A foreign worker may only work six consecutive years in H-1B status. To become eligible for another six years, the foreign worker must leave the U.S. for one year. Periods spent in any H status, H-4 or H-1B, count towards that six year limit.

An H-1B is approved by INS for an initial period of up to three years with a total of six years.

Section 106 contains special provisions requiring the INS to grant extensions, in one-year increments, past the six-year maximum, in cases of lengthy adjudications. This section only applies to (1) H-1B workers, (2) who are the beneficiaries of EB visa petitions or who have submitted applications for adjustment of status, and only if (3) 365 days or more have elapsed since (a) the filing of an application for a labor certification on their behalf or (b) the filing of an EB visa petition on their behalf. Notice that an H-1B worker whose application in still in the labor certification stage is NOT eligible for an extension under this section.

My H-1B renewal petition was filed before the initial H-1B petition expired but the INS has yet to approve the renewal. Am I out of status? May I continue to work?

No, as long as the renewal petition is filed before the initial petition expires, the person does not fall out of status. As far as work is concerned, the foreign professional may continue to work while the renewal petition is adjudicated by the INS.



I am a student and have obtained optional practical training. When should I file for my H-1B?

It used to be that we would tell a student that it was safe to wait until four or five months before the optional practical training expired. That is no longer the case due to the long processing times for H-1Bs and the uncertainties about H-1B availability. These days the suggested procedure is to file for the H-1B as soon in the student?s practical training tenure as possible. This will prevent the problems that we saw and heard about this year of students who did not get their H-1B in time and had to wait three and four months before resuming employment.



My H-1B petition was filed before my underlying F-1 or B-2 visa expired but the INS has yet to approve it. Am I out of status?

No, if the H-1B petition was filed before the underlying status expired, the foreign professional is not out of status.



My H-1B petition has been filed. May I begin to work?

No, unless the individual has a valid practical training, work may not be commenced until the H-1B is approved. Premature employment is illegal and could get both the employee and the employer in trouble with the INS and the Department of Labor.  

Section 105 would allow an H-1B worker to change employers as soon as his or her new employer submits a "nonfrivolous" H-1B petition to the INS.



I lost my job, how do I stay in status?

There is a belief that there is a grace period for someone who loses their job. The fact is that this belief is incorrect. The regulations do state that someone who is in the United States pursuant to a nonimmigrant work visa has ten days to wrap up their affairs and depart the U.S. once the employment relationship comes to an end.

If the person is not planning to depart the U.S. there is no grace period. The only way to maintain legal status is to file a new petition under a new employer as soon as the person departs the job, and preferably, before the person leaves the first job or change their status from H1B to B1/B2 for an additional 6 month visitor visa.



What are the consequences of falling out of status?

At the very least the consequences are very inconvenient and at the other end of the spectrum the consequences are quite severe. The least that will happen is that the offending individual will not be able to apply for permanent residency in the United States and will actually have to have an interview in his/her country of origin. This is inconvenient because two weeks or more could be lost from work and school (for the children) not to mention the potential cost of airfare and accommodations. Beyond that instead of getting permanent residency in the U.S. without probably having an interview, the whole family will have to be interviewed by a consular officer. As most veteran foreign workers already know, it is always best to avoid consular interviews whenever possible, because these interviews can be uncomfortable, to say the least.

At the other end, remaining out of status for more than six months or a year may bar a person and their dependents from obtaining any type of visa, including permanent residency for a period of three or ten years!



May I have multiple H-1B petitions?

Yes, a foreign professional may work for multiple employers so long as each employer has an H-1B petition approved for the professional.



May I have two or more companies sponsor me at the same time for full-time employment?

The answer is still yes. The immigration and labor laws do permit this course of action. However, if what is really happening is that the foreign professional is knowingly letting several corporations sponsor an H-1B with the intent to only take one job offer, it is improper.

