Q: What is H-1B status?
A: The H-1B is a temporary nonimmigrant visa category for specialty occupations. The H-1B visa category allows individuals to work for US employers in professional positions. The H-1B position must be one which requires at least a US Bachelor’s degree or its equivalent in a specialized area in order to perform the job duties.
Q: How long may an individual remain employed in H-1B status?
A: Generally, the H-1B may be obtained for a maximum of six years. The initial petition is approved for a maximum of three years. An extension for the additional three years is then possible.
Under limited circumstances, it may be possible to recapture time spent outside the U.S. or request additional time under the American Competitiveness in the Twenty-First Century Act (“AC-21”). The USCIS allows foreign workers to document the amount of time they have spent outside the US while in H-1B status for the purpose of recapturing that unused time and to fully maximize the H-1B six-year limit. Under AC-21, an individual can obtain an extension past the normal six-year limit in two circumstances: 1) if the individual has been in the green card process for at least a year, they may be able to obtain H-1B extensions in one year increments until a decision is made on the green card case; 2) if the individual has an approved I-140 petition (part of the green card process) but cannot move forward with the green card case because the priority date is not current, they may be able to obtain H-1B extensions in three year increments until a green card number becomes available.
Q: How is an H-1B Change of Employer (COE) case different than a "normal" H-1B case?
A: The H-1B COE case (also known as an H-1B transfer) allows an employer to hire a foreign national who is in H-1B status for another company. What is unique about an H-1B change of employer case is that the new employer does not have to wait for the H-1B COE petition to be approved before allowing the foreign national to commence work. The employer can choose to begin employment of the foreign national once the H-1B COE receipt notice is issued.
Another unique component of an H-1B COE case, is that most cases are not subject to the H-1B quota limits. There are a limited number of new H-1B numbers available each year. Once the numbers are exhausted, no new H-1B petitions can be approved for that fiscal year. Most H-1B COE cases are not subject to these H-1B quota limits since the foreign workers were usually counted towards the H-1B quota with their initial H petition.
Q: What questions should an employer ask a potential hire before proceeding with an H-1B COE case?
A: We recommend that the following questions be asked –
1. Is the foreign national still actively employed with their current H-1B employer?
2. When did they first obtain H-1B status/How much H-1B time have they already used?
3. Has a green card process been started for the foreign national?
4. If yes, where exactly are they in the process (i.e. labor certification approved, I-140 approved, I-485 application pending, etc.)?
5. Is their current H-1B employer an institution of higher education, a non-profit organization affiliated with an institution of higher education, a non-profit research institution, or governmental research organization?
Q: The potential hire’s current H-1B employer is an institution of higher education. Does this matter?
A. Yes. It is important to determine if the foreign worker has been previously counted toward the H-1B numerical quota. Certain H-1B employers are exempt from the H-1B quota limits. These employers include certain institutions of higher education; nonprofit organizations/entities related to or affiliated with an institution of higher education; nonprofit research organizations; and governmental research organizations. If a foreign worker was not previously counted towards the H-1B quota because they were employed by an exempt employer, the foreign worker will be subject to the H-1B quota limits for the H-1B COE case if the new employer is a not an exempt employer as listed above. If there are H-1B visa numbers available, this is not a big issue. However if the H-1B numbers have been exhausted for the fiscal year, an H-1B COE case in this situation may not be feasible since an H-1B number is not available.
Q: When can an employee start employment with the new H-1B employer?
A: For H-1B COE cases, an employee can start employment with the new employer once the USCIS confirms receipt of the H-1B COE case. This confirmation is normally shown by the issuance of an H-1B receipt notice.
Q: Is a Federal Express delivery confirmation sufficient proof of filing?
A: Overnight courier delivery confirmation is proof that the H-1B COE package arrived at the USCIS facility. However, it is not proof that the USCIS accepted the case for processing. Only the H-1B receipt notice provides such proof. Some employers choose to take an aggressive approach to H-1B COE cases and use the overnight delivery confirmation as proof of filing. These employers run the risk that the case may later be rejected for processing (wrong fee, wrong service center, etc.). In addition, the overnight delivery confirmation does not provide the information needed to update the I-9 form. Section 2 of the I-9 form confirming authorization to work must be completed within 3 working days.
