administrator
      Saurabh

      Usman,
      1. You have a 3 years degree. So you will have to first get your degrees and marksheets evaluated by an education equivalency agency in US. They might come up w/ result stating that your education is at par w/ 3 years of US college degree. This implies, you will need to have at least 3 years of relevant work experience in order to qualify for H-1. So you may qualify, if you have the paperwork to show the same.
      2. It should not be an issue
      3. It should not be an issue. You can get a certificate from the college stating that you are the same person despite of the spelling difference.

      1. Usman Mohammed

        Thanks Saurabh for your swift response!

        Currently i am working one MNC company in india .I got client letter from the X Company from US and one of the US Consultancy is going to file my H1 now . they said to me like visa interview in india will be held during septmeber or october for this year.

        1)what are the precautions or documents i have to take before going to attend the interview?
        2) i have applied for Gazet in india for name change , is that supporting document is enough as a proof for name change?
        3) What questions i can ask to the consultancy before filing the H1 for me?

        Looking forward for your reply Thank you

        Regards,
        Usman

        1. administrator
          Saurabh

          Usman,
          1. Your documents that would be needed during processing include degrees, marksheets, resume, experience letters, certifications (if any).
          2. Yes should be enough
          3. Is the employer a consulting company? If yes, then ask them if they have direct client, if not then how many middle vendors will there be. Can they provide client letter to support your application? How do they address employer-employee relationship? Will they ask you to bear H-1 filing cost (not legal)? Will they pay you on bench? Other than this, regular questions like salary, benefits etc.

          1. sara

            Thanks Saurabh!

            I have a quick question. Is client letter is mandatory for applying H1 visa. as i have 41/2 years of experience in Indian reputed IT Companies (CTS, HCL and Verizon).

            Regards,
            Usman

          2. administrator
            Saurabh

            Sara,
            It may be required or not based on the employer size and profile (it’s not related to your experience). If your H-1 employer is a small to medium size consulting company, then client letter is as good as mandatory.

          3. usman

            Thank saurabh for your reply!

            I have a question regarding 221 g processing . My H4 visa went for Admin processing when i applied. after 1 month it gor approved . Now i am applying H1B visa for this year. Is there any chances of going for Admin Processing Again for H1B visa?

          4. administrator
            Saurabh

            Usman,
            Yes, it can always go to Admin processing. There is never a 100% surety.

          5. usman

            Thanks For the reply!

            My Attorney has Submitted my Petition to USiCS on MAy23rd 2012 and Now its in Intial review.

            I have below questions

            1) how long it will take for my petition Approval?
            2)As i heard from my friends, As on May25th 48,400 Regular H1B Cap has been filled, as my petition is filled on may 23rd 2012 so my petition is also one among in this 48,400 filled petition. Please confirm.
            3) The number 48,400 is refers to Approved petition or Submitted Petition? please confirm

          6. administrator
            Saurabh

            Usman,
            1. 2-6 months (regular processing). If RFE is issued, then it can take longer
            2. Yes
            3. It includes submitted petitions which have either been approved or still pending. It doesn’t include any submitted petition which was later denied by USCIS.

  10. Krishna

    Hi,

    I have applied for my H1B extension. I 94 also expired. Currently I am working with my employer in onsite.
    My husband also work and has H1 valid for 1 more year.

    If my H1B extension is denied what are the possibilities for me to stay in US.

    1)Can I apply for H4 from here and continue staying here?

    Because I have a project here, so my employer will explore other oppurtunities to get a work visa for me.
    Till that time is it possible for me to stay here on H4.
    Please assist.

    1. administrator
      Saurabh

      Krishna,
      You cannot do that from within the US as your I-94 has expired. In case H-1 extension is denied, you will have to leave US and then enter on stamped H-4 visa. Once you return on H-4, you can decide to file COS to H-1 at a later date and then be on H-1.

  11. Karan Singh

    Hi,

    My H1B expired in Nov 2011 and i got an h1B extension approval for 3 years in Jan 2012. I have an offer from company B who is willing to transfer my H1Bvisa and file under premium processing. I’m expecting to join company B by April end but need to travel to India in June 2012. My questions are as under:
    1. Since i’m here on h1b extension from company A and getting it transfered to company B, i’m sure I will have to get my visa stamped for company B in India. I hope i’m not doing anything illegal.

