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  • Jia Law Group

H-1B Visa FAQs: Your Comprehensive Guide to Cap-Subject H-1B Application

  1. How much does an H-1B application cost? Are employees allowed to pay the fees?

  2. Can multiple employers submit registrations for me?

  3. Do I have to be awarded a degree before H1B online registration?

  4. Can I apply for H-1B with a relatively low salary?

  5. Will I be eligible for the Cap-Gap Extension?

  6. Is it necessary to file an OPT extension application when preparing to apply for an H-1B visa?

  7. Will an expiring passport affect my H-1B application?

  8. Can I qualify for an H-1B visa if my job is directly related to my minor instead of my major?

  9. Can I apply for an H-1B if I work for a consulting company and am assigned to a client company?

  10. Can companies that are not E-Verified sponsor H-1B visas?

  11. What's the difference between Change of Status (COS) and Consular Processing (CP) for activating H-1B status?

  12. Is part-time H-1B treated differently from full-time H-1B during adjudication?

  13. Do I have to wait for H-1B approval in the U.S. before traveling abroad?

  14. Do I have to wait for H-1B approval before applying for H-4 for my spouse?

  15. Is it a must to complete the 'J-1 Two-Year Home Residency Requirement ' waiver application before the H-1B application?

  16. Can H-1B visa holders work for any company they choose?

  17. When an H-1B employee leaves the company, is the employer required to notify the USCIS?

  18. Is an employer allowed to lower an H-1B worker’s wage?

  19. Can employers reduce an H-1B employee’s working hours if there’s not enough workload?

  20. Will the proposed fee changes for H-1B application be implemented for FY2025?

  21. Will the new H-1B proposal published on October 23, 2023, be effective for FY2025?

  22. When will the H-1B electronic registration open this year?

  23. In the H-1B online registration process, is it necessary for employers to participate?

  24. Can beneficiaries check if their employer has completed the registration?

  25. Can or should employers register employees that they may not want to sponsor for an H-1B visa?



How much does an H-1B application cost? Are employees allowed to pay the fees?


Typically, the expenses for an H-1B application consist of two main components: USCIS fees and attorney fees. Employers are responsible for both fees, except for the optional Premium Processing Fee.


The USCIS fees include (subject to changes):

  • H-1B Online Registration Fee: $10;

  • I-129H Filing Fee: $460;

  • U.S. Worker Training Fee: $1,500.00 or $750.00 ($1500 with more than 25 full-time employees, or $750 with no more than 25 full-time employees)

  • Fraud Prevention and Detection Fee: $500;

  • Premium Processing Fee (optional): $2,500.


If the applicant's registration is selected and the employer wishes to proceed with the filing, the minimum USCIS fee, excluding the premium processing fee, is $1,720 based on the current fees mentioned above. For legal fees, please click here to find our pricing.


Can multiple employers submit registrations for me?


YES: The U.S. Department of Homeland Security(DHS) and the U.S. Citizenship and Immigration Services(USCIS) have stated in their requirements for Cap-subject H-1B registration that they do not prohibit multiple employers from filing H-1B cap petitions for the same beneficiary. However, they have provided a clear definition for employers, which reads as follows:

“If the petitioner (including related entities, such as a parent company, subsidiary, or affiliate) files more than one H-1B cap petition for the same beneficiary in the same fiscal year, all of the H-1B cap petitions filed for that beneficiary by the related entities would be denied or revoked unless the petitioner can demonstrate a legitimate business need for filing multiple petitions.”

In this statement, the USCIS specifies that related employers are prohibited from submitting multiple petitions for the same beneficiary, unless the employers can prove a legitimate business need for doing so. They emphasize that the definition of related employers goes beyond just parent, subsidiary, and affiliate company relationships and includes various other types of legal business collaborations.


In cases where multiple employers are not related or can demonstrate that submitting multiple applications is due to a legitimate business need, they can file multiple H-1B applications for the same beneficiary. However, when doing so based on a legitimate business need, the petitioners must prove that multiple job positions are all genuinely available and have distinct roles.


