1.
Multiple Year Duration
The H-1B visa allows specialty occupation workers to enter
the United States, and work in a professional capacity for a maximum period of
six years. The
H-1B status is initially issued for a maximum period of three years, and may be
renewed for an additional period of three years. Generally speaking, the maximum
duration of stay permitted in the United States for an H-1B holder is a
cumulative six years.
In theory, the maximum duration of the H-1B visa is six years, or ten years for exceptional Defense Department
project-related work. H-1B holders who want to continue to work in the U.S. after six
years must remain outside of the U.S. for one year before reapplying for another H-1B visa.
There are generally two exceptions to the six year duration of the H-1B visa:
1) If a
H-1B visa holder has submitted an I-140 immigrant petition or a Labor Certification prior to his 5th year
anniversary of having the H-1B visa ( its priority date is at least 365 days),
and
the I-485 application is still
pending, the alien is entitled to renew the H-1B status in 1 year increments, until a
decision has been rendered on his or her application for the permanent residence.
2) If the
H-1B visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of
the Green Card process (Form I-485 application), due to his priority date not being current,
the alien worker may be entitled to a 3 year extension of the H-1B visa. This exception originated with the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21).
2.
The Dual
Intent and Opportunity to Petition for U.S. Permanent Residence (Green
Card)
An H-1B visa holder may petition for Permanent Residency
(Green Card), because of the
"dual intent" nature of the H-1B visa. An H-1B holder may enter and exit the U.S. at any time, even after a Permanent Residency petition has been filed.
U.S. immigration
laws and USCIS (Bureau of
Citizenship and Immigration Services) regulations allow the H-1B holder to have "dual intent"
with respect to his or her intent to immigrate to the United States. Therefore,
an individual seeking the temporary right to work in the U.S. with an H-1B visa
may also petition for permanent U.S. residence in the future. One does not
preclude the other. This
means that H-1B foreign specialty workers are not required to maintain foreign
residence and may seek permanent residence in the U.S.
Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent,
meaning an H-1B holder can have legal immigration intent to apply for and obtain the
U.S. Green Card, while still being a holder of
the H-1B visa.
In the past, the employment-based Green
Card process used to take only a few years, less than the duration of
the H-1B visa itself. However, in recent times, the legal employment-based immigration process has backlogged and retrogressed to the extent
that it now takes many years for skilled professional applicants from certain countries (like India and China) to
obtain their Green Cards. Since the duration of the H-1B visa has not changed, this has meant a lot more H-1B visa
holders have to renew their visas in 1 year or 3 year increments, to continue to be in legal status while their
Green Card application is in process.
3.
Ability
to Change Employers
An H-1B visa holder may change the status to any other nonimmigrant status if he or her is eligible for. An H-1B visa holder may transfer employers easily under the H-1B Portability Act. The alien
employee may begin working for the new employer as soon as the new H-1B
transfer petition is submitted to USCIS.
The
employer
and location of employment may be changed during the six-year H-1B status
duration, as soon as the new employer files a new H-1B petition on behalf of the
alien individual, who is in lawful H-1B status at the time of filing, and has not engaged
in any unauthorized employment since his or her last lawful admission.
An
alien employee may change employers, and it will not affect his adjustment of status
provided he or she has filed an I-485 for at least 180 days, and continues to work
in the same or similar position for the new employer.
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