Q: How long does it take for an H-1B COE receipt notice to be issued?
A: Normally, we receive H-1B receipt notices within 3-10 days of filing. However, there have been instances where it has taken longer.
Q: How will an employer be notified that an H-1B COE receipt notice has been received?
A: Our office will send the employer an e-mail with a PDF scan of the H-1B COE receipt notice. In addition, we will send the original H-1B COE receipt notice to the company by Federal Express.
Q: Is premium processing required or recommended for an H-1B COE case?
A: Premium processing is not required for H-1B COE cases since the foreign worker has the ability to begin work based on the H-1B COE receipt notice. However, some employers choose to premium process these cases to ensure that the petition is approved before bringing the foreign worker on board. There are certain situations where LMAC may recommend premium processing for an H-1B COE case (ex. individual is no longer working at the time the H-1B COE is filed). Premium processing guarantees a response (approval, denial, or request for additional evidence) within 15 days of filing.
Q: What happens if I start the foreign worker on the H-1B COE receipt notice and the case is later denied?
A: Once notification is received that the H-1B COE case has been denied, the employer must terminate employment immediately. The individual may have the option of returning to their prior H-1B employer but this is dependent on whether the prior employer wants them back and if the prior H-1B petition was revoked. If the individual is not able to resume their prior H employment, they will need to depart the US. In some situations, the USCIS may require that individuals return to their home country in order to obtain a visa for re-entry into the US.
Q: What if the potential hire has been laid off - does that impact the H-1B COE case?
A: Yes. Normally for an H-1B COE case, we must show that the foreign worker has been maintaining H-1B status. Maintaining H-1B status means that the foreign worker is actively employed by their H-1B sponsoring employer. To prove that the foreign worker has been maintaining H-1B status, USCIS requires copies of the individual’s most recent paystubs as part of the H-1B COE submission. If the foreign worker has been laid off, they are no longer maintaining their H-1B status which could impact whether an H-1B COE case would be approved.
It is important to know when the foreign worker was laid off. We may be able to request that the USCIS use its discretion and overlook the period of non-maintenance of status. The USCIS may be willing to use its discretion to approve the H-1B COE case if the period of non-maintenance of status is ten days or less. If the foreign worker has been laid off for a longer period of time, we may discuss other options for processing the H-1B petition such as filing the case for consular notification. These options may require the foreign worker to depart the US and re-enter in order to activate their H-1B status.
Q: The potential hire says that even though they have already been terminated, the prior employer will not notify the service of the termination for another two weeks. Does this help the H-1B COE case?
A: No. Whether the prior employer has notified the USCIS of the change in employment does not impact an H-1B COE case. What is relevant is the date the foreign worker stopped being actively employed by the prior H-1B employer.
Q: The potential hire says that they are on an unpaid leave, how does this impact the H-1B COE case?
A: If the unpaid leave is based on family medical leave or disability, the USCIS takes the position that the foreign worker is still maintaining H-1B status. However if the unpaid leave is for any other reason, the foreign worker is not maintaining H-1B status and this could impact the feasibility of an H-1B COE case.
Q: What if the potential hire has an EAD work authorization card based on his green card process - should we still consider an H-1B COE case or can we employ him on the EAD?
A: This is a business decision for the company to make. Our firm and USCIS recommend that a foreign worker maintain their nonimmigrant status (if possible) while completing the green card process. H-1B status provides the foreign worker more protections and is not tied to the green card process. For this reason, we normally recommend that an H-1B COE case be done rather than relying on an EAD card for work authorization. However we would need to review the specific facts on a case by case basis.
Please note that if an individual has already commenced employment using an EAD card based on the green card process, they are unable to resume H-1B status without jeopardizing the green card case.
Q: How does an employer complete the I-9 Form when an H-1B COE worker begins employment on the receipt notice?
A: In Section 2 of List A, the employer would note the individual’s foreign passport, Form I-94 indicating H-1B status, and Form I-797C indicating USCIS’ receipt of the H-1B petition. This documentation is valid until the date of the USCIS’ written decision of the H-1B COE case.
