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Frequently Asked Questions about H-1B Visas

Law Offices of Yu & Associates

Question: Is it difficult to get in under the H-1B cap? Does it fill up very quickly?

Attorney Yu: In recent years, the H-1B cap has filled up extremely quickly, within a few days of April 1. Based on the number of companies contacting us about applying for H-1B for their employees and the state of the US economy, we can expect this trend to continue. Therefore, if you wish to apply for H-1B, you must make sure to plan ahead and submit your application on the first day that USCIS accepts petitions (April 1).

Question: I'm currently in F-1 OPT status. Once my H-1B visa petition is approved, can I start working in H-1B status?

Attorney Yu: No. The earliest date you can start your H-1B job is October 1 of this year. Generally speaking, you must continue working in OPT status until October 1.

Question: What if my OPT status expires in February of this year, before my H-1B visa takes effect? What should I do?

Attorney Yu: Under current laws there is a remedy for this problem. You need to contact your school's international student office and request a cap-gap extension to extend your F-1 status. This way, you can legally remain in the US and work until the start of your H-1B visa.

Question: How long is an H-1B visa valid for? Can it be extended? In total, how many years could I stay in the US and work with an H-1B visa?

Attorney Yu: An initial H-1B visa is valid for 3 years, and it can be extended before its expiration for another 3 years, so the total number of years you can stay in the US in H-1B status is six.

Question: With an H-1B visa, can I work two different jobs at the same time?

Attorney Yu: Yes. H-1B can be used for part-time work as well as for full-time work, and it is possible to hold multiple H-1B visas at the same time. However, each position must be with a separate employer and they must each submit an H-1B petition. The time limit of six years total remains the same; it is not affected by having multiple jobs.

Question: If I have to go abroad while in H-1B status, because of family or other matters, can I get back the time spent outside the US against the six year maximum stay?

Attorney Yu: In most cases, yes. If you are outside of the US for more than one month, very likely you will be able to "recapture" this time. Of course, you will need to provide US Citizenship and Immigration Services (USCIS) with detailed documentation of your travel, such as plane tickets, visa stamps, etc. But if you leave the US for a week or two at a time, even if it collectively adds up to several months, it can be difficult to recapture the time.

Question: After working in the US for six years with an H-1B visa, will I then not be able to work in the US anymore?

Attorney Yu: There are a few solutions to this problem. You could leave the US for one year, then apply for a new H-1B visa to come back and work in the US. You do not need to go back to your native country; you can go to another country if you wish. If your company has branch offices in other countries, you could go to one of these for a year to work, then return to the US in H-1B or L-1 status.

Question: I heard that if I apply for a green card while on my H-1B visa, then while waiting for the green card, I can continue to work in H-1B status, beyond the maximum of six years. Is this true?

Attorney Yu: If your employer submits an I-140 immigration petition or labor certification application before the end of your fifth year in H-1B status, then you do not need to worry; your employer can apply for an H-1B extension for you. If your I-140 has not been approved when the six year H-1B stay is up, then your H-1B visa can be extended one year at a time. If your I-140 has been approved, but you haven't yet received your green card, your employer can apply to extend your H-1B visa for three years.

Question: If my company applied for a green card for me while I was in H-1B status, but I later I went out of the US, will this affect my immigration petition?

Attorney Yu: This should not affect your petition. As long as the company still intends to employ you and continues to uphold the job offer, then your immigration petition can proceed, even if you are not in the US. This is because the immigration petition is based on future employment.

Question: What if I am not in the US during adjustment of status? Will this affect the process?

Attorney Yu: It does not affect it much. If, during the adjustment of status stage, the applicant is in the US, then he or she adjusts status in the US. If for some reason you are not in the US, you request your green card through the consular process abroad.

The above is a general introduction to immigration policies, and should not be construed as individual legal advice. For specific legal questions, please contact the Law Offices of Yu & Associates. Attorney Xiaohui (Sharon) Yu is a graduate of New York University School of Law, one of the top five law schools in the US, and has practiced law at some of the top firms in the US, UK and China.

Tel: 301-838-8986, Fax: 202-595-1918; E-mail:, Address: 110 N. Washington St., Suite 328E, Rockville, MD 20850. (All rights reserved.)

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