Answers to Your H1B Questions
Posted Apr 20, 1999

The Law Office of Sheela Murthy receives requests for information repeatedly, so as a special courtesy to our subscribers, we thought we would outline some frequently asked questions (FAQs) with a brief analysis of the legal issues involved.

When Does the Clock Starts Ticking for the 6 years?
The 6 year statutory period begins when you, as the H1B beneficiary, set foot on U.S. soil, not from the date of either the H1B Petition approval nor the date the consulate issues the H1B visa. For example, if your H1B Petition was approved on April 7, 1993, the visa issued on May 5, 1993, but you did not actually come to the U.S. until September 25, 1994 then you would start counting the 6 years from September 25, 1994.

Can I Get Credit for the Time I Spent Outside the U.S.?
If you spent significant portions of time outside the U.S. during your 6 year stay, then it may be possible for that time to be "recaptured." A general guideline is that if you spent over 1 month at a time outside the U.S., then there is a good chance that the INS will grant you an extension for that additional time. However, if you spent two weeks or three weeks at a time outside the U.S., and adding it all up it would come to a few months, that may not help you. If you do want to apply for an extension to get the benefit of time spent outside the U.S., the INS has commented that those trips will need to be well documented. Sometimes passport stamps are unclear, so save those used airplane tickets and other evidence of having traveled abroad, like having opened a bank account.

Can I Work on H1B for a Part-time job or for Multiple Jobs?
H1 positions can be full- or part-time, and it is possible to have several H1 jobs at one time, as long as an H1B petition has been approved for each employer in each of the different positions. Some people have asked us whether having several part-time H1s at one time, would cause a person to reach the H1 limit in less than 6 years. The answer is that it is still 6 years, no matter how many jobs you hold simultaneously.

Am I barred forever If I complete 6 years on H1B in the U.S.?
After the 6 year limit is reached, if you spend a year outside the U.S., then you can again come in on an H1B. Unlike the J1 2 year home residency requirement, the 1 year abroad does not need to be in your home country or country of last residence. If you are lucky enough to have an employer with offices in other countries, you can be transferred abroad to one of the branch offices for one year, then return to the U.S., possibly on L1 or H1B. Or you can find other employment abroad. Again, if you think about these issues early, you can plan ahead.

What Happens to my Green Card Application When I am Abroad?
If you have started your green card process, the case can continue in your absence. As long as the employer is still interested in offering the job to you (or, if a family based case, that the relationship and other eligibility requirements are still met), then the case can proceed, no matter where you are located. Keep in mind, the green card application by an employer is based on an offer of employment, so if the offer is still open, the application can continue.

Can I File my Adjustment of Status While I Am Abroad?
Although a person can have the Labor certification or the Immigrant Petition processed while they are abroad, the adjustment of status or I-485 process to become a green card holder has to be filed within the U.S. to convert from non-immigrant to immigrant status. After the Immigrant Petition or Form I-140 has been approved, if a person is abroad, then instead of filing for adjustment, he or she would proceed with consular processing to obtain the immigrant visa at the U.S. Consulate which has jurisdiction over their permanent address. Consular processing is an alternative to processing the adjustment of status application in the U.S. since most I-485 applications are taking very long, often 10-15 months, while consular processing can take about 3-8 months in most parts of the world.

So, whether you have 1 year or 5 years left on your H1B, it is never too late to start the green card process for those who intend to make the U.S. their permanent home. If you need assistance, the Law Office of Sheela Murthy can guide you through the process professionally and expeditiously under the circumstances.