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H-1B1 status and change of employer

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Q: If I apply for a change of employer or an extension of stay, am I subjected to the cap?

A: No. Once you have been granted H-1B1 status, you are no longer subjected to the cap, even if you change employers or extend your status.

Q: When does the employer have to pay the $750 to $1,500 surcharge?

A: When an employer initially petitions for an H-1B1 worker, the employer must pay the $750 to $1,500, surcharge. In addition, the employer must also pay the $750 to $1,500 surcharge the first time the petition is extended.

Q: Is it permissible for the employee to pay the $750 to $1,500 surcharge?

A: No. Under no circumstances may the employee pay the $750 to $1,500 surcharge.

Q: What happens if the employee needs to extend status as a result of a trip abroad?

A: Sometimes, when an H-1B employee returns from a trip abroad, the CIS officer at the port of entry will give the employee an authorized stay that is less than the full duration of the petition. For example, a petition is valid for two additional years, but the CIS officer only gives a one year stay. In this case, the petitioner may apply for an extension of stay through the end of the petition without having to pay the $750 to $1,500 surcharge.

Q: Now that my employer has obtained an LCA for me, can this be used for immigration?

A: The acronym “LCA” refers to a labor condition attestation. This is a document that is filed in connection with an H-1B petition. It has nothing whatsoever to do with an alien labor certification. A labor certification is used to qualify someone as an employment based immigrant. A labor certification is something entirely different from an LCA. An LCA cannot be used for any purpose having to do with employment-based immigration.