Canadian & Mexican H1b and TN
• What is TN visa?
• What are differences between TN and H1b?
• How can I apply for TN?
• I am a TN visa holder. Can I apply for permanent residence?

H1b for Singaporean and Chilean
• I am a Singaporean. I want to apply for H1b. Is there any special treatment for me when I apply for H1b?
• What advantages or disadvantages of getting H1b1 visa
• How can I apply for H1b1 visa?
• Can H1b1 holder apply for permanent residency in the U.S.?

H1b Dependent Employer
• What is H1b dependent employer?
• What are the consequences for an Employer considered as an H1b Dependent Employer?

H1b Application Fees & Costs
• How much money needed for H1b application filing?
• Who should be responsible for H1b application fees & costs?

H1b and Other Non-immigrant Visa:
• I am a J1 visa holder. Can I change my J1 status to H1b status?
• My OPT from F1 is going to expire in June, but my H1b will start on October 1. There is a gap. What can I do?
• What is best for me, H1b, J1 or O1? What are the differences among these non-immigrant visas?

H1b Status and Green Card Application
• I am an H1b holder. I am thinking of applying for green card. If I file I-140, can I go out of the U.S. as an H1b holder afterward?
• I have filed I-485. I also applied for I-765 and received my EAD because of the I-485 filing. If I file H1b application, will it hurt my I-485 application? Will it hurt my EAD or even my Advance Parole?

Concurrent H1b and H1b Changes & Extension
• I already got an H1b from Company X. Can I apply for 2nd H1b for Company Yat the same time?
• I am holding a cap exempt H1b. Can I concurrently hold another H1b which usually is subject to cap?
• I am a cap H1b holder. If I change my job to another employer, do I need to file a new H1b petition? When can I start to work?
• My employer has sent me out to work at a client site in another state. Do I need to file a new H1b?
• My employer changes its name. Do I need to petition a new or amend H1b?
• My employer has moved to another city. I am still doing the same job. Do I need to file a new H1b?
• I got promoted from engineer to manager. Do I need to file a new H1b?
• My employer has been merged into a new company. Do I need to file a new H1b?
• My employment with petitioning employer is terminated. Can I continue staying in the U.S.?
• My employer is out of business. What will happen to my H1b?

The same as the above.
• I just got H1b visa. Can I change employer before I actually work for the original petitioning employer on October 1?

Admission to the U.S.
• I am outside the U.S. and my H1b work will start on October 1 of this year. Can I come to the U.S. before October 1?

Trip Outside the U.S.
• I changed my status from F1 to H1b in the U.S. I plan to go back to my home country to visit my family. Do I need to apply for visa? What documents do I need to bring with me if I need to apply for a visa?

Professional Service in Our Law Firm
• How will your law firm handle an H1b case?
• What is the difference between your law firm and other law firms?

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• What is H1b?

H1b is a non-immigrant visa for professionals. The name derives from the citation of its main legal source: (H)(i)(b) of § 101(a)(15) of Immigration and Nationality Act.

• How to apply for H1b?

H1b can be divided into four categories:
1. H1b for Specialty Occupation;
2. H1b for Service relating to Department of Defense cooperative research and development project or co-production project;
3. H1b for a fashion model of distinguished merit and ability; or
4. H1b1 for Singaporean or Chilean.

H1b for Specialty Occupation concerns most of the professionals. It includes Prevailing Wage determination, Notice of Filing, e-filing of Labor Condition Application with Department of Labor, and H1b application with U.S. Citizenship and Immigration Service.

• What are common reasons for the rejection of H1b application?
1. No or wrong filing fees;
2. Form not signed;
3. Application sent to wrong service center;
4. Job doesn’t belong to specialty occupation or doesn’t require Bachelor degree as a minimum for entry into the occupation;

Cap Questions

•What is the H1b Cap?
The H1b Cap is the “numerical limit” on H1b status holders. Every year only 65,000 new H1b status holders are allowed, including 6,800 set aside for Chileans and Singaporeans for H1b1 visa.

