H-1B Visa

H1B Approved but Change of Status Denied

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I think my lawyer screwed me up. He told me that my H1B was approved but in the I-797C, it says that my change of status was denied! Can I appeal this?

Yes, this may be something that should be appealed but without more information about you case, I don’t see any evidence that your lawyer made a mistake. The requirements to obtain an H1B approval and a change of status are completely separate. In order to show that you qualify to change your status, you must show that you were in a valid nonimmigrant status at the time you filed your H1B petition AND if your H1B start date was October 1, that your status was valid through October 1 or that you qualified for an exception such as the F1 cap gap rule.

H1B Visa and H4 Visa Extension

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Is my H4 extended automatically when my husband extended his H1B? I’m worried because he got a new I-94 card when he extended his H1B but I haven’t gotten anything.

An H4 visa status application may be filed concurrently with an H1B status application but they remain separate applications. If you did not file your own application then you will not receive a new I-94 card and are out of status and are accruing unlawful presence from the time your I-94 card expired. In some cases, USCIS will accept an untimely filed H4 visa status extension application but it can be difficult. We have been able to obtain approvals in these types of cases and some cases where the applicant was out of status for two years. However, it is important to have a good immigration history which means no previous immigration violations as well as no criminal history and generally have a record of good moral character.

J1 Waiver

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I am currently on a J1 visa and am working at University of Chicago. I need a J1 waiver so I can switch to H1B visa because I am on my final J1 extension. Can I do no objection waiver? I am from Argentina.

A no objection based waiver is likely a good choice for you provided that you did not receive any government funding for your J1 program. However, if you have received government funding such as Fulbright, the chances of a no objection based waiver are very small without significant political support.

H1B Visa Extensions Beyond the Six Year Limitation

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The maximum duration for status as an H1B visa holder is six years.  Any time spent in L status or other H status such as H2B or H4 visa status is included.  Normally, a foreign national who wishes to hold H1B visa status beyond the six year maximum is prohibited unless he or she spends at least one year outside of the US before re-entering in H1B visa status.  This six year limited does not apply in the following cases:

  • The H1B visa holder is working on a certain US Department of Defense project; or
  • Where the work is seasonal or intermittent or is in the US for less than six months out of the year.

There are three strategies which can be used to overcome the six year limitation.

  • AC21 Extensions in One Year or Three Year Increments AC 21 104(a)

An H1B visa holder can extend their H1B visa status in one year or three year increments if a labor certification (PERM) or Form I-140 was filed at least 365 days prior to the submission of the extension request or at least one year prior to the completion of the 6th year.  Additional extensions may be granted until a decision has been made on the I-485.

  • AC21 Extension in Three Year Increments AC 21 106(c)

An H1B visa holder who has an approved Form I-140 but in unable to file a Form I-485 due to per country limitations (priority date is not current according to the Visa Bulletin), H1B visa extensions may be granted in three year increments.

  • Recapturing Time Spent Outside the US

While this really won’t get you around the six year limit, it does allow an H1B holder to apply for an H1B extension and “recapture” days spent outside of the US.  If the H1B visa holder was outside the US for 61 days in the 6 years they held H1B status, they can recapture those days in an H1B extension application.

USCIS Providing Some Flexibility With LCA Issues in H1B Visa Applications

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On July 1, 2009 the Department of Labor (DOL) mandated that all LCA filings must be filed through the iCert portal and that individual officers would review filings prior to certification.  While estimated processing times were initially 7 days, human error and other systemic problems resulted in filing taking three weeks or longer.  Because USCIS rules require a certified LCA to be filed along with the H1B visa petition, many H1B visa applicants were not able to timely file their applications and were capped out or failed to file a timely extension or transfer.

Now it has been over 6 months and the DOL has still not fixed the issues, most notably the FEIN problem.  Fortunately, the USCIS has recognized these problems and has given applicants to ways to get around these problems, though neither are perfect fixes.

First, the USCIS will allow H1B visa filings without a certified LCA provided that the LCA was filed with the DOL and has been pending for at least 7 days.  However, the pending LCA must be approved at later filed with USCIS.  This really isn’t much of a solution because the main cause of delay in LCA cases are denials due to FEIN issues.

Second, the USCIS will forgive late filings where the delay was out of the control of the petitioner.  This will be extremely helpful though in cases where the petitioner did not request late filing forgiveness, they will have to pay the fees to reopen the application.

FY 2010 H1B Visa Cap Met

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USCIS has just announced that as of December 21, 2009, they have received sufficient H1B visa petitions to meet the 65,000 general cap.  Petitions received on December 21 will be subject to a random drawing and petitions received after December 21 will be rejected.

USCIS will continue to accept non-cap subject H1B petitions for FY 2010 start dates and will begin accepting FY 2011 petitions on April 1, 2010.

FY 2010 H1B Visa Cap: December 2009 Update

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As of December 12, 2009, USCIS has received 62,900 H-1B Visa petitions and are only 2,100 away from hitting the 65,000 H1B Visa cap for FY2010.  USCIS representatives have confirmed the uptick in applications and have indicated that the cap will be met very soon.  USCIS also confirmed that there is weak demand for visas under the Chile (1,400) and Singapore (5,400) set asides.  If USCIS feels these allocations will go unused, they may return these visas to the general H1B Visa pool.  Regardless, it is unlikely the FY 2010 H1B Visa Cap will last beyond the end of 2009.

FY 2010 H1B Visa Cap

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Current regulations provide for 65,000 H1B Visas to be made available for fiscal year 2010.  Fiscal year 2010 or FY2010 covers the period of October 1, 2009 through September 30, 2010.  There are exceptions such as the 20,000 visas reserved for Master’s degree holders but the majority of applicants will fall under the general 65,000 cap.

FY2010 has been much different than the past several years where a flood of applications were made in the initial filing period and every visa was allocated just weeks into the filing season.  As of this posting, there are still several thousand H1B visas available.  On November 27, 2009, the USCIS announced that 58,900 H1B have been filed, leaving just over 6,000 available.  From October 25 to November 27, 6,100 applications were filed so if filings remain steady, we can expect the H1B cap to be met by the end of the year.

If you intend to file a H1B cap subject application, we recommend filing as soon as possible or you may have to wait until April 1, 2010 to file a FY2011 application.