Do I have to be awarded a degree before H1B online registration?


NO: A degree is not required for H-1B online registration, but to file the petition once you get selected from the lottery, a degree will be mandatory.


Can I apply for H-1B with a relatively low salary?


MAYBE: If your salary does not meet the H-1B prevailing wage set by the U.S. Department of Labor (DOL), aside from negotiating a higher salary with your employer based on the information provided by the attorney, there are several potential solutions:

  • Change the job title: DOL has different wage levels for various job titles. Many similar positions can have varying wages due to differences in job titles. Applicants can communicate with their employer and try to meet the wage requirements by changing the job title.

  • Relocate: DOL's wage levels vary significantly for the same position in different U.S. cities. Applicants can consider changing their work location to a city with lower wage levels to meet the wage criteria.

  • Apply for a Part-time H-1B: If there's a significant gap, applicants can explore the option of applying for a part-time H-1B, where wages are calculated on an hourly basis to meet the prevailing wage set for the position.


Will I be eligible for the Cap-Gap Extension?


The Cap-Gap is an automatic extension of your F-1 status when you have a pending H-1B petition with USCIS. To qualify for the Cap-Gap extension, your H-1B petition must be filed before your OPT, STEM OPT, or F-1 status expires. This means that individuals with F-1 status valid until at least April 1st of the year can benefit from the Cap-Gap extension.


Additionally, if you plan to file your H-1B petition with Change of Status (COS), it's essential to have your current F-1 status valid at least until February 1st of the year. It's crucial to consult with an immigration attorney to understand your specific situation and plan accordingly to meet these deadlines.


Is it necessary to file an OPT extension application when preparing to apply for an H-1B visa?


It’s still recommended to file the OPT extension while preparing to apply for an H-1B visa. The main reasons are as follows:


H-1B visa lottery is random:

In cases where the number of H-1B registrations exceeds the annual quota of 85,000, the USCIS will conduct a random lottery from all the applications. If the applicant's H-1B registration is not selected and he/she has not planned for a STEM OPT extension in advance, they may miss the application window, which could lead to a significant impact on their legal work status in the U.S.


Typically, H-1B and STEM OPT extension applications can be submitted simultaneously without affecting each other, but it's important to consider the application timelines. After implementing the online registration process, the initial H-1B filing is accepted from April 1st to June 30th. STEM OPT extension applications can be filed 90 days before the current OPT expiration date at the earliest and no later than the first year OPT end date.


Unpredictable H-1B application results:

Even if the applicant's registration is selected for filing before their OPT status expires, their Cap-Gap status may still become invalid due to reasons such as a denial. In such a case, the applicant would lose the opportunity to submit a STEM OPT extension application and face the termination of their legal work status in the U.S.


If the H-1B application is ultimately not approved, but the STEM OPT extension application is successfully processed, the applicant can continue working for their current employer using STEM OPT extension status and wait for the next year's H-1B lottery.


After implementing the electronic registration process, the timeline for submitting and processing H-1B applications extends, and there may be multiple rounds of lottery. In this situation, the Cap-Gap extension might not cover the entire waiting period for the application to be approved, and some applicants might not have the opportunity to apply for a Cap-Gap extension if their application submission is late.


Freedom to choose the effective date of H-1B status:

Applicants who have submitted a STEM OPT extension application and had their H-1B application approved can independently choose when to transition from F-1 status to H-1B status. They can activate their H-1B status by entering the U.S. after applying for an H-1B visa from a U.S. consulate abroad. The date of entry becomes the effective date of the H-1B status.


Will an expiring passport affect my H-1B application?


MAYBE: For H-1B applicants, the validity of your passport can have implications at certain stages of the application process.


