H1B Status: 6-Year Limit, Portability, and More15 Sep 2003
This overview examines the six-year limitation on a foreign national’s stay in the United States in H1B status, and the exceptions to that limit. It also explains H1B portability, the H1B quota or “cap” provisions, and related matters.
Duration of Stay in H1B Status
The maximum duration of stay in H1B status is six years, under the general rules. Additionally, time spent in L-1 status is counted against this six -year time limit. If an individual changes status from L-1 to H1B, therefore, the time spent in both statuses is added together to determine how much time remains for use in either status.
The law provides for certain exceptions to the durational limit of H1B status. If the beneficiary’s work in the United States 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. Under more widely used exceptions to the H1B six-year limit, the law also permits extensions beyond the six-year limit based upon qualifying employment-based, permanent resident (green card) filings. These commonly-used provisions are explained in more detail, below.
Ability to Start Work Upon Filing the H1B Petition
Under the American Competitiveness in the 21st Century Act (AC21), a person who is in H1B status is allowed to accept new employment and start working for the new employer immediately upon filing the H1B petition, so long as s/he satisfies the following three criteria:
a) S/he has been lawfully admitted to the United States;
b) An employer has filed a non-frivolous H1B petition on her/his behalf for new employment before the expiration date of the individual’s period of authorized stay; and
c) Subsequent to such lawful admission, s/he was not employed without authorization in the United States before the filing of such H1B petition.
However, if the H1B petition is denied, the person no longer qualifies under these provisions and must cease working for the new petitioning employer. Using this rule creates practical problems and risks for the employee. The risks are connected to the potential for denial of the petition, as starting such employment usually requires termination of prior employment and a loss of the previously-held H1B status through prior employment.
Basic Rules for H1B Extensions
There are two basic rules for extending the H1B beyond the six-year durational limit. One rule allows for one-year extensions beyond the initial six years, while the other allows for three-year extensions. There is no limit on the number of such extensions an individual may receive.
One-Year H1B Extension Rule
The rule that allows for extensions beyond the six-year limitation in one-year increments requires the initial filing of an employment-based, permanent residence (“green card”) case at least 365 days prior to the start date requested in the H1B extension. This means that the first stage of the case must have been filed at least 365 days before the start date requested in the H1B extension which requests time beyond the standard maximum of six years. The first step in an employment-based green card case is usually the PERM labor certification. In those cases that do not require a labor certification, the I-140 petition is the first stage of eligibility for these extensions.
Three-Year H1B Extension Rule
The rule that allows for three-year extensions requires approval of the I-140 petition as well as requiring that an immigrant visa number is NOT available in the particular category. Visa number non-availability is determined by the U.S. Department of State Visa Bulletin, available through MurthyDotCom. Since the three-year rule requires non-availability of visa numbers, its applicability in any particular case is impacted by the employment-based (EB) category of the case, the country of chargeability, the case’s priority date,and the visa bulletin cutoff date.
H1B Quota and Counting
There is an annual limit or “cap” on the number of new H1B worker petitions which can be approved each fiscal year. This limit is 65,000. There are an additional 20,000 exemptions to the cap limits for individuals with advanced degrees from non-profit U.S. institutions of higher education.
Foreign nationals in the following situations are not subject to the annual H1B quota of 65,000.
a) Persons employed at a university, affiliated nonprofit entity, nonprofit research organization, or government research organization;
b) Persons who have previously been counted against the H1B quota (A person would generally only be counted once against the cap unless s/he has a year outside the United States, thereby resetting the clock on the six-year limit.);
c) Physicians who obtain a Conrad 30 waiver of the J-1 two-year home residency requirement;
d) Persons who have H1B amendments with the same employer that do not request an extension of stay;
e) Persons already in H1B status and previously counted against the cap who change employers; and
f) Persons already engaging in H1B employment who are applying to work concurrently / simultaneously for an additional employer while maintaining their current employment.
One of the reasons the H1B category is so popular is that it offers foreign nationals and employers a fair amount of flexibility for specialty occupation employees. However, there are many complexities, exceptions, and nuances that must be taken into consideration when planning for H1B employees. Attorneys at the Murthy Law Firm are available to help H1B employers and their employees in successfully navigating the laws, regulations, and policies relating to H1B workers.
Copyright © MURTHY LAW FIRM. All Rights Reserved