Overview : H1B Visas (Part III) – 6-year Limit, Portability, Etc
Posted Sep 15, 2003

In this third and final segment of our H1B overview, we discuss the six-year limit on stay and its exceptions; the two provisions of the new law enabling extensions beyond six years; as well as the new portability and quota-counting provisions and various miscellaneous issues not included in the prior two H1B articles.

Duration of Stay in H1B Status

The maximum duration of stay in H status is six years. If a person has held more than one type of H status, or has held L status, then stays in all of these statuses are added together to determine how much time remains available. For example, if a person came to the U.S. on an L1 visa, later changed to H1B, and then to H4, it is necessary to add up the period of time spent on all three of those categories towards the 6 year stay allowed.

The law provides for certain exceptions to the limit on stay. If the beneficiary's work in the U.S. is seasonal or intermittent, or s/he spends six months or less per year in the U.S., then the six year limit does not apply. The law also permits one to apply for one-year incremental extensions of H1B status if s/he has remained in status and has had a labor certification our I-140 pending for 365 days or more.

Ability to Start Work Upon Filing the H1B Petition

Prior to October 17, 2000, an H1B Beneficiary was not allowed to work until the INS had approved the H1B Petition. Under AC21, a person who is already in H1B status is allowed to accept new employment and start working for the new employer immediately upon filing the H1B petition as long as the person satisfies all of the following three criteria:

(a) has been lawfully admitted to the U.S.,

(b) filed a non-frivolous H1B or other non-immigrant petition which is pending for new employment; and

(c) has never been employed without authorization in the U.S. before the filing of the H1B petition.

This clause is retroactive and applies to all H1B petitions that were filed before, on, or after the date of the enactment of AC21 i.e. October 17, 2000. However, if the H1B Petition is denied, the person can no longer work for the petitioning employer. This new rule would therefore create practical problems for the employee if the petition is denied, since the prior employer may have terminated the prior job offer or revoked the previously approved H1B Petition.

H1B Quota and Counting

H1B workers in the following situations will not be subject to the annual H1B quota of 195,000 (as increased under AC21) for fiscal years 2001, 2002, 2003 or 65,000 thereafter.

a) Persons employed at a university, affiliated non-profit entity, non-profit research organizations, or government research organization;

b) Persons who have previously been counted against the H1B quota (a person would only be counted once against the cap unless s/he has a year outside the U.S., thereby resetting the clock on the six-year limit.)

c) Physicians who obtained a Conrad 20 waiver of the J-1 two-year home residency requirement; Extensions of stay for those already on H1B status;

d) H1B amendments with the same employer which are not requesting an extension of stay;

e) Change of employers by a person already on H1B status; and

f) Persons already engaging in H1B employment who are applying to work concurrently / simultaneously for an additional employer while maintaining their current employment.

Return Transportation Costs

The employer must pay the return transportation costs of the H1B employee if the employee is dismissed prior to completion of the approved H1B term.

Benching Rule

If H1B employees are “benched” due to the employer’s business reasons (such as the lack of available work), then they must still be paid for the full hours specified on the H1B petition. If an employee is absent based on issues not work related, such as personal or health reasons, then the above provision does not apply. 

Departure Penalties Prohibited

It is illegal to require an H1B employee to pay a penalty merely for leaving the employer. However, it is permissible to require an employee to reimburse the employer for actual expenditures incurred by the employer if the employee leaves the employer within certain timeframes agreed to by the parties. Examples where the employer may require reimbursement include airline tickets to enter the U.S. for the H1B employee and family members, tuition for attending seminars while on the job, hotel costs while locating a home or rental property, etc.