• Who is subject to the H1b Cap?
Most applications are subject to the H1b Cap, except for the exemptions set forth below.

• Who is exempt from the H1b Cap?
1. Department of Defense H1b for research and development projects or co-production projects(but only 100 allowed);
2. Current/Previous H1b holder not using up their maximum 6 years in H1b status;
3. Current/Previous H1b holders that, although having used up 6 years in H1b status, meet certain exceptions to the 6 year H1b limit;
4. Current J status holders who will receive graduate medical education or training with a waiver of the 2 year foreign residency requirement, upon a request by an interested Federal agency or an interested State Agency to change from J status to to H1b status;
5. Employment at an institution of higher education or a related or affiliated nonprofit entity;
6. Employment at a non-profit research organization or a governmental research organization;
7. Holder of a US Master degree; 20,000 exempt per year; and
8. 2nd or subsequent concurrent H1b application.

• I am getting my Master degree in May, but I want to apply for H1b on April 1, the first day of H1b filing. Am I qualified for the US Master Degree cap when I file my application on April 1?

Usually you are not qualified for the Master Degree cap if at the time you file the H1b application, you don’t have a Master’s degree. However, you can try using a USCIS approved independent evaluator to obtain an evaluation declaring that you have obtained a de factoMaster’s degree if you have already finished all the requirements for the Master degree and the receipt of your Master degree diploma is only a matter of time.

• I have a Ph.D. degree from India. Will I have any advantages in applying for H1b?

Master cap is only applicable to the holders of a US Master degree.

• I am a postdoctoral fellow and holding an H1b from a university in the U.S. If I want to change my employer to a private company and file a new H1b. Am I subject to H1b cap?

Yes, you will be subject to the H1b cap unless there are some exceptions existing in your individual case.

• I am hired by a company doing imaging tests as a contractor at a hospital affiliated with a university. Am I subject to H1b cap?

Usually an employee in a private company is subject to the H1b cap. However, if the company employs individuals to perform job duties at a qualifying institution (i.e., a institution of higher education or a related or affiliated nonprofit entity) and the job duties directly and predominantly further the normal, primary or essential purpose, mission, objects or function of the qualifying institutions, the job may not be subject to the H1b cap.

Prevailing Wage & Salary

• How much is the salary amount that the H1b employer must pay?

The higher of either (1) the actual wage paid by the employer to employees with similar qualifications; or (2) 100% of the Prevailing wage.

• What is the Prevailing Wage?

The Prevailing wage is the wage for persons “similarly employed” throughout the area of intended employment.

• How can I find the Prevailing Wage for my job?
The employer may use wage data by State Workforce Agency, an independent authoritative source, or other legitimate sources of wage data. The employer is not required to use any specific methodology to determine the prevailing wage amount. The wage database published by Department of Labor can be used. There are some requirements for other legitimate sources, if employer decides to use them to determine the prevailing wage.

• I was sent by a Chinese company to work for a company in the U.S. Can I continue to remain on the payroll of the Chinese company if the U.S. company applies for H1b status for me?

Yes, but there are several requirements that need to be met in this situation.

• I searched the wage database of the Department of Labor and found that my current salary is below the prevailing wage amount. My employer is not willing to raise my salary to the prevailing wage level. What can I do?

There may be several ways to solve this dilemma. For example, finding another compatible job title with a lower prevailing wage or even using a different prevailing wage database. Also if your total benefits, bonus or other fringe benefits meet the requirements set forth in the regulation, they can be calculated into your salary amount.

Labor Condition Application (LCA)
• What is Labor Condition Application (LCA) ?

The H1b petitioning employer is required to file a Labor Condition Application to attest to the payment of the required wage, working conditions, notice of filing and etc. This is required before you can file your H1b petition with immigration office.

H1b Maximum Period
• I used to be a holder of H1b before I went back to school to study. Now I graduated from school and found a new employer. If the new employer files H1b for me, am I subject to the cap? When can I start working?

If you have used up your 6 year limit, you have to go out of the U.S. for at least one year before you can apply for a new H1b status. However, if you have some exceptional situations, you can extend your original H1b beyond six years. In this situation, you have to wait for the H1b approval notice before you can start working.

