H-1B Visa

H1B Visa Advertising Requirements

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I would like to apply for an H1B visa but I have some concerns. I heard that my employer has to advertise for my position to make sure no Americans want the job before he can sponsor me. Is that true?

No, advertising for the position is not a requirement for the H1B visa program. Advertising the position to see if there are any minimally qualified US workers who want the position is a requirement of the PERM/Labor Certification program which is the first step in some employment based green card applications. The idea of requiring employers to first offer job openings to US workers before foreign nationals is something that has been considered by Congress off and on over the years. Most recently, Senators Grassly and Durbin floated this idea back in April 2009.

H1B Visa vs. H1C Visa for Nurses

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I am foreign educated Registered Nurse. I have obtained nursing license for RN from Arkansas State Board of Nursing. Due to my F1 visa status I am not able to get RN jobs in the USA. At present I stay in Little Rock, AR and looking for a job as RN. I come to know about your law firm and having hope to get Nursing job through H1C visa. I would like to apply for that. Thus, Will you help me to change my visa status from F1 to H1C? If so, what are the processes and criterias?

Very few hospitals qualify to sponsor a foreign nurse for an H1C visa. In fact, I am only aware of 14 such hospitals which are listed on our web site here. Hospitals not on the list may apply through the DOL for H1C certification so they may sponsor H1C visas but they must meet stringent requirements. We encourage foreign nurses to apply through the H1B program rather than the H1C program if they cannot find H1C sponsorship from one of the 14 hospitals on our web site. A nurse may obtain an H1B for certain specialty or supervisory nursing positions such as a clinical nurse specialist or certified nurse practitioner. The applicant must also hold a BSN, other Bachelor’s degree or equivalent if applying as a nurse manager or administrator.

H1B Visa Cap for Fiscal Year 2013 (Oct 2012 – Sept 2013)

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Hello. I wanted to change to H1B visa but I heard that they’ve all been used up. Is this true or can I still apply?

US Immigration law provides for 65,000 H1B visas for each fiscal year. H1B holders filing for extension or transfers are not counted against this annual cap. There is an additional 20,000 H1Bs available for foreign nationals who hold Master’s degrees from US Universities.

USCIS has indicated that all available H-1B visa numbers have been used for FY 2013.  You may apply in April 2013 for an October 2013 start date.

H1B Visa Stamping for Researchers and Scientists

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My company recently filed my H1B application which was quickly approved by USCIS. I went to the US Consulate in Chennai for stamping and they asked me to complete a detailed questionnaire about my research, my qualifications and how my trip to the US will benefit my research. I wasn’t expecting this and they told me that my answers could result in an indefinite wait for the visa stamp. Is there anything you can do to help?

While these questionnaires would appear to be more applicable to EB1 or NIW beneficiaries, they are actually for a Security Advisory Opinion from the US Department of State. These lengthy questionnaires are becoming more and more common for persons coming to the US to do any sort of research whether the application is for H1B visa, O-1 visa or EB1 or NIW. .Most of our clients are getting clearance in about 1-2 months and we are instructing applicants to plan ahead.

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.