For foreign professionals who wish to enter the U.S. to work under an H-1B visa, the screening process can be extensive. This is especially true for those who either choose to or must go through consular processing. Because this route involves a one-on-one H-1B visa interview with an immigration officer, it’s best to be prepared before you go in.
H-1B Process Overview
For those who are not aware of the process involved with obtaining an H-1B visa, here is a general outline of the steps:
- You must first find a U.S. employer who will sponsor you to fill a specialty position that requires your bachelor’s degree.
- Then your employer needs to obtain a Labor Condition Application from the Department of Labor.
- If you or your employer are subject to the annual cap, then your employer will need to submit a registration on your behalf during the month of March in the year that you would like to start working.
- The USCIS will conduct a random lottery to select the registrations that will go on to processing.
- If your registration is selected, then your employer will be able to file a petition starting April 1st of that year.
- If your petition is approved, then you can choose from two options to acquire your visa:
- Wait for your employment to start on October 1st. Your status will be automatically adjusted to H-1B as soon as you begin working for your sponsoring U.S. employer. This is ideal if you are already in the U.S. under a different nonimmigrant status.
- If you are not yet inside the U.S., then you will need to travel to a U.S. consulate or embassy in order to obtain a visa stamp and enter the country with H-1B status.
This last part can be both a difficult and sensitive process. This is because each consulate or embassy is different and may pose differing rules and regulations. While we will cover the basic things to expect during the consular H-1B visa interview, it is always advisable to work with an experienced immigration attorney who can better assess your options.
H-1B Change of Status vs Consular Processing
Our firm often gets asked the question: which is better, consular processing or change of status? The answer usually depends on your situation and whether or not you are inside the U.S. If you are overseas, then you do not have a choice and must go through consular processing.
Ideally, most H-1B applicants would want to change their status rather than go through consular processing. This is because the change of status happens automatically once you begin your employment, requiring no further action from either you or your employer. Consular processing subjects you to the rules and waiting periods of the particular consulate or embassy that you use, which usually includes an H-1B interview.
One main drawback to using consular processing is this: your visa could be denied regardless of whether or not your petition is approved. The immigration officer in charge of your interview process has the authority to deny your visa and also to suspend a decision on your case for an indefinite amount of time. This can sometimes result in having your I-129 approval expire before the consulate makes a decision.
However, if you are in the U.S. you can opt for consular processing if you would like to have greater control over the validation start date of your visa. Here is an example to illustrate. Julio is in the U.S. under TN status and has an approved H-1B petition. He wants to apply for a green card, but cannot do so under TN status. Therefore he opts for consular processing so that he can “activate” his H-1B status as soon as he is ready to apply for a green card.
Some may consider attempting to enter the U.S. through a different visa status (such as B-2 or J-1) so that they can simply apply for a change of status to get an H-1B visa. However, the B-2 only grants you a six-month stay, which is often not enough time to obtain an H-1B. The J-1 visa holder must comply with the directors of his or her sponsoring program, and so can easily encounter unnecessary complications. Your immigration attorney will be able to guide you in this decision.
H-1B Stamping Process
When your petition is approved, if you choose the consular processing route, you will need to go through H-1B stamping. This process includes a one-on-one interview with a consular officer, which we will cover further on in this article.
Here is a breakdown of the process:
- You will need to complete a DS-160 nonimmigrant visa online application form. Complete this form, pay the fee, and print out the confirmation page for later.
- Schedule the consular interview. This will need to be done at least two days before the interview date. You will also need to provide information about your biometrics (fingerprints, etc.)
- Attend the interview on the scheduled date. You will need to bring the required H-1B interview documents along with you, which we will cover later on.
H-1B Transfer Before Stamping
The H-1B visa is an extremely flexible and portable nonimmigrant option, allowing you to change employers and even have multiple employers simultaneously. However, if you decide to change employers (thereby changing petitioners), it is important to do it carefully and with the guidance of an immigration attorney.
Imagine a scenario where you have been working with Company A for your H-1B visa, but Company B provides a much better opportunity and offers to sponsor your visa. The H-1B allows you to switch employers at will, but choosing the right time to switch is crucial.
There are two stages in which you can change employers during the H-1B process: before and after stamping. Changing after stamping is as simple as having the new employer file a new I-129 petition on your behalf. If you have already been counted against the cap, then this new petition will not require a registration that is subjected to the lottery. However, if you entered the U.S. through a cap-exempt employer and you are changing to a cap-subject employer, this new petition will require a registration that will be entered into the lottery.
If you decide to transfer your H-1B status after selection in the lottery, but before the stamping process, you might be placing yourself at risk. Your initial petitioner could withdraw your petition, which would mean your new employer would need to enter a registration for you into the lottery, restricting you to H-1B lottery timelines and leaving your selection up to chance.
Ultimately, if you have the choice, the best method is to wait until after the stamping process is concluded and the H-1B visa interview is complete before transferring your status to a new employer, as this removes the risk of having to be re-entered into the lottery. However, each person’s situation is different and only your immigration attorney will have sufficient insight into your case to help you make an informed decision.
The H-1B Visa Interview Experience
Whether you choose it or it is required, consular processing will necessitate traveling to a specific U.S. consulate or embassy. For first-time H-1B applicants, this is usually the consulate that is closest to the city in which you maintain a foreign residence (which is required for the H-1B). You should visit the U.S. embassy website to find your consulate and schedule an interview time.
For example, if you maintain a permanent residence in Mumbai, then you would need to travel to the consulate in that city for your H-1B visa interview. For all subsequent applications, you can use any U.S. consulate or embassy (such as an embassy in Canada or Mexico).