• I used to be a holder of H1b but I went back to my country and this time came in with B1 visa. Can I continue using my H1b quota? Was my H1b visa cancelled because of my new B1 visa?

The answer is the same as the above. Your H1b quota will not be affected by your B1visa.

• This is my 6th year of H1b. Is there any way for me to get H1b beyond 6 years? Do I need to leave the U.S.? How long do I have to stay outside the U.S.? Ordinarily you would have to leave the U.S. for at least one year in this situation; however, there are some exceptions to this rule, which are as follow:

As indicated above, if you don’t fall into these exceptions, you have to leave the U.S. before the expiration date of your H1b. Your I-94 will have 10 days grace period for you to leave the U.S. During the 10 day grace period, you are not allowed to work. You have to stay outside the U.S. for at least 1 year before you can apply for H1b again.

• I have used up my 6 years of H1b. Can I change to H4?
Yes. You will not be subject to the maximum period limit imposed on H1b. You will not, however, be able to work in the U.S. while on H4 status.

H1b Jobs
• What kind of jobs must H1b applicants have?
An H1b job must be one of the following:
1. A job in a specialty occupation;
2. A fashion model of distinguished merit and ability; or
3. Service relating to Department of Defense cooperative research and development project or co-production project.

• What does “specialty occupation” mean?
Specialty occupation means theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty or its equivalent as a minimum for entry into the occupation in the United States. These occupations include Accountant, Computer Programmer, Marketing manager, librarian, mechanical engineer.

Based on this definition, logistician, restaurant manager, cook, and other similar positions are not specialty occupations.

• How does the USCIS determine Specialty Occupations?
The immigration office will look into job duties, job requirements, industry standards, the employer’s normal requirements, the complexity of knowledge required to perform the job, and other factors to determine whether the job is in a specialty occupation.

Employees’ Qualifications for H1b: Specialty Occupation, Education & Experience Requirements
• I don’t have a Bachelor degree. Can my company file H1b for me?

Usually applicants must have Bachelor degree or its equivalent. However, if an applicant doesn’t have a Bachelor degree, he/she still can apply for H1b if he/she meets one of the following conditions:
1. Combination of education, training and experience, which has been evaluated as the equivalent to Bachelor degree;
2. Experiences alone may be sufficient if they include the theoretical and practical application of specialized knowledge required at the professional level. However, the experience has to be evaluated by an independent evaluator as the equivalent to a Bachelor degree.

• I am the owner of a company. Can my company file H1b for me?
Yes, there is no restriction for investor, owner, shareholders, president and etc. to file H1b if he/she is qualified for the H1b requirements.

Employer’s Qualifications for H1b
• My company is a very new company. We just have 3 employees. Can my company file H1b for me?
Yes, the size of the employer is not an issue.

• My company is in poor financial condition. Can my company file H1b for alien employees?
Yes. However, the company is required to pay the required wage to the H1b holders. If the company fails to pay the wage amount to the H1b holders, there will be adverse consequences to the employer.

Canadian & Mexican H1b and TN
• What is TN visa?
The TN visa is especially for professionals from Canada or Mexico. TN is only available to Canadian or Mexican citizens. Canadian or Mexican permanent residents are not eligible.

• What are differences between TN and H1b?

TN is very similar to H1b in that both are basically for professionals. However, they have several differences:
1. Nationality of aliens: Only Canadians or Mexican citizens can have TN status; while H1b status can be granted to the aliens of any nationality;
2. Cap: TN doesn’t have a statutory limitation as exists for H ;
3. Job categories: TN generally covers a broader range of job categories;
4. Period: TN doesn’t have maximum period limitation; however, the TN status holder is required to re-apply for the TN status each year as the TN status is only granted in one-year increments; The H1b has maximum period limitation (6 years) with a few exceptions; USCIS will usually only grant H1b status in three year increments;
5. Permanent residence application: TN status holders cannot have an “intent to immigrate” to the U.S., while H1b holders are allowed to have such an “intent to immigrate”. Once the alien files a permanent labor certification application or an immigrant petition, it is recommended that the TN holder should not travel outside the U.S.; while H1b holder can travel abroad.

