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

USCIS’s role in the H-1B process is adjudicating the petition. USCIS accepts the petition submitted by the employer, issues a receipt, if applicable (and way too often), issues a Request for Evidence or Notice of Intent to deny in some cases, reviews evidence submitted, and makes a decision on the petition. USCIS adjudicates whether to grant the requested H-1B classification and whether to change the worker’s status from another non-immigrant status (such as student F-1), extend the worker’s H-1B status, or notify a U.S. consulate abroad if the petition is approved. USCIS issues new I-94s to workers for whom they grant change or extension of status.

Employers normally ask for two decisions from USCIS. First, to approve the H-1B classification. Second, if the worker is in the United States, to change the immigration status to H-1B or extend the worker’s H-1B status. Before the employer proceeds with filing the H-1B petition, it is important to determine whether the foreign worker is in valid nonimmigrant status and is eligible for change or extension of status if USCIS approves the employer’s H-1B petition. This is crucial because USCIS may approve the H-1B classification and deny change or extension of status. This may leave the employer with an empty victory since they may not employ the worker without status. The worker may have an option to consular process, only if the worker is not barred from returning to the United States.

This is how the bars work: If the worker has been out of status for at least 6 months and leaves the U.S., the worker is not eligible to come back for three years. If the worker has been out of status for a least a year, the worker is barred for 10 years. Determining whether the bar applies ahead of time helps employers to avoid pursuing petitions that will end in bars and inability to employ the worker, despite H-1B classification approval.

Leyla McMullen

Business Immigration Attorney

MDIVANI CORPORATE IMMIGRATION LAW FIRM

uslegalimmigration.com/our-lawyers/leyla-mcmullen/

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.