Frequently Asked Questions Employers Have About the DOS's Role in the H-1B Process

The Department of State runs U.S. Consulates, where H-1B candidates whose employers’ petitions are approved by USCIS may apply for H-1B visas to be stamped in their passports. In most cases, if USCIS approves H-1B classification, they will also approve the change to H-1B status or extension of H-1B status. A visa is not necessary in those situations. However, if USCIS denies the change of status to H-1B or extension of H-1B status, or, if the foreign worker travels abroad after the H-1B approval, the foreign worker needs to apply for the H-1B visa to be stamped in his or her passport to be able to return to the United States. This application is made by the foreign worker before a U.S. consulate either in the worker’s home country or a third country, if allowed by the U.S. consulate in that country. The worker needs to complete an online application and schedule an interview with the consulate. At the interview, the worker needs to bring specific documentation to present to the officer.

Employers should know that even if USCIS approves an H-1B petition for a specific worker that does not guarantee the U.S. consulate will issue an H-1B visa to that worker. USCIS and DOS are independent decision makers. U.S. Consulates may have specific additional requirements for the applicants. It is not advisable to send an employee to the consulate without an employer consular package, as that increases the risk of delays and denials. This, in turn, means the worker will not be able to return to work as planned.

Danielle Atchison

Business Immigration Attorney

MDIVANI CORPORATE IMMIGRATION LAW FIRM

uslegalimmigration.com/our-lawyers/danielle-atchison/

NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to our situation

The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.