When you arrive at the consulate, you will most likely be asked to wait for your number to be called depending on how busy that particular consulate is. Be sure to have all of your documents in an order that makes it easy for the officer to locate the items he or she needs.
Depending on the consulate you are using, you may only be permitted to bring your documents with you, which means that items such as cell phones may not be permitted. Check with the consulate to see what the rules are and if lockers are available for other items.
In the interview, it is important to be relaxed and professional when interacting with the officer. Try to answer all posed questions as quickly and accurately as possible, speaking clearly and enunciating each word all the while.
You should be well versed in the position that you will be filling. From your day to day tasks to your wages, the officer will likely question the specifics of your job in the U.S. It is important to remember that the purpose of the H-1B visa interview is to detect people who are attempting to enter the U.S. through fraudulent means. If your employment and qualifications are legitimate, then your H-1B interview experience should not be stressful.
What are the H-1B Interview Documents to Bring?
Here is a list of the general documents that are required by all U.S. consulates and embassies during H-1B interviews. There may also be required supplementary items that are not listed here. To learn what these are, work with your immigration lawyer or visit the consulate’s website.
- A valid passport that will not expire before the end of your visa validation period.
- A printed confirmation of your completed DS-160 online application form.
- The original letter you received confirming your interview appointment as well as a copy.
- Copy of both your approved I-129 petition and your I-797 notice of approval form.
- A receipt for the visa fees that should have been paid in advance.
- A passport-sized photo of you.
- Your original I-129 petition
- Degree and certification certificates
- Any expired passports
- Letters from your sponsoring employer and previous employers
- Pay stubs from the most recent employer
- Contact information for co-workers and managers at both your current job and past jobs.
- Your resume or curriculum vitae (CV)
Sample Interview Questions
Here is a list of some of the questions that you may be asked in your H-1B visa interview. Please be aware that this is not a comprehensive list and the immigration officer may ask you questions that are not included.
- Have you ever visited the U.S. in the past?
- Have you ever held another visa status in the U.S.? If so, which one, when, and for how long?
- Are you married? If so, then how long have you been married?
- Would your spouse or dependent children live with you in the U.S.?
- What are your plans after your H-1B validity period ends?
- Have you ever attended a university in the U.S.?
Your U.S. Sponsoring Employer
- What kind of business does your sponsoring employer do?
- What tasks and duties will you be expected to perform during your stay?
- What skills do you possess that make you an asset to your sponsoring employer?
- How will you be compensated by your sponsoring employer/ what will be your salary?
- When was your sponsoring employer’s business founded?
- Who is the CEO of the company/entity?
- How many people work for your sponsoring employer?
- How did you first come into contact with your sponsoring employer?
- What was the interviewing process like?
- Are you sure that the company/entity you will be working for is a legitimate organization?
- Where is your sponsoring employer located?
Your Educational Background and Experience
- Are you currently studying?
- When and where did you obtain your degree?
- What kind of degree have you completed?
- Have you pursued higher education than a bachelor’s? If so, what topic did you use for your thesis?
- Do you have plans to continue your education in the U.S.?
- How long have you worked in this industry/field?
- What related jobs have you held in this industry/field?
- Why have you chosen to work in the U.S.?
- Have you ever lived in any country other than your home country?
- Do you have a plan to support yourself before you receive your first paycheck?
- Do you have family members currently living in the U.S.?
- When your H-1B validation period ends, what is your plan?
- When do you plan to return to your home country?
Your immigration attorney can help you determine what the appropriate answers would be for your specific situation to ensure that the officer does not have any reason to deny your visa.
H-1B Interview Tips
Here are some things to keep in mind when preparing for and going through your interview:
- Honesty is the best policy. Being caught in a lie will not only result in a denial of your H-1B visa, but it will also result in a long-term bar from re-entry into the U.S. under any visa or green card. If you are not sure of the answer to a question, it is far better to say that you don’t know rather than fabricate information.
- Dress professionally. Immigration officers take everything into account when evaluating candidates for the H-1B visa. Dressing appropriately will go a long way toward helping your case. Avoid wearing shorts, open-toed shoes, revealing clothing, and shirts with large brands or words on them.
- Speak clearly and confidently. An interpreter can accompany you to the interview if English is not a strong language for you.
- Keep your answers short. Your interview will not last long, so avoid long-winded explanations or anecdotes.
- Arrive at your interview an hour and a half early. Planning for this will help you compensate for any delays you might encounter on the way and help ensure that you are not late for your interview. Being late will not necessarily cause your H-1B to be denied, but it will likely mean that you will have to reschedule your interview.
- Bring your required documents in a single professional folder or binder rather than having them loosely staples or paper clipped.
When all is said and done, the H-1B interview is designed to identify and root out fraudulent attempts to enter the U.S. As long as your case is legitimate and you remain honest with your answers, you should have little difficulty with your interview process. However, don’t let that preclude you from seeking the advice of an immigration attorney. The interview process is still extremely important and failure can mean significant delays in your H-1B processing.
How Our Immigration Attorneys Can Help
Attempting to navigate immigration law without an expert can result in disastrous consequences that can cost you both time and money. By retaining an immigration attorney, you can take the steps necessary to avoid costly delays.
Our experienced H-1B lawyers will assess your immigration case and help you decide which processing route would be best for your situation. If you decide to use consular processing, our attorneys will guide you through the H-1B visa interview process step by step in order to ensure that you have the best possible chance for approval.
To contact our office and speak with one of our immigration lawyers about your H-1B case, feel free to fill out this contact form to schedule your consultation today.