    2. Since i’m joining Company B in May and going for stamping in July will there be any issue in stamping because of the short time duration. Company B (8000 emp strength), an american company, is offering me a Full Time employee position.

    1. administrator
      Saurabh

      Karan Singh,
      1. If you are working for B at that point, then you need to get it stamped through B. This is assuming your current visa stamp would have expired by then.
      2. No, it won’t be an issue as long as you qualify for the position and have been maintaining legal status in US.

  12. Raghu

    Hi,

    My H1B petition is valid till Sep 2012. I had gone for stamping in May 2011 but till date no decision has been taken in my case. Can the embassy stamp my visa even after Sep 2012?

    1. administrator
      Saurabh

      Raghu,
      Probably not. If it goes beyond Sep 2012, they would ask you to submit an extended petition or return the document stating that its no longer a valid case.

  13. Manisha

    Hi ,

    My husband is in US on H1 visa. He has got an RFE of not maintaining Visa Status properly and is to reply to that in May . I am planing to go on one month vacation to US before June. Since his H1 has an RFE I am planning to go on B2 with my Husband as Sponsor . But will it be rejected saying that why didn’t I apply for a dependant visa since My spouse is alreasdy there and why am I going for a B2. Can you suggest some solution.

    Thax ,
    Manisha

    1. administrator
      Saurabh

      Manisha,
      B-1 can be an issue as its a non-immigration visa while H-1 is a dual intent visa. So officer can reject B-1 stamping stating that you are a potential immigrant as husband is on H-1. In addition, B-1 gives you only temporary stay (max 6 months) and this may not fit well w/ his H-1 stay which can be more than 6 months.

      Can his application be upgraded to premium processing so that it gets adjudicated early and you can then go for H-4 stamping w/ his approved H-1 petition. Also, what’s his current visa status in US? Is his extension under RFE?

  14. Mansa

    Hi Saurabh,
    Am on L2 Visa and i received my EAD very recently. I got placed in Infosys here and i was told that they could not sponser H1 for me. But my L2 Visa is valid till next feb 2013. So i would like to apply for H1-B Visa this year so that i can continue my work without any breaks.

    1) Can i start coordinating with consultancies so that i can apply for H1B visa for 2013 Quota .
    2) Any tips so that i get my H1-B visa this year.

    Regards
    Mansa.

    1. administrator
      Saurabh

      Mansa,
      1. Yes, you can contact consulting companies to file H-1 for you
      2. When going through consulting companies, be very sure about the employer as they are subject to close scrutiny both by USCIS and US consulates.

      1. Mansa

        Hi Saurabh,

        Thank You for the Information. Could you please tell me if you know any consulting company that process H1for me.
        My email ID manasas16 at gmail dot com

        Thank You in Advance,
        Manasa

  15. Isha Qureshi

    Hi Saurabh,

    I am in US with H4 since 6 months, our visa expires in June and we have applied for a extension (premium processing) .Can I apply for H1 now and what complications may occur since my H4 is in processing and planning to go for H1 application in April 2012.

    To convert from H4 to H1,how different is this H4 to H1 conversion compared to new H1,i mean chances of getting approved.

    Thanks in advance.

    1. administrator
      Saurabh

      Isha Qureshi,
      You can file for H-1 while H-4 extension is in process. However, they can raise RFE asking for H-4 validity b/w June and Oct 1 (earliest H-1 start date). To avoid this, you should file H-4 extension under premium processing and then apply for H-1.

      Chances of approval are same whether you file H-4 to H-1 in US or just H-1 from outside of US.

  16. Srikanth

    Hi Saurabh,

    I am in US with H1 since 3 months,my wife got her H4 in last month.She is planning to come here in May.Can she apply for H1 in India & then travel to US on H4 & if H1 get approved can she start working in US without going back to India?

    One more possibility is to convert from H4 to H1,how different is this H4 to H1 conversion compared to new H1,i mean chances of getting approved.

    Thanks in advance.

    1. administrator
      Saurabh

      Srikanth,
      To do this, she will have to file COS from H-4 to H-1 once her H-1 petition gets approved and she is already in US.

      Both have same probability of succeeding.

