1. Temporary
duration
The
H-1B status is temporary in nature and may be approved initially for a period of
up to three years. It may, however, be renewed for up to another three years.
Thus, the duration of an H-1B worker's stay in the United States can reach a
maximum of 6 years.
After six years in H-1B status, the individual must depart
the U.S. for at least one year before qualifying again for H-1B status.
2. H-1B
quota
There
is an annual numerical limit/cap on the number of H-1B visas issued. The
following H-1B applications are not subject to the cap:
- Applications
for extensions of H-1B status;
- H-1B
petitions for concurrent employment where the alien worker is presently in
H-1B status;
- H-1B
petitions to change employers;
- H-1B
applications sponsored by Institutes of higher education (or a related or
affiliated nonprofit entity), government or nonprofit research
organizations; and
- H-1B
applications for physicians who received J waivers under a Conrad State 20
Program.
The
Bureau of Citizenship and Immigration Services (USCIS) will not count someone towards the H-1B cap if they have been in H-1B
status within the previous six-year time period, unless the individual is
applying for a new six-year period of stay at the time the petition is filed. Also,
any H-1B petition revoked for fraud or willful misrepresentation shall be added
back to the cap in the year the petition was revoked, regardless of when the
visa was actually issued.
The Omnibus Appropriations Act for FY
2005 contains provisions
affecting the H-1B nonimmigrant visa category and quota.
3. Ineligible
to work prior to approval
Unless
otherwise authorized to work, employment may not begin until the USCIS has
approved the petition. If the alien already holds an H-1B, the alien may begin
work for a new employer as soon as the new employer files an H-1B petition on
behalf of the employee with the USCIS.
4.
Other
Limitations
- Work
authorization for H-1B foreign specialty workers is employer-specific:
limited to employment with the approved employer/petitioner.
- A
change of employer requires a new H-1B petition: new employment (any
employment other than the originally approved employment) cannot begin until
a petition for change of employment (Form I-129) is approved by the USCIS.
- Multiple
employers require multiple H-1B petitions
- Spouse
& children not allowed to work:
Dependents
(spouses and unmarried children under 21 years of age) of H-1B workers are
entitled to H-4 status with the same restrictions as the principal. The
spouse and children of the H-1B visa holder are not permitted to work, unless
otherwise authorized by the USCIS.
- No
automatic conversion to permanent residence status:
The
H-1B visa does not automatically convert to a lawful permanent residence status.
H-1B status is independent of the green card application.
- Employment
at will:
Either
the employer or the alien may terminate employment at any time for any or no
reason at all. As soon as employment is terminated, your visa is technically not
valid. However, the USCIS allows a grace period of ten days from the date that you
are fired or laid off. In other words, you will be able to legally remain in the
U.S. for ten days and must file a change of status during this time.
- Cost
of early dismissal:
The
employer must agree to pay the alien the reasonable cost of transportation to
return to his/her home country if the employer terminates employment prior to
the end of the authorized employment period. Generally, the employer does not
pay transportation costs since the alien usually desires to remain within the
U.S. and adjusts his/her status.
5.
H-1B
holder extending the H-1B status beyond the six-year H-1b status limit
In
most cases, an H-1B holder may not extend his status beyond the six-year period,
unless he/she qualifies under one of the following three (3) exemptions:
- An
H-1B holder that is the beneficiary of an approved EB-1, EB-2 or EB-3 visa
petition and is waiting for the new quota to apply for an adjustment of
status, may apply to the USCIS for extensions of H-1B status beyond the
six-year period until his adjustment of status application has been
adjudicated. However, USCIS has the discretion to approve or deny such
applications and as such is not guaranteed.
- A
beneficiary of EB-1 and NIW, if the immigration is filed over 365 days,
either pending or approved, may file the extension of his H-1B beyond the
six-year limit.
- A
beneficiary of BE-3 and EB-2 (other than a national interest waiver), if the
labor certification was approved and filed more than 365 days, and the
immigration petition is filed (either pending or approved), may apply to
extend his H-1B status beyond the six-year limit.
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