• How can I apply for TN?

You can apply for TN at a Port of Entry, or at a US airport handling international traffic or at a US pre-clearance/pre-flight station with supporting documents, including proof of citizenship, employment letter and etc. It is not required to have a prior petition filed with the USCIS, an approval from USCIS, or a labor condition application filed with Department of Labor. However, if the TN holder is already in the U.S., the petition with USCIS for an extension of TN status, employer change, or other material change, is required.

• I am a TN visa holder. Can I apply for permanent residence?

If you cannot change to H1b status, once you submit permanent labor certification application or immigrant petition, you cannot travel outside the U.S. Therefore, make sure the remaining period of your TN status will give you enough time to obtaint a working permit based on the filing of I-485 to work legally in the U.S.

H1b for Singaporean and Chilean
• I am a Singaporean. I want to apply for H1b. Is there any special treatment for me when I apply for H1b?

Yes. People from Singapore or Chile can obtain either ordinary H1b or H1b1, the latter of which is a special treatment for professionals from Chilean or Singaporean. There are special quotas of H1b1 for aliens from these two countries: Chilean, 1,400; and Singaporean, 5,400. The number used for certain year will reduce the overall cap for ordinary H1b (65,000 minus the used number for Chilean & Singaporean). The unused number will be made available between October 1 and November 15 of the next fiscal year for ordinary H1b applicants.

• What advantages or disadvantages of getting H1b1 visa?

3. Permanent Residence Application: The H1b holder can apply for permanent residence application; but H1b1 doesn’t allow “dual intent”. This means that once the H1b1 holder submits a permanent labor certification application or immigrant petition, he/she cannot travel outside the U.S. (Therefore, make sure the remaining period of your H1b1 will give you enough time to obtain a work permit based on the filing of I-485 for you to work legally.)

• How can I apply for H1b1 visa?

If you are already in the U.S. holding H1b1 status or another non-immigrant status, to extend your H1b1 or to change your employer, you need to file your petition with USCIS.

• Can H1b1 holder apply for permanent residency in the U.S.?

If you cannot change to H1b status, once you submit permanent labor certification application or immigrant petition, you cannot travel outside the U.S. Therefore, make sure the remaining period of your H1B1 will give you enough time to obtain a work permit based on the fileing of I-485 to work legally in the U.S.

H1b Dependent Employer
• What is H1b dependent employer?
If employer is hiring H1b employees equal to or beyond certain number in comparison with its total number of employees, the employer is H1b dependent employer. For example, if the company totally employs 25 people, but has more than 7 H1b holders on its staff, the company is an H1b Dependent Employer.

• What are the consequences for an Employer considered as an H1b Dependent Employer?
An H1b Dependent Employer will be required to make extra attestations, including recruitments prior to filing Labor Condition Application.

H1b Application Fees & Costs
• How much money needed for H1b application filing?
Filing fees include (1) $320 filing fee; (2) ACWIA fee: $1,500 (but if employer has less than 25 employees, then only $750); (3) Fraud prevention fee: $500. There are some exceptions for these fees.

If you want to have expedited service, there is a premium service, which charges $1,000 for a decision to be rendered within 15 days once your case is selected for processing.

• Who should be responsible for H1b application fees & costs?
The employer is required to pay the H1b filing fees but not the attorney fees.

H1b and Other Non-immigrant Visa:
• I am a J1 visa holder. Can I change my J1 status to H1b status?
If your J1 is subject to the two year foreign residency requirement, you need to get a J1 waiver before you can change your status to H1b.

• My OPT from F1 is going to expire in June, but my H1b will start on October 1. There is a gap. What can I do?

This has been a continuous problem for many aliens. Several possible solutions, such as continuing F1 status at the same school or at a different school, applying for Curriculum Practical Training (CPT) from your school; and etc.

• What is best for me, H1b, J1 or O1? What are the differences among these non-immigrant visas?