  17. MOHD SAMEER

    Hi SAURABH,
    My name is SAMEER, And i recently done with my B.tech with 60% in CSIT stream in 2011. I have query that can i apply my H1B visa now because i have sponsors for my H1B visa. Please reply me asap

    Looking forward for your reply Thank you

    Contact – +91-9885646725

    1. administrator
      Saurabh

      Mohd Sameer,
      Yes, you can. However, you and employer will have to show how you qualify for the offered position w/ zero experience and a B.Tech degree.

      1. MOHD SAMEER

        Hello SAURABH SIR,

        Thanks for the information. And is it mandatory that i should get experience letters also to show in immigration office? Thank you

        1. administrator
          Saurabh

          Mohd Sameer,
          It is good to have those experience letters as it would establish documentary proof that you qualify for the offered position based on your education and experience.

          1. MOHD SAMEER

            Hello SAURABH,

            Thanks for the information. And please let me know one of my cousin is in USA in Business visa and he got H1B sponsorship also so, again he need to come to India for stamping because he applied for change of status so, he should come for stamping or no need? Looking forward for your reply Thank you

          2. administrator
            Saurabh

            Mohd Sameer,
            If his COS gets approved then there is no need to immediately travel to India for stamping. However, if COS is denied, then stamping is required before starting to work on H-1.

          3. nisha

            Hi Saurabh,

            Do you mean that if one’s COS to H1B is denied once, if they try again next time for new H1B ; will we have to goto home country for stamping before starting work here???

          4. administrator
            Saurabh

            Nisha,
            If COS is denied, then the person’s status remain the prior status. To move to H-1, they will have to get the H-1 visa stamped from their home country and enter US on that visa and work on H-1. If they re-apply for COS and it gets approved, then no need to immediately go for stamping.

  18. Vidhya

    Hi Saurabh ,
    My husband had gone to US in june 2011 on deputation. He transfered his H1 ro a consuling company in August . The previous employer revoked his visa on Sep 18.
    But he had applied through a new company in August. It got an RFE . somting with the Employer . They gave an explanation but it was denied . He chnegd his employer and filed H1 again. But this time alos got an RFE that H1 status was not porperly maintained and he changed employer when the visa was denied with the first consulting company.
    The RFE reply date in May 18 . is there any way to solve it out ?

    Thanks and regards ,
    Vidhya

    1. administrator
      Saurabh

      Vidhya,
      It can be tricky. He needs to show that he has been maintaining legal status in US. How long is the gap b/w his denial of consulting company H-1 and his filing for next H-1 transfer? Does the new employer have an attorney working on the case?

        1. administrator
          Saurabh

          Vidya,
          Probably those 30 days are the issue as he didn’t maintain status during that period. I don’t know what would be a plausible explanation. There is also a possibility that USCIS will approve the petition w/ consular processing asking you to go for H-1 visa stamping and then enter to work for the employer.

  19. Yoosaf

    Hi Sourabh,

    I have had a case of L1 rejection back in 2008 because they were not satisfied with the reply for RFE. The RFE was to prove my specialty and ‘why me’ .

    I left that company in 2010 and now my current employer is filing for my H1B. Will my history of L1 rejection affect my H1B in anyway?

    1. administrator
      Saurabh

      Yoosaf,
      I don’t think that rejection will impact your current H-1 processing. You need to remain truthful in all the documents and information provided to the best of your knowledge.

      1. Yoosaf

        Thanks Saurabh,

        Yes I will be very careful of what details I share. You reduced a lot of stress on me.

        Great work Saurabh for people like us.

        Really appreciate it.

  20. sagar

    Hi:
    I got my petition for H1B visa extension approved for next 3 years and now I am going for actual visa stamping @ consulate in Mumbai.

    I am a little confused whether I need to carry any documents with me with respect to new guidelines for employee-employer relationship establishment now or it is only for the extension petition approval. If I need to carry any documents, what they will be.
    Right now I am planning to take all the docs that my attorney provided(I797, I129 etc) along with my bank statements, salary slips and W2 forms for last year.

    Thank you in advance.
    ~
    Sagar.

