Posted Apr 19, 2002; updated Jan 18, 2006

The H1B is for a "specialty occupation." In order to perform the job, the employee is required to hold the minimum of a bachelor's degree or its foreign equivalent in the same or a directly relevant field. One can apply for an H1B petition for three years at one time, for a maximum total of six years working for all employers put together. Extensions beyond the six-year limitation are possible, as explained below. There are also exceptions for H-1s who are "intermittent," spending substantial periods of time outside the U.S.

A person in H1B status is allowed to work only for one specific employer. It is required that the company has been approved and authorized both by the U.S. Department of Labor via the Labor Condition Application (LCA) and by the USCIS based on the approved H1B petition. [Please note that the LCA for H1B petitions and the Labor Certification for green card processing often are mistakenly confused.]

An individual on an H1B with one, specific employer is not allowed to work for another employer unless and until s/he obtains a second H1B approval for that other employer. It is possible to have more than one valid H1B concurrently. For example, one can be for a full-time job and the second for a part-time job with a different employer.

One in H1B status is allowed to invest money in any business. However, s/he is not allowed to start working for the business or do any work on behalf of a separate entity unless and until s/he obtains an H1B approval for that other entity.

The legal entity that the foreign national helps to create is legally different from the foreign national as an individual. Assuming that the foreign national complies with the state requirements for a Corporation, Partnership, or LLC, s/he can create a legal entity. However, in order to work for the company in any fashion whatsoever, the applicant will require a work visa (H-1 or other relevant work status) since a nonresident alien cannot work without prior USCIS permission. Generally, it is better to work closely with a U.S. citizen or permanent resident who can actively develop the business to the extent necessary to obtain an H-1 or L-1 approval. It is advisable to consult an attorney for detailed clarification.

The spouse of one in H1B status obtains an H-4 visa if s/he is outside the U.S. or H-4 status if the spouse files an I-539 with the USCIS in the U.S. for change or extension of status. A person in H-4 dependent status is not allowed to work. If eligible, the H-4 dependent could obtain a Change of Status to H1B or another status that authorizes employment from the USCIS. A spouse in H-4 status can also request conversion to an F-1 full-time student, if s/he wishes to attend full-time course work. Full time is defined as a minimum of twelve (12) credits per semester in an educational institution recognized by the USCIS. One who is in H-4 status is allowed to attend school but cannot obtain financial aid or the one-year optional practical training (OPT) after completion of the program. (The advantage of the OPT is that it enables one to work for any employer for the 12-month timeframe allowed under the OPT program, as long as the job is related to the subjects studied.) The provisions for extending an H-1 stay beyond the six-year limit, based upon a green card filing, also applies to the H-4. An H-4 dependent can extend her/his H-4 status under the same rules, based upon the primary spouse's green card case.

The only ways for one in H-1 status to work beyond six years is if s/he :

• obtains an H1B extension under AC21 if (a) the green card was started at least 365 days prior or (b) I-140 is approved and awaiting current priority date (The 365-day rule allows for unlimited one-year extensions, as long as the green card case is in process. The other rule, for cases impacted by visa number nonavailability, allows for three-year extensions.); or
   

• obtains an H1B extension to recapture time spent abroad during the six years in H1B status (This is now interpreted as permitting the recapture of ANY time spent abroad.); or
   

• departs from the U.S., lives abroad for one year, and then reenters the U.S. on another H1B visa for three years at a time, for a maximum total of six years again; or
   

• obtains permanent residency based on an approved immigrant petition (when the priority date is current) by attending the immigrant visa interview at the U.S. consulate in the home country or filing papers towards adjusting status to permanent residence in the U.S. and working on the employment authorization document (EAD) issued approximately 3 months after filing the adjustment of status application; or
   

• works abroad for one year with a parent, subsidiary, or related corporation of a U.S. corporation and reenters the U.S. on an L-1 status; or
   

• leaves the country several months prior to the six-year limit and returns on an H1B for the remaining time; or
   

• can "recapture" time spent abroad during the six-year period. (It is now possible to recapture all such time abroad.); or
   

• changes to another nonimmigrant status enabling him/her to work, such as the O-1 or J-1.

