H-1B Visas

Procedures

F-1 Students:

The F-1 alien should file to change status well in advance, since employment pursuant to the H-1B petition cannot commence until the petition is approved and a visa number is available. If filing for a change of status, an F-1 student may remain in
the US after the petition is approved
and until a visa number. Also under an interim rule fixing the cap-gap, an F-1's status and work authorization under her optional practical training will be extended if she is subject to the cap
and applying for an October 1st start date provided that she requests a change of status and has maintained her F-1 status.

Consular processing for an H-1B visa

An F-1 student seeking an H-1B
visa must consular process abroad and obtain a new H-1B visa abroad before working if there was a violation of status and a formal finding against the F-1 student.

If the F-1 alien originally changed status to H-1B in the U.S., then the alien must obtain a new visa before reentering the U.S. after a trip abroad (exceptions for the
automatic revalidation rule)

Premium Processing

The H-1B petition can be filed via premium processing, whereby an additional $1,000 fee is paid and the
US CIS must adjudicate the petition within 2 weeks of receipt or request additional evidence within this time frame becomes available.

Filing Fees

The employer must pay for certain petition filing fees and may not request reimbursement from the H-1B employee. Certain employers are exempt from these filing fees.

The employee is allowed to pay the attorneys fees only where the wage offered to the employee exceeds the

prevailing wage by the amount of the fees. Otherwise, the employer or a third party must pay.

No Benching Allowed

The employer must pay the beneficiary alien when nonproductive, with limited exceptions.

Postfiling Issues

Admission and Extension

An alien can obtain H-1B status for up
to three years at a time and for a maximum of six years. However, the alien may seek H-1B status indefinitely beyond the six year period under the following situations:

A labor certification application or immigrant visa petition has been pending for one year; or

The Form 140 is approved and a visa number is unavailable.

Portability

In certain situations, an alien may commence employment with the H-1B petitioning employer upon the filing of an H-1B petition. This applies to aliens who are changing H-1B employers.

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