    1. administrator
      Saurabh

      Sagar,
      If you are working for a consulting company, then you need to carry documents explaining how your employer controls your day to day activities. You may be asked questions related to the same and you need to be prepared for relevant questions. If you do not work for a consulting company and are a direct employee, then EE doesn’t really impact you.

      1. sagar

        Thanks Saurabh!

        I work on the client side. So from your response, it seems that I will need to carry the relevant documents!

        Thank you for your help.
        ~
        Sagar.

  21. Ram

    Hi Saurabh,
    I have questions as below –
    1. I am on H1B cme in Nov2010 to X location. My petition /I129 was for Y location . But my employer filed new LCA for X location and also provided Transfer Memodium letter which say there is no change in job responsibilities instead of location and according to some rule (past) there is no need of filing new petiton or amendment for this.
    My que here is Do in need to worry if in case Site Verification happened from USCIS ?
    Or should I ask my company to ask amendment so that my I129 will be for correct X location?

    Please suggest?

    Thnks
    Ram

    1. administrator
      Saurabh

      Ram,
      Off late USCIS and consulate have started raising questions when there is a discrepancy b/w LCA and I-129. To be on a safer side, the employer should file I-129 amendment even if the duties are same and just the location has changed.

    1. administrator
      Saurabh

      Ryan,
      That’s misuse of B-1 visa. This visa should be used only for the purpose it was issued for, which is either for tourism or to attend business meetings/trainings etc.

  22. Kapil Sharma

    Hi Saurabh,
    My H1B visa got Approved and i would be travelling along with my Wife as her H4 is also approved. She is working in TCS and would like like to apply for H1-B Visa so that she can work over there.

    1) Can we start coordinating with consultancies so that i can apply for her H1B visa for April 2012 Quota . Is it like we need to wait for some months so she can apply her H1-B Visa.

    2) Any tips so that her H1-B visa petition approval turns out to be a cakewalk.

    Regards

    Kapil Sharma

    1. administrator
      Saurabh

      Kapil Sharma,
      1. Yes, you can start the discussion. There is no wait time, but it’s recommended to file it after staying in US for at least 30 days on H-4.
      2. ‘Cakewalk’ petitions are only possible when filing through employers like Google, Microsoft etc. When applying through consulting companies (common destination for applicants on H-4) is usually subject to close scrutiny. So its better to carefully check employer credentials and look at the offered job/project/client before deciding on an employer.

  23. umesh

    Hi Saurabh,

    i have a question,

    1. im working for a IT company whose client is MTN IRANCELL(IRAN) my manager asked me to travel to Iran on Business visa for 2 months, worked and came back to INDIA. again they asked me to travel to IRAN on ON-ARRIVAL visa for 15days where in iran the embassy guys has not issued me VISA so i was deported back to india, again they sent me on on-arrival visa and this time they have issued me the visa and i was there for one month and came back to India. again i travelled to iran on on-arrival visa and they have not issued me the visa in iran again. so i was deported to india twice..

    know im planning to apply for H1B visa. will this cause me a problem in issuing the H1 visa. please help me Saurabh…

    1. administrator
      Saurabh

      I don’t think deportation will be an issue but based on your trips to Iran, you may be put under additional background check.

  24. sowmi

    I started working for Cognizant Technologies from 28Nov2011 after receiving the receipt number.CTS filed the H1 b transfer case on 17 Nov 2011 in premium by specifying the client details whose location is in TX Dallas, On 30 Nov 2011 and we got a RFE asking to prove client relationships. But due to various they lost the project and they don’t have any documents to prove this.

    On 17th Jan 2012, Igot new project in CA; right now I have sow, manager’s letter and LCA of client in CA. Next week my immigration team is trying to respond with these documents where the client is different from 1-129.

    What is the chance of approval.

    1. administrator
      Saurabh

      I have seen similar cases, but unfortunately no one came back to report whether their case got approved or not. I think it should get approved based on the new documents that you are submitting, but there is always a chance.

        1. sowmi

          Hi Sourabh,
          In my scenario I was on bench from 17 Nov 2011 to 17 Jan 2012,47 Days.
          But my company paid the salary as per offer letter.

          Does this mean I am out of staus for 47 days?

          1. administrator
            Saurabh

            Sowmi,
            As long as you are getting paid you are fine. You are in legal status on the basis of getting paid and not on the basis of being a billable asset.