Please note the difference between H1B status and an H1B visa. A change of status can be obtained in the U.S., itself, while a visa (the entry document) has to be obtained from outside the United States. Visas are travel documents, only. They only need to be renewed if one travels. The I-94 card reflects one's status in the U.S., and the length of time s/he is permitted to remain in the United States.

1. H1B 6-year Rule : The Immigration Act of 1990 (its H1B provisions became effective on October 1, 1991) imposed the 6-year rule. H1B status is valid for a maximum of six years. There are also exceptions under the AC21. Under AC21, it is possible to extend beyond the six-year limitation if any employment-based green card case has been in process for 365 days. This allows for one-year extensions. Three-year extensions are permitted if the I-140 petition is approved and the visa number is unavailable due to retrogression.

2. H1B Specific Company & Return Transportation : The employer agrees with the USCIS to pay for transportation returning the H1B employee to the home country if s/he is terminated or laid off. Every company has to file its own H1B petition. A foreign national should plan so that s/he always maintains status between jobs.

3. H1B Wage Determination :  The U.S. Department of Labor maintains an online wage library for determination of prevailing wages. Other sources, such as wage surveys, can be offered provided the survey complies with all required standards.

4. H1B Wage & Location of Work : One should file a new LCA for an H1B petition for each site (even in the same state, unless it is within the same Metropolitan Statistical Area or normal commuting distance), because the prevailing wage for H1B purposes depends on the job duties and location. If the LCA is not in place before the change of location, it may be necessary to amend the H-1 petition to reflect the new location.

5. H1B Work Prior to Approval Under AC21 Portability : Under AC21, it is possible to work for the new employer upon filing the H1B petition. Note that it may be risky in some cases to do this since the employee's status would be jeopardized if the petition is denied. Consult with an attorney for advice as to whether any matters in your case are likely to result in a denial.

6. 240-Day Rule : An H1B whose employer has filed a new H1B petition to extend the stay (through the current employer - NOT a job change) can work for up to 240 days based upon the pending H1B petition.

7. H1B Without Job Offer : One cannot get an H1B without an employer. Many people who are looking for jobs try to enter on B-1 or B-2 visitor visas. In countries like India the Consular officials do not normally give the B-2 visa if they suspect that one may settle down in the U.S., i.e. doctrine of preconceived intent. It is, therefore, preferable to obtain a job offer before coming to the U.S. and then to have the employer file for the H1B so that one enters on an H1B visa.

8. H-4 Visa for Spouse : Generally, the minimum documents required for H-4 visa abroad or H-4 status for the spouse are the H1B approval notice of the beneficiary and the marriage certificate. It may be helpful to have all of the following:

a) I-797 form (H1B approval notice)

b) letter of employment from company sponsoring the H-1

c) letter addressed to the consulate in favor of your spouse's visa

d) notarized copy of relevant pages of passport of H1B spouse (Make sure that you have the copy of the page with the valid visa.)

e) Notarized copy of the marriage certificate (If marriage certificate is not in English, have it translated into English and have it notarized.)

f) bank statement to prove you are capable of supporting your spouse

g) a couple of recent paychecks / stubs

h) original passport of H-4 visa applicant

i) a few wedding photographs and a wedding invitation 

j) visa fee

It is better not to provide original documents since they will likely never be returned, though the applicant should have the originals in case the consular official asks to review them at the visa interview.

9. LCA for H1B : It is a common mistake to confuse LCA with LC (labor certification). LC is for employment-based permanent residency. The LCA contains information regarding the offered wage, prevailing wage, location of employment, period of employment, and job title. Additionally, it contains attestations from the employer regarding wages, working conditions, lack of strikes or work stoppages and provision of notice to other workers. Additional attestations are required for H1B-dependent employers and those who have been found to be willful violators.

10. Labor - wage : Using surveys, the employer should justify that the wage being paid is the industry standard, if the employer does not agree that the prevailing wage by the local DOL (SESA) is accurate or acceptable. Any private surveys must meet the requirements in the regulations.

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