During the online registration phase, you are required to provide your passport number, and the passport's expiration date has minimal impact. However, if your passport expires during the H-1B adjudication stage, the USCIS will issue an RFE (Request for Evidence) requesting a valid passport. We recommend that applicants with passports nearing expiration should promptly apply for a new passport at the nearest embassy or consulate in the U.S. This will help avoid any disruption to applications related to changing or extending your status while in the U.S.


Furthermore, if you are an applicant who needs to apply for an H-1B visa at a U.S. embassy or consulate abroad before returning to the U.S., you should ensure that your passport has at least 6 months of validity to obtain a visa.


Can I qualify for an H-1B visa if my job is directly related to my minor instead of my major?


MAYBE: You might qualify for an H-1B visa even if your job is directly related to your minor field of study rather than your major. The key factor is demonstrating that your education, combined with your professional experience, is equivalent to a U.S. bachelor's degree in the specific field required for the job. Typically, 3 years of professional experience can be considered equivalent to 1 academic year. It's highly advisable to consult with an immigration attorney to assess your transcripts and work experience to determine if you meet the academic requirements for the position.


Can I apply for an H-1B if I work for a consulting company and am assigned to a client company?


MAYBE: If, in your H-1B application, you can convincingly demonstrate a genuine employer-employee relationship between you and the consulting company, and it doesn't simply involve the consulting company recruiting staff for its clients, then your application typically falls within the type that USCIS can accept. USCIS has clear compliance requirements for this type of application. If your current employer is a consulting company, it's crucial to consult with an immigration attorney to determine whether your application complies with the USCIS-recognized employment relationship.


Can companies that are not E-Verified sponsor H-1B visas?


YES: The H-1B application requirements do not mandate that applying companies must be E-Verified. However, it's important to note that students in STEM fields, when applying for the additional 24-month OPT extension, need to ensure that their current company is E-Verified.


Additionally, non-STEM students or STEM students without plans to apply for the OPT extension do not need to be employed by an E-Verified company to apply for OPT.


What's the difference between Change of Status (COS) and Consular Processing (CP) for activating H-1B status?


Change of Status (COS): This method is for individuals who are already present in the U.S. under a different visa category (like F-1) and want to switch to H-1B status without leaving the country. By filing an H-1B petition with COS, once approved, their status automatically changes to H-1B on the requested start date.


Consular Processing (CP): In contrast, CP is for individuals who are currently outside the U.S., or individuals in the U.S. but prefer to not activate their H-1B status immediately upon approval. They will need to attend an H-1B visa interview and, upon approval, enter the U.S. with their H-1B visa to activate the H-1B status.


Is part-time H-1B treated differently from full-time H-1B during adjudication?


There isn't a legal distinction between full-time and part-time H-1B employment in the application process. However, it's important to note that USCIS tends to scrutinize part-time H-1B positions more closely, making approvals for these cases more challenging.


Do I have to wait for H-1B approval in the U.S. before traveling abroad?


MAYBE: If you are filing your H-1B petition with Change of Status (COS), it is advisable to wait for the H-1B approval before traveling abroad. Traveling before the H-1B approval may be considered an abandonment of your COS request. Always consult with an immigration attorney to ensure your specific circumstances align with the best course of action.


Do I have to wait for H-1B approval before applying for H-4 for my spouse?


NO: H-1B applicants can submit an H-4 application for their spouse concurrently with their own application, and there is no need to wait for the H-1B application to be approved. USCIS processes H-1B applications with accompanying H-4 applications in line with the same requirements and standards as standalone H-1B applications. Therefore, applying for H-4 status for your spouse while applying for H-1B will not impact your application.


In cases where both applications are submitted simultaneously, if the processing proceeds smoothly, the H-4 application typically gets approved after the H-1B application. However, if an H-1B applicant did not submit an H-4 application concurrently, the spouse can still obtain H-4 status through either a change of status within the U.S. or visa stamping at a U.S. consulate abroad. It's important to note that the validity of H-4 status is dependent on the validity of the H-1B status.


