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H-1B Visa

The H-1B visa is a non-immigrant visa granted pursuant to section 101(a)(15)(H) of the Immigration and Nationality Act. H-1B Visas allow U.S. employers to employ foreign workers temporarily in specialized occupations. If a foreign worker holding H-1B status resigns or is dismissed by the sponsoring employer, the H-1B visa holder must either leave the United States, apply for and be granted a change of status to another non-immigrant status, or find another employer (subject to application for adjustment of status and/or change of visa).

H-1B regulations define a "specialty occupation" as requiring theoretical and practical application of highly specialized knowledge in a field of human endeavor including but not limited to architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine, education, law, accounting, business specialties, theology, and the arts. Furthermore, in order to obtain an H-1B visa the applicant must have attained a bachelor’s degree or its equivalent as a minimum (with the exception of fashion models). Additionally, the foreign worker must possess at least a bachelor’s degree or its equivalent and must possess any license(s) required by the state to perform the work. H-1B work-authorization is limited to employment by the sponsoring employer.

Duration of Stay

The duration of stay pursuant to an H-1B visa is three years. However, the duration can be extended to six years. An exception to maximum length of stay applies in certain circumstances. An H-1B visa may be extended for one year if a labor certification application has been filed and is pending for at least 365 days. Additionally, an H-1B visa may be extended for three years if an I-140 Immigrant Petition has been approved.

In spite of the limit on length of stay, no requirement exists that the individual may remain for any period in the job for which the visa was originally issued. This is referred to as H1B portability or transfer. However, the new employer must sponsor another H1B visa. H1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.

The maximum duration of the H-1B visa is six years (ten years for exceptional Defense Department project-related work). H-1B holders wishing to continue working in the U.S. after six years, must remain outside of the United States for one year before reapplying for another H-1B visa if they have not obtained permanent residency status.

Generally there are two exceptions to the six year duration of the H-1B visa:

If an H-1B visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one-year or three-year increments until a decision has been rendered on their application for permanent residence.

If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to their priority date not being current, they may be entitled to a three-year extension of their H-1B visa. This exception originated with the American Competitiveness in the Twenty-First Century Act of 2000.

H-1B and Legal Immigration

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 (apply for and obtain the green card) while still 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 years the legal employment-based immigration process has become backlogged to the extent that it now takes many years for skilled professional applicants from certain countries to obtain green cards. Since the duration of the H-1B visa hasn't changed, more H-1B visa holders are required to renew their visas in one-year or three-year increments to continue to be in legal status while their green card application is being processed.