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H-1B Frequently Asked Questions

Please be advised that the information below is not legal advice, nor should be constructed as legal advice in any manner. An immigration attorney or your human resources or immigration office at your employer should be consulted if you have immigration questions or concerns.

New University Employees

  1. Is The University of Toledo (UT) subject to the H-1B numeral limitation of 65,000 (H-1B 'cap')?
     
  2. I was recently hired by UT, and my hiring department has agreed to sponsor me for an H-1B visa. I am currently employed in the U.S. with another employer and on the H-1B visa. Does UT's H-1B need to be approved before I commence employment there?
     
  3. I was recently hired by UT, and my hiring department has agreed to sponsor me for an H-1B visa. I am currently in the U.S. on a visa other than an H-1B (e.g. B-2, H-4, F-1, J-1, L-1, TN). Does UT's H-1B need to be approved before I commence employment there?
     
  4. I was recently hired by UT, and my hiring department has agreed to sponsor me for an H-1B visa. However, I previously held J-1 (or J-2 dependent) status, and am subject to the two-year home residency rule (INA §212(e)). May I change status to the H-1B with UT?

Current University Employees

  1. I am a current UT employee, but on a non-H-1B work visa (i.e. OPT card). My hiring department is now willing to sponsor me for an H-1B visa. Does the H-1B need to be approved before I commence employment on the H-1B?

  2. I am a current UT employee, working on an approved H-1B visa. My hiring department has agreed to extend the H-1B. Must the subsequent H-1B be approved before the existing H-1B expires?

  3. I am a current UT employee, working on an approved H-1B visa. I recently entered the U.S., and the CBP officer at the port-of-entry handwrote an end date on my I-94 card that corresponds to my current passport's expiration date. However, the I-94 card and passport end dates are much sooner than my approved H-1B expiration date. Which date do I need to follow?

  4. What does H-1B 'recapture' mean?

  5. Does my approved H-1B with UT allow me to accept employment elsewhere in the U.S., or accept concurrent employment with UT?

New Employee Question 1:

No, UT is not subject to the annual H-1B 'cap', based on being an institution of higher education. As a result, UT may file new H-1B visas year-round.


New Employee Question 2:

UT's H-1B need only be filed and pending, not approved, prior to commencing employment at UT. The conditions that must be met in order to take advantage of this 'portability' provision can be found under Pub. L. 106-313 American Competitiveness in the Twenty-first Century Act of 2000 (§ 105 of AC 21).

However, if you plan to travel abroad while employed by UT on the H-1B, the H-1B petition (I-129) must be approved in order to re-enter the U.S., even if you have an unexpired visa with multiple entries in your foreign passport. To accelerate the H-1B petition, Premium Processing ($1,225) may have to be filed in order to have the H-1B adjudicated in 15 days. (Normal H-1B processing can take several months).


New Employee Question 3:

When an employer is filing a change-of-status from a non-H-1B visa to an H-1B visa, the H-1B must be filed and approved before the H-1B employment begins. The requirement for approval is unlike the porting of an H-1B from Employer A to Employer B, wherein the H-1B need only be filed before commencing employment at Employer B.


New Employee Question 4:

No, you may not change status to H-1B. The J-1 (or J-2) two-year home residency rule must either be satisfied by returning to your home country for two years, or be waived by the U.S.C.I.S. Fore more information on obtaining a waiver, visit the following website: Dept. of State.


Current Employee Question 1:

When an employer is filing a change-of-status from a non H-1B visa to an H-1B visa, the H-1B must be filed and approved before the employee may commence employment on the H-1B visa. This applies to both new employees and current employees. As a result, it is very important that the current employee and hiring department contact OISSS well in advance of the non H-1B work authorization expiration date, as normal H-1B processing can take several months.


Current Employee Question 2:

No, the subsequent (or newly-extended) H-1B need only be filed before the existing H-1B expires. So long as 1) the USCIS receives the Form I-129 petition to extend the employee’s status before the existing H-1B expiration, 2) the employee has not otherwise violated the terms of their status, and 3) the employee meets the basic H-1B eligibility requirements, then the employee may be lawfully employed with the same employer (UT) for up to 240 calendar days starting from the prior H-1B expiration date, or until USCIS makes a decision on the application, whichever comes first. If the H-1B is denied, or the 240 day mark arrives and there is no decision, then employment must cease immediately, and in the event of a denial, the employee would have to depart the U.S. immediately. 8 CFR 274(a)(12)(b)(20).  

 Note: The I-129 petition for both new and extended H-1B visas can be filed at most 180 days (six months) prior to the effective start date of the H-1B employment. For H-1B extensions, it is recommended the I-129 be filed at least 30-45 days before the expiration date of the existing H-1B, so that an original USCIS Receipt Notice can be obtained in advance of the expiration date, in case the Receipt Notice is needed for other important matters (e.g. renewing a driver’s license).


Current Employee Question 3:

The I-94 card end date is the controlling end date, as it relates to both your presence in the U.S. and employment at UT. As a result, you must immediately have your passport renewed, and you must contact OISSS to make arrangements to have the I-129/H-1B extension filed before the I-94 card end date.

It is for the above reason that your foreign passport must always be timely renewed as far in advance as possible, and prior to your next U.S. entry. Otherwise, the result could be that UT’s H-1B is ‘short-ended’ based on both the passport expiration date, and the hand-written end date of the CBP officer on the I-94 card.


Current Employee Question 4:

In general, the H-1B is valid up to six (6) years, and at most in two separate three-year increments. During that time, a nonimmigrant may work for more than one employer on H-1B status.

However, the USCIS has clarified that H-1B time will only accrue when the employee on U.S. soil. Therefore, time spent outside the U.S. for vacation, visiting family, or attending a professional conference, will NOT be counted towards the six year H-1B ‘clock’. Further, if your initial H-1B entry was delayed due to consulate processing, and you enter the U.S. after the H-1B approval date, that time spent outside the U.S. will not count towards H-1B time.

For this reason, it is important that an H-1B nonimmigrant, when traveling abroad for any reason while in H-1B status, retain evidence of both U.S. departure and entry. Examples of such evidence would be, but is not limited to, stamps on passport pages, copies of prior I-94 cards, U.S. visas within foreign passports, and airline itineraries.

For more information, please read the October 21, 2005, USCIS Memorandum.


Current Employee Question 5:

No it does not. The H-1B that UT received approval of on your behalf is limited to the applicable Offer Letter or Employment Contract. This means that you cannot accept concurrent employment with UT, nor any other U.S. employer, unless a concurrent H-1B or other visa is filed.

Last Updated: 6/26/15