What is the duration of a H1B status?
A foreign national can be in H1B status for a maximum of 6 years. To get another H1B visa request approved you need to wait for a year by staying outside the U.S. The people
working in Defense Department project can get their H1B visa duration extended up to 10 years. Some foreigners can obtain extension of the visa beyond 6 year maximum period when:
- 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB
- 365 days or more have passed since the filing of an EB immigrant petition.
Who can a H1B foreigner work for?
A foreigner with H1B visa can work only for a US Employer who sponsors your visa and only in the activities mentioned in the visa petition. If all the applicable rules are satisfied then only the US employer can place the H1B foreign worker on the work-site of another employer. H1B foreign employee must have a Form I-129 petition approved by all his/her employers if he/she is working under more than one US employer.
What if the H1B nationals' circumstances change?
If the foreign H1B employee wishes to change his employer, the new employer must file the I-129 petition for the foreign worker before he/she starts working for this new employer. In many instances, any sale or merging of the employer's business will not have an impact on the employee's status. However, if the change means that the foreign national is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.
Should an H1B foreign worker be working at all times?
This depends on how long an employer/employee relationship exists. If the relationship exists then the H1B worker is still in status. An employee can apply for a leave if he/she wants to go on a vacation or sick/maternity/paternity leave, provided the leave is approved by the employer.
Can a person with H1B visa travel outside the U.S?
Yes, The H1B visa allows a person to reenter the U.S during the period of the visa and approved petition.
Will a person with a H1B Visa be allowed to immigrate permanently to the USA?
Yes. This is one of the main advantages of a H1B visa.
Can an H1B visa petition be filed while I am working in India?
Yes. An US employer who offers you a job while in India can file your H1B petition. You do not need to be in the United States when your US employer files your H1B petition.
Why is H1B visa called a "dual intent" visa?
It is called a dual intent visa as it is one of the few non-immigrant visa categories where a foreign national may also later apply for an US Green Card (permanent residency). Since the H1B visa is considered a dual intent visa, H1B visa holders can also apply for a US green card.
What is the H1B process like?
The process of applying for H1B includes the following.
- Get a job offer letter from an US employer.
- The employer files for the H1B Labor Condition Application (LCA).
- The petitioning employer files Form I-129.
- The USCIS selects H1B petitions in the H1B lottery until the annual H1B cap has been met.
How many H1 visas can one person have?
There is no limit to the number of H1 visas a person may have. Different companies may file for H1B visa for the same employee.
Can I bring my spouse with me? If so, can they study and work in the US?
Yes, your spouse and dependents can also accompany the H1B visa holder to the US on an H4 dependent visa. H4 dependents may study and also apply for employment authorization document (EAD) to work in the US.
Can I start my own company while on H1B visa status?
Yes, but you cannot form an S-Corporation for which you must be a US citizen. There are many ways to start your own company, but one of the most effective ways is by incorporating "Limited Liability Company" ( LLC ). LLC can be a "Partnership Firm" or the liability protection as a "Incorporated Company." You can be the Chairman or Director of the Board, but you cannot work for it unless you have an H1 visa issued from that company. However, you can hire a CEO for the company, who has a valid work permit (Green Card or US Citizen).
What is the difference between H-1B status and H-1B visa?
An H-1B visa is a non-immigrant visa issued by an U.S. Embassy or Consulate abroad. H-1B status is a non-immigrant status issued by the USCIS to foreign nationals already residing in the U.S. or upon entry with an H-1B visa. Legal status allows you to stay legally within the U.S. while a visa allows you to seek entry into the U.S. legally.
I have been recently let go from my employer while on H-1B status. Can I remain legally in the US by changing status to another non-immigrant visa category?
H-1B visa permits foreign nationals to work and stay in the US with a sponsoring employer. Once H1B visa is approved and the foreign nationals step in the US, they acquire a H1B status. They are considered to be legally working for the sponsoring employer until the 6-year period expires. However, there are instances where workers under H1B status are let go before the set duration expires. If you wish to continue living legally in US after being let go on H1B status, you will need to insure the following.
When the employer dismisses you from employment, your H1B status is no longer valid. However, USCIS will allow H1B visa holders whose status has been terminated to change status to another non-immigrant visa. This means that you may apply for B-1 or B-2 non-immigrant visa to continue staying in the US The petition for change of status should be applied for within 10 days after you have been let go.
If you still wish to maintain your H1B status, you will need to find a new sponsoring employer who can offer you a position relevant to your field of education. The new employer will then need to file a H1B visa transfer.
My employer just laid me off. Is it possible for me to apply for another status?
Yes. If both you and your spouse are on H-1B or L-1 visa, change your status to your spouse's dependent status like the H-4 or L-2. If you want to study further you can change the status to F-1 (student status). If none of these options are available, you can change to the tourist status (B-2).
I was recently laid off while on an H-1B. I applied for a change of status to B-2 (tourist) and that application is still pending. I have now found another employer willing to sponsor me. Can I apply for an H-1B again?
It is best not to have multiple applications in parallel. As long as you are eligible for more time on H-1B, you can change it back from another status such as B-2, H-4 back to H-1B. You will not be subject to the H-1B cap again, simply because you earlier requested to change to some other status like H-4.
I used to work with employer A earlier. I left them and joined employer B. Employer B laid me off but my petition with employer A is still valid and they didn't revoke my H-1B petition yet. Can I just join the employer A again?
Yes, you are allowed to return to work for employer A who has a "dormant" H1B petition. However, as employer A didn't revoke the petition, the Department of Labor may take the position that you were never terminated and your employer may be asked to pay the back wages while you were not employed for the duration in between. Your employer should consult an attorney who specializes both in immigration as well as in labor law.