What is a H-1B Visa?
An H-1B visa is a nonimmigrant visa used by American companies who wish to employ foreign workers in occupations that require college degrees or their equivalency. Most occupations for which foreign employees use the visa are in medicine, chemistry, engineering, biotechnology and the social sciences. Employees who are granted H-1B visas may only work for the sponsoring American company.
How Long Does It Last?
A worker with a H-1B visa can remain in the US for up to six years. It is initially for three years but can be extended for additional three years.
A worker can leave the US without losing the time lost in the US. For example, if the foreign worker leaves the US for 3 months, he can recapture the time lost toward the three or six years.
Can It Be Extended Beyond 6 Years?
There are exceptions whereby the foreign worker can extend his/her stay beyond the six years under the American Competitiveness in the Twenty-First Century Act, or AC21.
H-1B workers can extend their visas if they are the beneficiaries of an approved Immigrant Worker Petition (I-140) and they cannot file a green card or permanent residency application because their priority date is not current. The Department of State publishes priority dates in its monthly Visa Bulletin.
If the worker's priority date is not current, the employer can extend the visa for another three years. There is a substantial backlog in priority for particular categories so the employer can keep extending the H-1B visa numerous times until the priority date becomes current.
The sponsoring employer should file a Labor Certification Application (LCA), or I-140, before the beginning of the sixth year of the worker being in H-1B status. If the application is still pending by its expiration, you can extend the H-1B status for another year.
Any male nonimmigrant visa applicants from age 16 to 45 are required to file form DS-157 with their Nonimmigrant visa application or DS-156.
When extending the H-1B visa, your employee must have the following:
- A valid passport for the next 6 months.
- The passport must contain the existing visa of the same category. Workers that have H-4 visas, for example, cannot revalidate to an H-1B.
- Have the original I-94 stapled to the passport. If it has expired, submit a valid Form I-797, Notice of Approval, from the USCIS.
- Form I-797 indicating the current employer and approval of the extension.
- Letter from you, signed by you and on company letterhead describing in detail the employee's work duties, your business standing, market conditions and why you want this worker's visa extended.
- Form OF-156 with passport sized photo attached to the applicable form and with the birth month spelled out.
- If the worker's spouse and children are in the US and filing for separate visas, such as H-4, they will need to follow separate requirements.
It is highly recommended that an employer always check with an immigration attorney to ensure that all required documents are in order, that your letter to the Visa Office is sufficient, fees are paid and that all other details are followed or the applications will be returned.
If you have any questions about extending an H-1B Visa, please schedule some time to speak with us.