            It is pretty difficult to find employers that pay you while you are on bench. Your employer seems to be a member of that exclusive club.

            Good luck!

      1. sowmi

        Hi Sourabh,
        My H1 B case got denied and reason for denial moveing of project/client during decesion pending state.I am un happy 🙁

        when I spoke with my immigration re-appling cases has high risk..is that true.

        1. administrator
          Saurabh

          Sowmi,
          Sorry to hear about your denial. There are couple of options:
          1. File appeal or MTR for the case, which can take few to several months to process. Also there is no surety that petition would be re-instated in this case.
          2. File another H-1 petition w/ new project/client details. Your employer can file the LCA and I-129 w/ new information and submit all the information asked in previous RFE along w/ the initial filing. They can file it w/ PP so that it gets processed within 15 calendar days. This has lesser chances of denial as compared to (1)

          BTW, you also need to look into your current status. How are you maintaining H-1 status now? I mean which employer are you working for until you decide further course of action?

          1. sowmi

            Hi Sourabh,

            I’m leaving the country on 24th of Feb i,e 9 days from the rejection.
            I got a new employer who is ready for filing new h1 b any how I asked him to apply when I am in india.
            In my case what are all the documents i need to submit.

            1. I have payslip from Company A upto Dec 2011
            2.I -797 from Company A
            3.I have payslips from Company B upto 15Feb2012.

            May I know what are all the documents I need to submit while I apply H1 from India.

            I really appreciate for your help !!

          2. administrator
            Saurabh

            Sowmi,
            Those documents should be fine. In addition, you need to have W2 for 2011, copy of B’s transfer notice (797C), and if possible copy of denial notice. You would also need rest of the regular documents like resume, experience letters, degrees, marksheets etc.

  25. S. Kumar

    Hi Saurabh,

    I have got my H1B visa stamped recently, but I don’t want to go to US right now. In fact, I am planning to leave my current employer and will try to find employment directly with some US company.
    1. Will it be very difficult to get my H1B transferred to my new employer, as I haven’t used the Visa even once, i.e., I changed my employer after getting my H1B visa but before flying to US.
    2. How easy or difficult it is to find a job in US with my H1B visa, sitting here in India.

    Thanks for the good job you are doing. Keep it up bro!

    1. administrator
      Saurabh

      1. It should not be an issue, as long as the new employer is credible and has a valid job for you
      2. Pretty difficult to find a good reliable employer in US while being in India

  26. sridhar

    Hi,
    I started working of company B after filing H1b on PP and got RFE. in I129 the Itenary was mentioned for client in Atlanta,GA,But I changed the client working for Client in NY.immigration team responding with all documents from NY Client.what is chance of approval.

    1. administrator
      Saurabh

      If the LCA was certified again for NY, then it might get approved. If the LCA is still certified for GA, then it can be an issue. It will also depend upon how satisfied they are w/ all the submitted documents.

  27. Ram

    Hi Saurabh,
    Thanks a lot for the good work you are doing.

    1. I came on H1B in Nov2010, that time my petition was for different client/location. My Company applied for new LCA and I landed to new client and new location iin US. Now question is, my visa is till Sep2013, is there any chance USCIS asks in between saying LCA and I129 mismatches. Is my worry is right, Or m Good to live till Sep2013. ?
    2. And further after sep2013, Visa extension USCIS might ask for current client/and all details right?

    Thanks

    1. administrator
      Saurabh

      1. Sometimes they do random site visits and check for immigration documents and details. If that doesn’t happen, then there is no other scenario where they will ask about the I-129 mismatch unless a petition is filed w/ them (like H-1 extension or H-1 transfer).
      2. Yes, they would ask for details at the time of extension and stamping.

  28. Sri

    I have a couple of questions
    1. I work for a IT company which has development office in India and Operations in the US and I am on an onsite offshore engagement which is permanent. My H1B got approved for only year and is valid till Sept 2012. The client letter has SOW for only 1 year but this is a permanent engagement which can extend for an unlimited period of time and the client only renews contracts every year. Is it advisable to travel to India now or in a couple of months since i have 9 more months of approval left. In-Case i get stuck in India after my stamping for a few months , will my employer be able to apply for extension even when i am not inside the US?