Is it a must to complete the 'J-1 Two-Year Home Residency Requirement ' waiver application before the H-1B application?


NO: Some J-1 visa (Exchange Visitor Visa) holders are subject to a two-year home residency requirement. If these J-1 visa holders wish to obtain an H-1B visa to work in the U.S. during this period, they must apply for a waiver with USCIS to remove the requirement. The processing time for J-1 waivers typically ranges from 4 to 6 months.


A critical question regarding the timing of J-1 waiver applications and H-1B applications is whether the J-1 waiver must be approved before initiating the H-1B process. According to the U.S. Department of State, the statement is as follows:

“If you cannot return home for two years, you must apply for a waiver. The Department of Homeland Security must approve your waiver before you can change status in the U.S. or receive a visa in certain categories.”

It's required that applicants have an approved J-1 waiver before transitioning to H-1B status. In other words, the J-1 waiver application can proceed concurrently with the H-1B visa application. However, we still recommend that J-1 visa holders planning to apply for H-1B submit their waiver applications as early as possible to avoid potential impacts on future status changes.


Can H-1B visa holders work for any company they choose?


NO: H-1B visa holders are typically authorized to work only for the employers who sponsored their visa and had their petitions approved by USCIS. If an H-1B employee wishes to work for a different employer or multiple employers part-time, they must file a concurrent or change of employer petition.


When an H-1B employee leaves the company, is the employer required to notify the USCIS?


YES: When an H-1B employee leaves the company, the employer should work with their immigration attorney to withdraw their sponsorship of the employee with USCIS and withdraw the certified LCA.


Is an employer allowed to lower an H-1B worker’s wage?


MAYBE: An H-1B employer can potentially lower the H-1B worker’s wage as long as the reduced wage still meets the prevailing wage stated in the Labor Condition Application (LCA) and the H-1B petition. If an employer wishes to pay an H-1B worker less than the initially approved level, they must notify USCIS of this change through filing an H-1B amendment petition. It's important to note that this amended petition must receive USCIS approval before implementing the reduced wage.


If you're an H-1B worker facing a wage reduction or an employer contemplating such a change, it's strongly recommended to consult with an immigration attorney to understand the specific implications for your situation.


Can employers reduce an H-1B employee’s working hours if there’s not enough workload?


NO: An H-1B employee cannot be benched during times of low workload. The employer is required to pay the H-1B employee the full salary as mentioned in the Labor Condition Application (LCA) and the H-1B petition. If the employer wishes to lower the employee’s working hours, an H-1B amendment petition needs to be filed with USCIS to stay in compliance. Given the complexities and potential legal implications, it's advisable for employers to consult with an immigration attorney when considering changes to an H-1B employee's working hours.


Will the proposed fee changes for H-1B application be implemented for FY2025?


In January 2023, USCIS published a Notice of Proposed Rulemaking (NPRM) to adjust certain immigration and naturalization benefit request fees. However, the proposed rule has not been finalized yet and all fees will remain current until a final rule has been published. See below for the proposed fee changes related to H-1B petition for your reference.


Current

Proposed

Increase

H-1B Online Registration Fee

$10

$215

2050%

I-129H Filing Fee

$460

$780

70%


Will the new H-1B proposal published on October 23, 2023, be effective for FY2025?


The proposed changes are not final and do not have any immediate impact on U.S. immigration law. Under the Notice of Proposed Rulemaking (NPRM) process, the public will have until December 22, 2023 to submit their feedback before a final rule is published.


See below for some of the major proposed changes:

  • H-1B Lottery: cap registrations will be selected based on unique passport number instead of per registration to provide fairness and less of an incentive to do fraud.

  • F-1 Cap Gap: change to end of cap gap from October 1st to April 1st to accommodate for adjudication delays which prevent students from working beyond October 1st.

  • H-1B Start Date: employers can request a start date within a 6-month window from the petition filing date during the fiscal year, and will not be forced to indicate October 1st as the start date on the petition.

