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Do I Need An H-1B Visa? Information on H-1B Travel

By Roberta Freedman / May 31, 2012

The H-1B is a frequently utilized temporary work visa for professional positions. For more information on the H-1B visa, see the Clark Hill website . Individuals who hold H-1B status in the U.S. and wish to travel internationally frequently ask whether or not they need to apply for an H-1B visa or "stamping" at a U.S. consulate prior to their return to the U.S. The H-1B visa or "stamping" is the sticker that is placed inside a foreign nationals passport by a U.S. consulate outside of the U.S. and allows for entry into the U.S. The visa or "stamping" is different from the I-94 card that is issued at the time a foreign national enters the U.S. and governs how long that person can stay in the U.S. and what status they will hold (i.e. H-1B). An I-94 card can be extended while a person is in the U.S. through an application made directly to USCIS and the I-94 card extension will be granted on a Form I-797 with a new I-94 card on the bottom of the form.

In general, individuals who hold H-1B status require an H-1B visa or "stamping" to make an entry into the U.S., unless they are Canadian citizens and exempt from visa stamping. However, if an H-1B employee has transferred employers, has a new I-797 H-1B approval from the current employer, and has an H-1B visa obtained with a prior employer that has not yet expired, the H-1B worker can use their existing H-1B visa to enter the U.S. without applying for a new visa at a U.S. consulate abroad, by using their existing visa and their H-1B approval notice from their new employer. This provision is specifically permitted by the Department of State's Foreign Affairs Manual at 9 FAM 41.53 N8.4-3, Validity of H-1B When There is a Change of Employer, which provides the following instructions:

a. After changing H-1B employers in accordance with DHS procedures for making such a change, an H-1B visa holder may continue to use his or her original H-1B visa for entry into the United States. Upon applying for entry, the visa holder must present the new Form I-797, Notice of Action, evidencing the approval of the change of employer in addition to the visa.

Furthermore, H-1B employees also can travel while their current employer's H-1B petition remains pending, if the prior H-1B visa remains valid. This is specifically permitted by the Department of State's Foreign Affairs Manual, 9 FAM 41.53 N8.4-2, H-1B Aliens May Travel Abroad While Change of Employer Pending, which provides the following instructions:

H-1B aliens traveling abroad during the period when their new employment petition is pending may use their old petition and visa for return to the United States provided the applicant:

(1) Is otherwise admissible;

(2) Has a valid passport and visa (whether new or the original visa with the prior employer's name);

(3) Has the prior Form I-94, Arrival and Departure Record, a Form I-797, Notice of Action, or a copy of, showing the original petition's validity dates; and

(4) Has a dated filing receipt or other evidence that a new petition was filed in a timely fashion.

New H-1Bs Still Available - But Not For Long

On May 25, 2012, USCIS announced that it received approximately 48,400 H-1B petitions toward the 65,000 available per fiscal year, under the general H-1B cap. In addition, USCIS received 17,500 petitions toward the 20,000 H-1B Master's Cap. USCIS continues to accept petitions toward the general cap and the Master's cap, but we believe that new H-1Bs could be gone before the end of June. The H-1B is a frequently utilized temporary work visa for professional positions. For more information on the H-1B visa, see the Clark Hill website .

New Location for Clark Hill's Washington, D.C. Office

Clark Hill is excited to announce that as of June 1, 2012, the Clark Hill Washington, D.C., office will have a new office location. The address for the new Clark Hill Washington, D.C., office is 601 Pennsylvania Avenue NW, North Building, Suite 1000, Washington, DC 20004.

Visa Priority Dates - June Visa Bulletin and Retrogression

The June Visa Bulletin has been posted. Visas for employment based second preference cases for individuals born in India and China are unavailable for the remainder of the government fiscal year ending September 30, 2012. The June Visa Bulletin explains this unavailability stating:

Despite the retrogression of the China and India Employment Second preference cut-off date to Aug. 15, 2007, demand for numbers by applicants with priority dates earlier than that date remained excessive. Such demand is primarily based on cases which had originally been filed with the U.S. Citizenship and Immigration Services (USCIS) for adjustment of status in the Employment Third preference category, and are now eligible to be upgraded to Employment Second preference status. The potential amount of such "upgrade" demand is not currently being reported, but it was evident that the continued availability of Employment Second preference numbers for countries other than China and India was being jeopardized. Therefore, it was necessary to make the China and India Employment Second preference category "Unavailable" in early April and it will remain so for the remainder of FY-2012.

Numbers will once again be available for China and India Employment Second preference cases beginning Oct. 1, 2012, under the FY-2013 annual numerical limitations. Every effort will be made to return the China and India Employment Second preference cut-off date to the May 1, 20 10 , date which had been reached in April 2012. Readers should be advised that it is impossible to accurately estimate how long that may take but current indications are that it would definitely not occur before spring 2013.

Persons who have an I-485 Adjustment of Status pending at the time the visas became unavailable will continue to have their Adjustment of Status applications pending and will continue to be eligible for Employment Authorization Documents (EADs) and Advance Parole extensions. For a summary of priority dates, retrogression and how these dates impact U.S. green card processing, please visit the Clark Hill website

U.S. Immigration and Customs Enforcement and Department of Justice Updates

Below are summaries of recent efforts by the U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice (DOJ) as they enforce laws related to employment of persons not authorized to work in the U.S. While there were many actions that took place recently, below are a few of the highlights.

Houston, Texas, Company Admits to Hiring Unauthorized Workers

On May 18, 2012, ICE announced that following an ICE investigation, a tree services company in Houston, Texas agreed to pay $2 million as forfeited funds to the Department of Homeland Security representing the revenue derived from the employment of unauthorized workers. The company also significantly revised its immigration compliance program to include the use of E-verify for new hires, implement new policies concerning the proper completion, retention and auditing of I-9s and for responding to SSA No Match letters, and the company terminated hundreds of undocumented workers. In this case, ICE's investigation revealed that the company had falsely attested on the Form I-9 that the documents presented appeared genuine on their face. Furthermore, the company had received and ignored "no-match letters" from Social Security Administration which indicated employee names and Social Security numbers did not match SSA records.

Washington Herb Grower Fined for Unauthorized Workers

On May 1, 2012, ICE announced that a Washington-based fresh-herb supplier was sentenced Tuesday to $1 million in criminal fines and probation for hiring unauthorized workers following an ICE investigation and I-9 audit. The corporation pled guilty to felony offences and was sentenced to a fine of $1 million and five years' probation for harboring, concealing, shielding unauthorized workers, and encouraging and inducing unauthorized workers to reside in the U.S. Three executives of the company each pled guilty to a misdemeanor offence and were sentenced to one year probation for aiding and abetting a pattern or practice of employing unauthorized workers.