    2. Will I be needed to get stamping every time I go to India if I get my H1B is renewed on yearly basis?

    1. administrator
      Saurabh

      1. These days, unless it is really important to travel outside US, one should avoid any trips if they involve H-1 visa stamping. If you are stuck outside US, then also your employer can file for extension.
      2. If your petition gets renewed for 1 year only, then yes you will have to go through this nuisance. When filing for extension, employer can try to explain the set-up to USCIS and request to approve it for a longer duration.

  29. srikanth

    Hello Saurabh,

    I got my H1 visa stamping done, my wife will be coming to US on H4 in June 2012,She is working my organization only. The plan is, after her arrival to US my employer is ready to do H4 to H1 conversion. after her arrival on H4 when can we start filing H4 to H1 conversion,any minimum period of stay ? Does she need to come India for this conversion ?

    1. administrator
      Saurabh

      It is usually recommended to wait for at least 90 days before filing for H-1 w/ COS. However, it should be ok even if you decide not to follow that (as both H-1 and H-4 are dual intent visas). If her H-1 is filed and approved w/ COS (change of status) then she doesn’t need to travel to India to move to H-1 status. Her status would become H-1 from the COS approval date, and she will have to start working and getting paid from that date.

  30. Varun

    Hi Saurabh,
    I got my H1B petition approved and is going for visa stamping next week. however the client/ customer for which my petition was filed has to be changed as right now there is no requirement for the same customer & location. SO please guide should i first get my visa stamped with current petition or should i first file for amendment (with changed customer) and then go for stamping?

    1. administrator
      Saurabh

      You would be asked to submit client/project information when going for stamping. So you should first get new LCA, I-129 and then go for H-1 stamping.

      1. Dharmveer

        Saurabh, you are doing a wonderful job helping others selflessly. We need more people like that out there!! Cheers!

        My case is similar to Varun’s. My H1 petition was filed in Apr 2011 and got approved in June 2011 but visa interview is yet to happen. I am employed with XYZ. My original LCA was for client A, but now I have to go work for client B in a different location. However, my employer company still remains the same, XYZ.
        My company says it is sufficient to get a new LCA for client B and go for visa interview. They say there is no need to amend I-129. Is this correct? I did some googling and looks like some people say it should be amended and others say no need:
        http://www.imminfo.com/News/Newsletter/2011-6-30/part-2-h1b-amendments.html
        http://www.murthy.com/amh1b.html
        http://www.immihelp.com/visas/h1b/h1b-petition-amendment.html

        Let me know your thoughts.
        Thanks a lot.

        1. administrator
          Saurabh

          I have seen few recent occurrences where 221g was issued b/c LCA and I-129 didn’t match. Off late, consulates want I-129 to be amended when LCA is modified.

          If the employer doesn’t want to file I-129, then you can try to go w/ new LCA and current I-129. Also make arrangements w/ employer to have them file I-129 immediately in case consulate issues 221g for the mismatch. If the consulate officer doesn’t issue any query, then you are all good, else your employer will have to file the I-129 amendment and you will have to submit those documents as part of 221g response.

          1. Dharmveer

            Thanks for your reply, Saurabh.

            My H1B visa interview went well today and they have kept the passport for visa pasting.

            He did not ask anything about the mismatch. He did not even ask for the new LCA. I think it was the clean history of my previous visits on B1 visa that helped me here.

            Below is the list of questions I was asked at the consulate:
            1. Have you been to US before
            2. What kind of visa it was
            3. How long did u stay in US
            4. Show me your old passports
            5. What is the name of the client that you will work for
            6. What is the current project about, what is your role in it
            7. Who is your onsite manager, what is his designation. Is he a full time employee
            8. How many people are there at client site from your company working on this project
            9. How long have you been working on this project
            10. How long have you been in your current company, what is your current designation
            11. How much total experience do you have
            12. Who is your employer in US

          2. Dharmveer

            Thanks Saurabh.

            I am an employee of an Indian MNC, ABC India Ltd. I came to US on H1B one month ago. I joined the payroll of ABC America Inc and I am getting paid as per the LCA. I got my SSN generated only recently and hence have not received any pay stubs yet but they are in processing and I will receive them around 15th Apr 2012.