  • Eligibility for Entrepreneurs: beneficiaries with a controlling interest in the petitioning entity will be eligible for the H-1B visa as long as more than half of the individual’s time is spent on specialty occupation duties. While the initial approval and first extension is valid for 18 months, the subsequent extension will be the standard 3 years.

  • Cap Exempt Flexibility: requirements to be eligible as a cap-exempt employer is more loosely defined to meet the definition of a nonprofit research organization.

  • Defining Specialty Occupation: revise and clearly define that a specialty occupation should be more specifically tied to the job duties and require a specific degree instead of a general degree.

  • Site Visits: mandatory participation from employees during USCIS site visits. Failure to participate will result in the H-1B petition being denied or revoked.


When will the H-1B electronic registration open this year?


As of now, the USCIS has not released specific information about the opening dates for online registration for fiscal year 2025. Typically, following previous years' practices, USCIS is expected to open ‘H-1B Registrant Account’ creation on MyUSCIS in late February 2024, and begin accepting online registrations in early to mid-March. Below is a timeline of previous years' online registration system opening dates for reference:



Registrant Account Creation

Online Registration

FY2025

From 2/28/2024

From 3/6/2024 12 PM EST.

To 3/22/2024 12 PM EST.

FY2024

From 2/21/2023 12 PM EST.

From 3/1/2023 12 PM EST.

To 3/20/2023 5 PM EST. (Deadline extended from 3/17/2023 12 PM EST.)

FY2023

From 2/22/2022 12 PM EST.

From 3/1/2022 12 PM EST.

To 3/18/2022 12 PM EST.

FY2022

From 3/2/2021 12 PM EST.

From 3/9/2021 12 PM EST.

To 3/25/2021 12 PM EST.

FY2021

From 2/24/2020 10 AM EST.

From 3/1/2020 12 PM EST.

To 3/20/2020 12 PM EST.


In the H-1B online registration process, is it necessary for employers to participate?


YES: The USCIS typically opens ‘H-1B Registrant Account’ creation for the H-1B online registration system for employers in early March each year. Employers, as the applicants for H-1B petitions, are required to provide essential information in the system, including company name, address, EIN number, the authorized signatory's name, job title, contact details, and more. In the subsequent formal online registration phase, each registration must undergo online review and signing by the employer before it can be submitted by either the attorney or the employer themselves.


Can beneficiaries check if their employer has completed the registration?


NO: When the employer or the attorney completes the electronic registration for the beneficiary and submits it, the system generates a 15-digit confirmation number. However, beneficiaries cannot use this number to check the status of the registration on the ‘USCIS Case Status Online’.


If the beneficiary's electronic registration gets selected, the USCIS will send a selection notice to the employer and the attorney via email. After filing the H-1B application, the USCIS will issue a receipt notice. At that point, the beneficiary will be able to use the number on the receipt notice to check the status of their case on the ‘USCIS Case Status Online’.


Can or should employers register employees that they may not want to sponsor for an H-1B visa?


If employers register employees who they don’t intend to sponsor this would fill up the H-1B quota with registrations that would never be used, and USCIS will flag employers that do not file H-1B petitions for selected foreign nationals for possible fraud investigations. Therefore, employers should be sure to register only employees that they intend to sponsor and that are qualified for H-1B visas.


If you have any questions about H-1B applications, please feel free to click here and reach out to us.


 

All rights reserved. All content of this blog is the property and copyright of Jia Law Group and may not be reproduced in any format without prior express permission.


Contact marketing@jiaesq.com for more information or to seek permission to reproduce content. This blog is intended for general information purposes only. It does not constitute legal advice. The reader should consult with knowledgeable legal counsel to determine how applicable laws apply to specific facts and situations. Blog posts are based on the most current information at the time they are written. Since it is possible that the laws or other circumstances may have changed since publication, please call us to discuss any action you may be considering as a result of reading this blog.

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