Procedures

F-1 Students

The F-1 alien should file to change status well in advance, because employment pursuant to the H-1B petition cannot begin until the petition is approved and a visa number is available. An F-1 student filing for a change of status may remain in the US during this time. Under an interim rule fixing the cap-gap, an F-1 student’s status and work authorization under optional practical training will be extended if the student is subject to the cap and is applying for an October 1 start date, provided the student requests a change of status and has maintained an 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 US, the alien must obtain a new visa before reentering the US after a trip abroad (exceptions for the automatic revalidation rule)

Premium Processing

The H-1B petition can be filed via premium processing by payment of an additional $1,225 fee. The US CIS must adjudicate the petition or request additional evidence within two weeks of receiving the petition.

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 attorney's 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 begin employment with the H-1B petitioning employer upon filing an H-1B petition. This applies to aliens who are changing H-1B employers.

Contact Attorney Monique Kornfeld: 617-323-5049.