            Now I need to go back to India due to a medical emergency at home. I will go back to India and join ABC India Ltd again. I will no longer be on payroll of ABC America Inc and I will stop getting their payslips.

            Will my H1B petition and visa remain valid if I have to come back to US and join ABC America Inc again at the same LCA location and same client/job?
            Or, going back to India will render my H1 status invalid?

            Thanks for your time.

          3. administrator
            Saurabh

            Dharmveer,
            You can return to US to join the company and work at same location/client. No action is required. However, make sure to carry proof that you are still employed w/ ABC America and are getting paid as per the LCA (for your entry in US).

  31. Madhur

    Hi Saurab,

    Thanks for this great article.

    My company currently in the process of filing my H1 and since its a consulting firm, it is actually working on getting their contract documents together.

    My case, as I thought, is a little different as I am a full time employe of this American consulting firm. It is not a job shop as the desi consulting firms are so is there a different way of proving that we (my firm) operate differently?

    An example of how my firm is different: I get paid even when I am on bench!! Similar to how a deloitte, infosys etc operate. But we have presence only in the US.

    1. administrator
      Saurabh

      Not all consulting companies are bad and there are consulting companies that are properly managed. As long as your employer is credible, it should be fine.

      Good luck!

  32. Shikha

    Hi,

    My visa is getting expired in Jan 2012 and on paper, my current project is till Mar 2012 although it is sure to get extended beyond that.

    If I apply for visa extension, how long can I expect the petition to be approved? Only till March or hopefully for three years?

    1. administrator
      Saurabh

      Extension may take 2-6 months to approve. You always have the option to upgrade it to premium processing in which case USCIS would adjudicate it within 15 calendar days. However, if USCIS issue RFE, then that would delay the process.

      Whether the petition gets approved for 1 year or 3 years would depend upon the job/project information submitted by the employer when applying for extension.

      1. Shikha

        Thanks for the reply, Saurabh!

        Sorry if there was a confusion when I asked “how long…”

        The client letter says the project will go only till Mar 2012 only. It is expected to go beyond that, but that won’t be mentioned in the client letter until the service agreement is formally signed. 🙁

        In this case, will I get extension only for two months?

        1. administrator
          Saurabh

          Yes, extension term is based on client contract. So if you want an extension for longer duration, then you will have to submit the extended contract. Your employer can try to reason and submit a letter stating that there is a strong possibility of contract getting extended, but it would be up to USCIS officer whether to accept it or not.

  33. Srikanth

    Hello Saurabh,

    I am srikanth, applying for h1 visa soon.
    I want to take my fiancee with me, we will apply h4 or h1 for her and the sponsor is my company.

    Now my questions are
    1. She completed B.tech which is of 3 years and is equivalent to normal b.tech degree(i.e. Diploma 3 years + B.tech 3 years) and has an IT experience of 2 years,
    So, is she eligible to H4 to H1 conversion, So that she can also work.

    1. administrator
      Saurabh

      Once she is in US, an employer can file H-1 for her if:
      – She has 16 years of education including 4 years of college degree which is equivalent to US’s Bachelors. You (or the employer) will have to send her degrees to an education evaluation agency in US to see if she has the necessary education. If not, then at least 3 years of relevant experience for each missing year of education.
      – She is working in an area that is specialized enough to be sponsored for H-1.

      However, I must add that finding credible employers is a tough job and USCIS scrutinizes those petition closely that are filed through consulting companies.

  34. OJ

    I received my H1B with a start date of Oct 15 2011 to work in the US office (subsidiary) of my current company. I work and live outside the US now.
    Is it okay to enter and start work in the US later than Oct 15, 2011, say, on Feb 1 2012?

    1. administrator
      Saurabh

      Yes, it is. You may be questioned about it at PoE. At that point you can let them know why you delayed your H-1 employment (personal, employer reasons etc). Also, carry a more recent letter from the employer stating their intent to still call you to US on H-1.

      1. OJ

        When should an H-1-B visa be extended?
        Someone said that the 6 year limt starts from the date of entry into the US (and not the date on the visa).

        Then when do I submit the extension appplication? Right before 3 years after the original date or 3 years after my actual date of entry?

        (My visa is valid from Oct 1 2011 till September 31 2014. If I enter the US in February 2012, when does the initial 3 year period end?)