These 3 non-immigrant visas serve different purposes and have the following differences:
1. Criteria for the Visa/Status: (1) H1b, specialty occupation and Bachelor degree or equivalent; (2) J1, visiting scholar/researcher; and (3) O1, extraordinary ability demonstrated by awards, membership in professional societies requiring outstanding achievements, major contributions to the field, and etc.
2. Maximum Period of Stay: (1) H1b, 6 years; (2) J1, 5 years; and (3)O1, no overall time limit;
3. Cap Limitation: Only H1b has a numerical limitation with exceptions;
4. 2-year Foreign Residency Requirement: Only J1 is subject to this requirement;
5. Prevailing wage: Only H1b has this requirement;
6. Dependent (Spouse or Child) Work Authorization: Only J2 holder, J1 dependent, can apply for a work permit; H4 holder and O3 holder cannot work;
7. Permanent Residence Application: (1)The law expressly recognizes that H1b holders can apply for permanent residence; (2) O1 holders’ intent to immigrate is permissible and therefore those individuals can apply for permanent residence; (3) most J1 holders needs to receive a waiver of the 2-year foreign residency requirement before becoming eligible to apply for adjustment of status.

H1b Status and Green Card Application
• I am an H1b holder. I am thinking of applying for green card. If I file I-140, can I go out of the U.S. as an H1b holder afterward?

Yes, you may go out of the U.S. by holding your H1b visa.

• I have filed I-485. I also applied for I-765 and received my EAD because of the I-485 filing. If I file H1b application, will it hurt my I-485 application? Will it hurt my EAD or even my Advance Parole?

Your H1b will not hurt your Advance Parole, and vice versa.

Concurrent H1b and H1b Changes & Extension
• I already got an H1b from Company X. Can I apply for 2nd H1b for Company Yat the same time?
A: Yes, you can get more than one H1b. The two H1b jobs can be 2 part time jobs, one part time and one full time job, and even two full time jobs. There is no set number of hours that H1b holders must work for each employer.

• I am holding a cap exempt H1b. Can I concurrently hold another H1b which usually is subject to cap?
A: Yes, you may do this concurrently, and vise versa. However, if you major H1b is cap-exempt, your cap-H1b cannot exist by itself. In other words, if your cap-exempt H1b is no longer valid, your cap-H1b will lose its validity.

• I am a cap H1b holder. If I change my job to another employer, do I need to file a new H1b petition? When can I start to work?

Yes, you need to file a new H1b before the expiration of your current H1b, but you can start working once immigration office “receives” your petition, even though the case is not approved yet. You should keep a USCIS “receipt notice” or other supporting documents for the actual receipt by USCIS to demonstrate your eligibility to start working on or after certain date.

• My employer has sent me out to work at a client site in another state. Do I need to file a new H1b?

If the new worksite is not covered by the existing CERTIFIED LABOR CONDITION APPLICATION (LCA) and it is for a long term, then a new H1b petition must be filed. Later, the H1b employee my return to the original employer after switching to another employer without a new/amendment of H1b petition, because the original H1b status with original petitioning employer remains valid until it either expires or is revoked.

• My employer changes its name. Do I need to petition a new or amend H1b?

Usually if the company just has name change without other substantial changes, you don’t need to file a new or an amended H1b petition.

• My employer has moved to another city. I am still doing the same job. Do I need to file a new H1b?

If the new worksite is not covered by the existing CERTIFIED LABOR CONDITION APPLICATION (LCA), then a new or amended H1b petition must be filed.

• I got promoted from engineer to manager. Do I need to file a new H1b?

If your job changes involve material changes, you need to file a new H1b. In this instant situation, the change from “engineer” to “manager” involves material change and a new H1b should be filed. If a promotion is only to a higher position within the same occupation, normally a new H1b petition is not required.

• My employer has been merged into a new company. Do I need to file a new H1b?

When the petitioning employer is involved in a corporate restructuring, such as merger, acquisition, or consolidation, a new corporate entity succeeds to the interests and obligations of the original petitioning employer and the terms and conditions of employment remain the same, an amended H1b petition shall not be required.

