H-1B visas – Fact or Ficton

Berardi Immigration Law represents many employees and individuals regarding the H-1B visa category.  Today, we will focus on some of the most common questions we are asked:

Statement #1:
I’m currently in H-1B status, this means I can change employers and start working for them immediately.

FACT. If you are in current valid H-1B status, you can begin working for the new employer as soon as USCIS receives the “change of employer” H-1B petition.  However, there is also FICTION to this statement.  If you have stopped working for your current H-1B employer, then you are NOT in valid H-1B status and a change of employer cannot be filed.  This means that you must wait until your new H-1B petition is approved before you can begin working.  

Statement #2:
I will not be able to obtain an H-1B visa because I will not be working at my employer’s location.

FICTION. If your employer is willing to sponsor you but your work location is at a third-party site, you may still be able to obtain an H-1B visa.  Under the regulations, USCIS will look to see if the employer-employee relationship still exists even if placed at a third-party location.  USCIS has interpreted this term to be the “conventional master-servant relationship as understood by common-law agency doctrine.”  The common law test looks at the employer’s “right to control the manner and means by which the product is accomplished.”  USCIS has published a list of factors that it examines in determining the “right to control.”  Because not one factor is decisive, USCIS looks at the totality of the evidence presented to make it’s determination.

Statement #3:
I’m currently in my CAP-GAP period, I can still travel.  

FICTION. During the cap-gap period, the time a person’s OPT ends until October 1st, travel is not advised.  Please see our blog: Traveling While in the H-1B Cap-Gap Period for further explanation.

Statement #4:
My current H-1B has expired but I filed my extension, I can continuing working.  

FACT. Assuming valid H-1B status has been maintained and the extension has been timely filed, a person may continue working while the extension petition is being processed.  The regulations allow an automatic extension of stay and authorization to work for same employer for 240 days beyond expiration of the I-94 while the decision pending.

The answers above are provided only to provide a broad overview of H-1B facts.  For complete analysis of your H-1B situation, please contact our office today.

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