        Thank you again.

        1. administrator
          Saurabh

          H-1 can be extended up to 6 months prior to it’s expiration date. The 6 year limit counts only the time spent within US and doesn’t include anytime spent outside (either waiting for employment to start or on vacation etc).

          If you enter in Feb 2012, current H-1 petition would still expire in Sep 2014. Extension needs to be filed when it is about to expire. In all your employer can keep on filing until you have spent 6 years in US on H-1. Subsequent extensions are possible if labor has been approved (+ some more scenarios).

          1. OJ

            Thank you very much!
            And I am sorry for my endless questions.
            As explained above, my h-1-b starts on October 1, 2011 but my employer wants me to start working in the US in February 2012 and I am currently outside the US.
            I may need to make a short trip to the US in December 2011 (for a conference) only for one week or two .
            Then, is it possible to enter the US based on the visa waiver program or a tourist visa so that the H-1-B visa does not start (i.e. I don’t get paid by a US employer and I don’t pay for taxes until February 2012 when I actually start working in the US) ??? Or should I stay outside the US if I don’t want my h-1-b visa to kick in? If I enter the US, then does my H-1-B go into effect (and my employer is required to pay me within 30 days and I need to continue to be employed in the US to maintain the visa), no matter what?
            Thank you.

          2. administrator
            Saurabh

            As your December visit will be for a conference, it’s better to come on B-1 visa. You will have to get B-1 stamped. If you already have H-1 stamped in your passport, you may be questioned about it (why going for B-1 when you have H-1 stamped etc). You can let them know that current trip is to attend the conference and you plan to use H-1 in future for employment when your employer has work for you in US.

            You can then travel to US on B-1 and attend the conference. Finally, leave US and travel back on H-1 when the time arrives.

            Did I miss any question in your previous post?

          3. OJ

            Thank you very much.
            Actually I am from a coutry with the visa waiver program with the US so I won’t have a B-1 visa. Then can I say at the port of entry that I am on the visa waiver program and not going to use my h-1 visa for this visit because I am not going to work and say that I will be back later to work in my h-1-b status? Or is it too risky?

          4. administrator
            Saurabh

            I don’t know how visa waiver program works, but yes you can let them know that you don’t want to get admitted on H-1, but just want to attend the conference and return back. You have to ensure that the officer doesn’t admits you on H-1, or else that would become your status. The officer would issue an I-94 to you and mention the visa category on that document.

          5. administrator
            Saurabh

            Probably because I spend (or waste depending upon who you ask) too much time on all the immigration forums :).

          6. OJ

            Dear Saurabh!
            Sorry for more questions! 😛

            While I am in D.C. for a conference, I may stay in the D.C. office of my company for a few days (to meet people there and do the same type of work that I am currently doing) The purpose is to familiarize myself with the atmosphere there.
            The plan is that I will be paid by my foreign parent company and not the US company.

            Someone told me that, regardless of who pays, I should enter the US on my H-1- visa because I will “work” in the US, and that my US company does not need to continue to pay if I leave the US in December and that only when I move to the US in March next year, my US company needs to resume paying.

            Do you agree? In that case, when I enter the US this December, should I tell the immigration officer that “I will be in the US only for a week or two and then I will come back next year”? Also, should an employment letter state the same (i.e. this time: temporary, next time: longer)?

            Thank you.

          7. Yogesh

            Hi Saurabh

            In Degree certificates there is a speeling mistake in my father’s name as below.

            Passport: Shinde Yogesh Madhukar
            10th Mark sheet: Shinde Yogesh Madhukar

            12th Mark sheet: Shinde Yogesh Madhukar
            Degress Mark Sheet and certificate :Shinde Yogesh Madukar (‘H’ is missing)

            Would that cause any problem while processing H1. Please advise.

            Thanks

  35. Nagaraj

    I am looking for a H1 sponsor in and around bay area. Can you please provide me with some details? I had my petition earlier, which is expired now, and had travelled from my previous company. Will I be able to file for an extension with my new company or should I file for a new one?

  36. Pingback: Tweets that mention Redbus2US — New H1B visa petition filing guidelines and requirements for 2011 quota and New guidelines for H1B visa Extensions -- Topsy.com

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