FAQ: Cap-subject H-1Bs with the start date of October 1, 2013 or later with Consular processing

1. What is the earliest start date of a Cap-subject H-1B?

Answer(A): The earliest start date for Cap-subject H-1B for fiscal year 2014 will be October 1, 2013 but the employment could start later. The U.S. federal government’s fiscal year begins on 1 October of the previous calendar year and ends on 30 September of the year with which it is numbered.

Steps you need to take if your H-1B is approved and you are outside the U.S.?

a. How soon one can apply for an H-1B visa?

A: After USCIS approves the Petition for a Nonimmigrant Worker (Form I-129), you can apply for an H-1B visa 90 days in advance at a U.S. Consulate.

Since it is September already, now one would be able to apply for the H-1B visa at the appropriate U.S. Consulate if an H-1B petition was approved for him.

Wait times for visa interview appointments vary by location, season, and visa category, so you should apply for your visa early. (Review the interview wait time for the location where you will apply)

b. Which U.S. Consulate should I apply for the visa ?

A: When the H-1B petition was filed on your behalf you made a choice about the U.S. Consulate you will go to for your visa. Therefore you would have to apply for the visa at that Consulate and schedule for a visa interview there.

The Department of State has developed the Petition Information Management Service (PIMS) to provide a method for consular officers to rapidly confirm that individuals requesting an H, L, O, P, Q, or R nonimmigrant visa were, in fact, the beneficiary of a corresponding petition approved by USCIS. PIMS allows consular officers to access and confirm USCIS petition approval data and supporting documents online; thereby speeding up the issuance of nonimmigrant visas while reducing costs and heightening security.

Prior to arriving at the consulate, call ahead to schedule an appointment and inquire as to whether the case information is located in PIMS. U.S. Consulate contacts are available at http://www.usembassy.gov/.

However you would check each Consulate about scheduling the visa appointment, for example for India, one can schedule interview online at http://cdn.ustraveldocs.com/in/ or may call their number.

In case you would not be able to schedule a visa interview at your pre-selected Consulate, then you can schedule an appointment at any U.S. Consulate since the information in PIMS will be available electronically to all consulates and embassies.

c. What are the steps for applying for an H-1B visa?

Following are some of the steps you would need to take:

Complete The Online Visa Application, Form DS-160
You must: 1) complete the online visa application and 2) print the application form confirmation page to bring to your interview.

Photo
You will upload your photo while completing the online Form DS-160. Your photo must be in the format explained in the Photograph Requirements.

Schedule an Interview
You would need to schedule an appointment for your visa interview. You will need to provide the receipt number that is printed on your approved Petition for a Nonimmigrant Worker, Form I-129 to schedule an interview.

Prepare for your Interview
Fees – Pay the non-refundable visa application fee. (See, Current visa fees for Department of State government services select Fees)

When your visa is approved, you may also pay a visa issuance reciprocity fee, if applicable to your nationality.

Gather Required Documentation

Gather and prepare the following required documents before your visa interview:

  • Passport valid for travel to the U. S. – Your passport must be valid for at least six months beyond your period of stay in the U. S. (unless exempt by country-specific agreements). If more than one person is included in your passport, each person who needs a visa must submit a separate application.
  • Nonimmigrant Visa Application, Form DS-160 confirmation page
  • Application fee payment receipt, if you are required to pay before your interview
  • Photo – You will upload your photo while completing the online Form DS-160. If the photo upload fails, you must bring one printed photo in the format explained in the Photograph Requirements.
  • Receipt Number/Notice for your approved H-1B petition.

Attend your Visa Interview

During your visa interview, a consular officer will determine whether you are qualified to receive a visa.

After your visa interview, your application may require further administrative processing. You will be informed by the consular officer if further processing is necessary for your application.

When the visa is approved, you may pay a visa issuance fee if applicable to your nationality, and will be informed how your passport with visa will be returned to you. Review the visa processing time, to learn how soon your passport with visa will generally be ready for pick-up or delivery by the courier.

Spouse and Children

Your spouse, and unmarried and minor children may also apply for the derivative visa category to accompany or join you. U.S. embassies and consulates will adjudicate visa applications that are based on a same-sex marriage in the same way that they will adjudicate applications for opposite gender spouses.

Please reference the specific guidance on the visa category for which you are applying for more details on documentation required for derivative spouses. You must be able to show that you will be able to financially support your family in the United States.

Visa Denial and Ineligibility

Review Visa Denials for detailed information about visa ineligibilities and denials and contact your employer about the issues.

I was refused a visa, may I reapply?

Yes, but first contact your employer.

Misrepresentation or Fraud

Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the United States.

2. What you need to know regarding the immigration processing at the U.S. – Port of Entry?

A. Once your visa is approved you would be able to travel to the U.S. 10 days prior to your H-1B employment so long as an H-1B visa was approved with the earlier start date than your H-1B start date at the discretion of Consular Officer.

At the port of entry, a Customs and Border Protection (CBP) officer will stamp your passport. This admission stamp will show the date of admission, class of admission, and the date that the traveler’s class of admission expires. You will also receive on arrival a flyer alerting you to go to www.CBP.gov/I94 to check your admission record information. At this time make sure that your classification (either H-1B or H-4) and the end-date is correct.

Once your enter the U.S., you should print out I-94 entry records through the CBP website in multiple copies. You would need this I-94 copy for driver’s license, social security card, and for I-9 verification. For more info, please visit the website.

3. How late can I start my H-1B employment?

A: If the employee is simply changing from some other status to H-1B employment with the company while already present in the U.S., employment must begin within 60 days of approval of the H-1B.

Before you start your job you would need a U.S. Social Security Number, otherwise you would have to apply for a Social Security Number and it might take two weeks or more to receive the actual Social Security Card.more to receive the actual Social Security Card.

4. What do you need to do on first day of employment?

A. Your employer will provide you a copy of the approved Labor Condition Application (LCA) if they have not done so already.

In addition to giving you the LCA copy, your employer will give you a Form I-9, Employment Eligibility Verification, which is used for verifying the identity and employment authorization of individuals hired for employment in the United States. On the form, you will complete first part, Section 1, and attest to your employment authorization. You must present your employer with acceptable documents evidencing identity and employment authorization.

5. How to maintain H-1B status?

A: You will remain in H-IB status for the duration of the H-IB period granted on your I-94, or on the approval notice if a change of status was granted, provided that you at all times during this period are “performing services for an authorized H-lB employer”.

6. When does an amended petition have to be filed?

A. Any changes in job locations, job title or substantial changes in job duties and/or responsibilities and reduction of salary and benefits from prior H-1B will require a LCA and H-1B petition to amend the employment conditions.

7. What are the consequences of out of visa status?

A: You will be considered “out of H-1B status” if you stop performing services for your employer, regardless of the period noted in the H-1B approval notice or I-94.

If you are considered out of status, so will all of your derivative family members, regardless of the expiration date of their H-4 approval notices or I-94s.

Once on “out of status” you should not remain “out of status” in the United States for more than 10 days grace period to leave the U.S. You will be subjected to the unlawful presence rule if you remain out of status for more than 180 days and will be excluded from the United States for a period of three years or more.