In a previous article, we discussed the basics of the H-1B status and general application process. This article will discuss more advanced topics after someone has obtained H-1B.
Extension
Following the three-year initial period, H-1B visa is typically good for one three-year extension. Once the beneficiary has depleted the total six-year stay, they would need to leave the U.S. for one year before resuming H-1B status. Unless they are cap exempt, they would need to go through the lottery process again.
Here are a couple of ways to extend beyond the six-year total stay. One method is through “recapture.” Extension may be gained if the beneficiary spent any number of days outside the United States during their H-1B period. As H-1B holders typically don’t spend too many days abroad, extension through recapture is often used as a last resort.
Next are extensions made possible by The American Competitiveness in the 21st Century Act, or AC21 for short. In view of the many, many H-1B holder attempting to secure green card through PERM, AC21 provides two possible H-1B extensions during PERM process. First, if over the year has elapsed since the PERM application was submitted, H-1B status may be extended in one-year increments until the EB-2 or EB-3 petition is approved.
Second, if a green card is not immediately available once an employment-based green card petition is approved, H-1B may be extended in three-year increments. This extension is especially important for Chinese and Indian nationals, who often spend years waiting for a visa.
Remember, H-1B status, or any status for that matter, cannot be extended if it’s already expired. So let’s repeat this another way. In order to take advantage of AC21 extensions, a PERM application must be submitted more than a year before the applicant’s H-1B expires.
Basic Extension Process
Documents needed for an H-1B extension petition, assuming that the beneficiary will work in the same position, would be largely identical with the original cap petition. I-129 and the H supplement are still the focus. Premium processing is available, guaranteeing results in 15 calendar days. USCIS would expect updates to the petitioning company and beneficiary’s work experience. While USCIS tends to weight a prior H-1B approval in favor of future extensions, Petitioners should still approach each extension filing with care.
Of note, once the extension filing is pending, the beneficiary will receive an automatic 240 day extension when the current status expires. This 240 days is not a “bonus,” but rather to make up for the long time sometimes needed to review H-1B extensions. They still count towards the 6-year H-1B total.
Transfer – Portability
Beneficiaries who wish to transfer jobs may “port” their H-1B to another employer. The new employer must file the transfer petition before the employee’s current H-1B status expires. If the previous employer has already terminated the employee, the employee has a 60-day grace period for the new employer to file the petition. Employee may begin working for the new employer as soon as the transfer petition is filed.
Visa Renewal and Automatic Revalidation
Remember, getting a nonimmigrant status doesn’t automatically confer a visa document. For example, an F-1 student may change status into an H-1B worker and legally work in the U.S. without ever getting an H-1B visa. If they ever return to their home country for a visit, they will need an H-1B visa to come back into the U.S. under H-1B status. Sometimes, an H-1B worker may have received a 3-year H-1B visa from a consulate abroad. But then they stayed in the U.S. and kept extending their status for 4 years or more. Their status has not expired, but the visa document has.
H-1B visa may be obtained or renewed at a U.S. consulate. Besides forms are certain supporting documents, the employee should present a copy of the H-1B approval notice, which contains an I-94 tear-off sheet at the bottom that spells out the H-1B validity period.
Dual Intent
“Immigrant intent” and “nonimmigrant intent” are concepts derived from immigration law. They apply whenever someone attempts to enter the United States. Customs officers have the job to assess the person’s intent. If a person presents a nonimmigrant visa during entry, they indicate nonimmigrant intent. They present to customs that they intend to keep their visit to the U.S. temporarily until their purpose in complete. An F-1 student intends to leave the U.S. after they complete their study. A B-2 tourist intends to leave after they finish their vacation.
The law allows a limited few nonimmigrant visas to have “dual intent.” People who present them are here both to fulfill their temporary purpose and to immigrate. H-1B is among them. This brings about a major practical benefit. The H-1B holder may submit application to adjust status without losing the H-1B status. They can still continue to travel using an H-1B visa. They can still work for the H-1B employer. For people who are pursuing multiple immigration paths, retaining the H-1B status is often an important safety net.
Conclusion
As with many other immigration topics, H-1B is full of complex little rules that can be easily missed. We hope the topics covered today are helpful.
Shiao PLLC is an immigration law firm based in Washington, D.C. We emphasize honesty and thoroughness to deliver the best results for our clients. If you need immigration help, contact us.