• My employment with petitioning employer is terminated. Can I continue staying in the U.S.?

If you cannot change or do not change to other non-immigrant visa, but later find a new job, and your new employer files a new H1b petition for you, the following results may occur:
(1) If the status lapses are brief and extraordinary circumstances exist, then USCIS will likely overlook brief lapses in status and allow you to get a new H1b status in the U.S.; or
(2) If the status lapses are not brief, or no extraordinary circumstances exist, then your new H1b petition by new employer may be granted without the I-94 card attached. You have to go out of the U.S., obtain an H1b visa at U.S. consulate in a foreign country, and return to lawful H1b status by re-entering the U.S.

• My employer is out of business. What will happen to my H1b?

The same as the above.

• I just got H1b visa. Can I change employer before I actually work for the original petitioning employer on October 1?

To ensure the integrity of the H1b system, USCIS will require that the worker changing employers demonstrate that he or she actually did perform work for the original petitioning employer for a significant length of time.

Admission to the U.S.
• I am outside the U.S. and my H1b work will start on October 1 of this year. Can I come to the U.S. before October 1?

Yes, 10 days before the beginning date of your H1b period.

Trip Outside the U.S.
• I changed my status from F1 to H1b in the U.S. I plan to go back to my home country to visit my family. Do I need to apply for visa? What documents do I need to bring with me if I need to apply for a visa?

You need to bring the following documents:
1. I-797 approval notice;
2. Passport that is valid for 6 months from the date that you plan to reenter the U.S.;
3. Current employment letter from your H1b employer;
4. Copy of payment stubs during last 3 months;
5. Copy of H1b Application package;
6. If your trip is to a Third country, you may need an entry visa to enter the country.

Professional Service in Our Law Firm

• How will your law firm handle an H1b case?
1. First, we will do initial evaluation based on your resume to decide whether you are qualified for H1b status, including whether your job qualifies for a specialty occupation and whether you possess a bachelor degree or equivalent;
2. Once we decide you are qualified for an H1B visa, we will give you a Fee Schedule and a Retainer Agreement for you to make decision;
3. Once you decide to retain our law firm to handle your H1b case, you sign the retainer agreement and pay the legal fee;
4. We collect documents and information necessary to file your H1b case, including a copy of your diploma, copies of your immigration documents, information about your employer and your job, and etc.;
5. If your degree is from a foreign country or if you want to evaluate your experience to be equivalent to a Bachelor degree, we will help you to find suitable academic evaluator(s) to do an evaluation;
6. If your paper or documents need translation, we will help your translators do the translation in a proper and acceptable way;
7. We will prepare your H1b petition in a highly professional manner; the preparation work will include a prevailing wage survey, posting notice of filing, Labor Condition Application, preparing petition forms and other necessary work;
8. We will also communicate with your employer efficiently to help you successfully acquire your H1b status;
9. Before and after filing your petition, we will help you understand your benefits and rights as a potential H1b holder; and
10. After you acquire your H1b status, we will also answer questions regarding your H1b status to protect your rights and benefits as an H1b holder.

• What is the difference between your law firm and other law firms?

We deeply understand the immigration status is very important for you to enjoy the rewards of your hard work and to fulfill your American dream. We strive to provide legal services of the best quality with reasonable legal fees.

We also believe that lawyers, when practicing law for a living, should also play a role to seek justice and fairness for their clients and for society in general. No matter what background you come from, and no matter what your current financial status is, we will treat you as our most valuable client and pursue your interests with our best efforts and due diligence.

DISCLAIMER
The information in the following Q&A for H1B is free of charge and intended to be a general summary of current U.S. immigration laws and regulations. It shall not substitute the judgment of a qualified immigration attorney; neither shall it be taken as the legal advice for any individual case or situation.
We do not warrant the completeness, timeliness or accuracy of any of the information contained here. We exclude all representations, warranties and conditions, including, without limitation, the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill.
The information here may be subject to changes at any time in our sole discretion without notice. In no event shall we be liable for any damages or losses of any kind related to the use or misuse of information provided hereby.