While there may not be any immigration repercussions, if an H-1B is being sponsored it is very likely that there is a contract of employment. A company that spends the time, money and effort to process an H-1B may well sue the foreign worker for breach of contract, and perhaps consequential damages. Remember that companies make commitments to their clients and when a company waits 2-4 months for an H-1B to be approved to be told that the worker decided to take another job offer, it may cause the company to lose business due to its inability to deliver to the client.

The bottom line is that as soon as you know that you are going to go with one company rather than another, let the other company know that you are not interested as soon as possible so that they timely make the appropriate steps to minimize the consequences. Hopefully, you will not allow yourself to even get into this type of situation in the first place.

Does the new H-1B visa bill allow certain persons to extend their H-1B status for more than six years?

Yes. Section 104(c) allows ANY alien (1) who is the beneficiary of a FILED EB-1, EB-2 or EB-3 visa petition; and (2) would be eligible to apply for permanent residence except for the application of per-country limitations (e.g. born in India or mainland China) to apply to the INS for extensions of nonimmigrant status until his or her adjustment of status application has been adjudicated. Beware, the bill states that the application "may" be approved. This means that it may be denied as well.

Section 106 contains special provisions requiring the INS to grant extensions, in one-year increments, past the six-year maximum, in cases of lengthy adjudications. This section only applies to (1) H-1B workers, (2) who are the beneficiaries of EB visa petitions or who have submitted applications for adjustment of status, and only if (3) 365 days or more have elapsed since (a) the filing of an application for a labor certification on their behalf or (b) the filing of an EB visa petition on their behalf. Notice that an H-1B worker whose application in still in the labor certification stage is NOT eligible for an extension under this section.

Does the new H1-B visa bill allow more persons to immigrate through the EB categories?

Yes. While the bill does not actually increase the EB quotas, section 106 would allow for the more than 100,000 EB visas which were lost in fiscal years 1999 and 2000 due to INS processing delays to be "recaptured" as long as there is excess demand in the EB-1, EB-2 and EB-3 categories.

Does the bill make it easier for an H-1B worker to change employers?

Yes it does. Section 105 would allow an H-1B worker to change employers as soon as his or her new employer submits a "nonfrivolous" H-1B petition to the INS. Current law requires that a worker wait until the petition is approved before changing employers.


What is an LCA?

LCA is the acronym for Labor Condition Application (a/k/a the form ETA 9035). When an H-1B is processed, papers have to be processed with the INS and the Department of Labor (DOL). The DOL is involved in the process because the federal government wants to ensure that if foreign workers are being hired it is not being done in a manner that underpays them. This protects the foreign workers from being abused, but the main purpose of this process is to protect the jobs of American workers and to make sure that wages are not artificially depressed.

When a U.S. corporation hires an H-1B worker it will have to pay that worker the prevailing wage as determined by the DOL and its wage surveys. If a U.S. company does not offer the H-1B worker a wage that comes within 95% of this prevailing wage, an H-1B petition cannot be processed. The LCA is the form where the prevailing wage is set forth and the U.S. company promises to pay at least the prevailing wage. Once the company completes and signs this LCA, it must be sent to one of the 10 regional DOL offices for certification. The process may take anywhere from a couple of days to four or five weeks depending on the area of the country. The INS will not approve an H-1B petition without a completed, signed and DOL certified LCA.



Once I have my work visa, do I get a Social Security number?

Absolutely! As a matter of fact, until you obtain your social security number, your employer will not be able to pay you. Once the change of status approval is received from the INS, the foreign professional must go to the nearest Social Security Administration office to apply for the SSN. The professional must take the original approval notice and passport. It normally takes 2-4 weeks to receive the social security card and number.



Do my dependents also get social security numbers?

No. It used to be that even tourists could obtain social security cards that bore the notation "valid for employment only with INS authorization". That is no longer the case ? only the foreign worker will be able to obtain the social security card and number. This change in policy took place several years ago due concerns about false documents and the reasoning that if one cannot work, a social security number is not really required. Nonetheless, foreign students and exchange professionals can still obtain the social security card with the notation mentioned above.