Our History with H-1b Visas

Nanthaveth & Associates is your employment immigration attorneys of choice in Houston and surrounding areas. Our lawyers provide expert legal help for all areas of immigration law, including focusing on business immigration and employment visas.

Attorneys assist with work visas, employer sponsored immigration, such as the H-1B employment visa. Attorneys will work with you through every aspect of the H-1B petition process, including understanding the H-1B requirements and filing an H-1B petition.

Employment Immigration

For many people, the easiest way to get a U.S. Immigration Visa or Green Card is through employment immigration or “work visa”.

The H-1B employment visa allows for a person to be an employee of a sponsoring employer to carry out duties that require “specialized knowledge.” That means that the duties of the job offered to the H-1B employee calls for someone with a higher education and/or specialized work experience.

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An H-1B visa is a non-immigrant visa in the United States. It makes it possible for United States employers to temporarily hire workers from other countries to perform specialty occupations.


There are a number of requirements you must meet for you to apply for an H-1B visa.

  1. You must have an employer/employee relationship with a petitioning United States employer. A credible employer who can hire, fire, supervise or otherwise control the beneficiary’s employment must petition for the visa.
  2. The job must be in an occupation which requires a degree or a specialty skill.
  3. You must be able to make evident that your education, skill or specialty is required to perform the job.
  4. Financial compensation for the position must be equal to or higher than the standard wage for the specific occupation in the geographic area of designated employment.
  5. There are only 85,000 H-1B visas available each year. If all 85,000 have been filled you will not receive one.
  6. You can not sponsor yourself as an employer and employee.

It is important that you consult with an attorney who is experienced in U.S. employment immigration law before filing petitions or applications with the government. Nanthaveth & Associates have experience in helping clients successfully navigate the H-1B visa and other business immigration processes.

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In these distressed economic times, employers are having to take radical steps to live. As unemployment rates continuously rise in the U.S., many H-1B nonimmigrant visa holders will likely find themselves without a job and hoping for answers.

Following is a general discussion of the options readily available to H-1B nonimmigrants who become casualties to the economic downturn.

The very first thing you should know as an H-1B nonimmigrant is that your employer is expected to pay your way home if you are terminated. That does not mean you can walk into the President’s office and demand the cost of a plane ticket home in dollars.

But if you are leaving the U.S., your employer is required to pay your way home– but only if you are leaving. Have them review the H-1B Petition and Labor Condition Application, which they signed and submitted, very meticulously, and they will see that they agreed to do this at the time of filing.

If your H-1B Petition was “cap subject,” meaning that you had to qualify for the approval through the lottery selection system when your original H-1B petition was filed, then you can transfer that H-1B Petition to another H-1B employer.

There are some limitations to transferability. First, the position being offered must qualify as an H-1B job. It must be professional in nature and require a specific Bachelor’s or higher degree for entry into the position.

You can reasonably assume, although this is not a certainty, that if you are being offered a similar position to the H-1B position you were in most recently, the position will likely be considered an H-1B job.

Second, you should file the H-1B transfer within 60 days of your last paycheck, preferably 30 days and ideally the regular paycheck and not the severance paycheck. Technically, an H-1B nonimmigrant is out of status the day he or she is terminated. A person who is out of status can not change or extend his or her nonimmigrant status. USCIS has an unwritten practice of approving extensions or changes of status to H-1B nonimmigrants that file within 60 days of the date of the last paycheck.

This could change unexpectedly, but it has historically been the practice. Look for a new job as soon as possible!

Third, there is some dialogue on the wires about filing to change status to F-1 student, B-2 visitor and the like to give a person more time to seek new H-1B employment.

The concept would be to then have the new employer file a new H-1B petition while the F-1 or B-2 application is pending.

There is a serious issue with this practice. Several years ago, the government stopped authorizing “bridging” status through a policy memorandum issued out of headquarters. “Bridging” is the practice of filing an extension of change of status and then while that extension or change is in waiting, filing another one.

For example, a B-2 nonimmigrant visitor comes to the U.S. and receives authorization to be in the U.S. for six months. Before the six-month period elapses, the person files for an extension of status for an added six months.

While that extension application is pending and after the initial six-month entry period has expired, the person files another application looking to change status to F-1 student. In the old days, the immigration service would have considered the change of status to F-1 a permissible filing because the extension request was pending.

This was considered “bridging” of status.

The immigration service has quit permitting bridging. So, the only way to make bridging work is to finish the bridge before crossing it. What I mean is, the interim status application, whether it is a change of status application to B-2 visitor or F-1 student, must be granted to ensure the particular person has a new status at the time the H-1B transfer is filed.

The issue is the immigration service frequently takes longer to adjudicate a change of status to B-2 visitor than the maximum period requested, meaning the person will still have no status when trying to file for a change back to H-1B.

Working through bridging is like playing with fire. It is complex and should not be handled without professional help.

Fourth, what options do you have if you worked for a government research institution, a U.S. university or other employer that is exempt from the H-1B quotas?

You have not taken a visa from the quotas, unless you did with a previous employer, and therefore will not have the opportunity to transfer into a position that is subject to the H-1B quotas.

Options are limited, but if you happen to be laid off before and close to April 1 of that year, you will have a good chance of obtaining a visa from the quota to start work October 1 of that same year for a cap subject employer.

Ultimately, what is one meant to do if no job is identified within the 60-day period from the termination of employment? Realize that as long as you do not leave the U.S. for over 1 year, you will always have the H-1B visa from the quotas.

As stated above, an H-1B nonimmigrant is out of status the day he or she is terminated. But a person is not unlawfully living in the U.S. until the government terminates the status (i.e. through removal proceedings or a change of status application denial) or the person’s I-94 status document expires.

Unlawful presence has consequences to a person’s ability to obtain a visa from the U.S. consulate. Being out of status by itself does not. When someone is illegally present in the U.S. for more than 180 days, that person cannot come back to the U.S. for 3 years.

The inadmissibility period increases from 3 years to 10 years if the person is unlawfully present in the U.S. for more than 1 year.

With those factors in mind, what happens if the I-94 status document is unexpired, the government has not terminated the I-94, and it has been more than 60 days from the last paycheck when you find a new employer.

The employer will file a new H-1B Petition without seeking a change or extension of status. You will take that approval to the U.S. consulate, attain a new visa, and reenter the U.S. to go back to work.

Or if you already have an H-1B visa in the passport, despite having a different employer, you may take the new petition approval, leave the U.S. and reenter with a new I-94 to return back to work.

If you are Canadian, you are H-1B visa exempt, so it will just be a matter of taking a trip out of the U.S. and reentering legally with your passport and the new petition.

However irritating and problematic it is to be laid off, being an H-1B compounds the anxiety. But as discussed above, there are options. So, keep up hope and happy new job hunting!

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