What is a H-1B Visa?
An H-1B visa is a nonimmigrant visa used by US 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 U.S. company.
How Long Does It Last?
A worker with a H-1B visa can remain in the US for up to six years. The initial petition is issued for three years, but can be extended for additional three years.
It is also possible for international employees to recapture any time spent abroad. For example, if the employee leaves the US for 3 months, they can most likely recapture the time lost toward the six years.
Can It Be Extended Beyond 6 Years?
There are exceptions where international employees can extend their stay beyond the six years under the American Competitiveness in the Twenty-First Century Act, or AC21.
H-1B employees can extend their visas if they are the beneficiaries of an approved Immigrant Worker Petition (I-140), and 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 employee'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 extend the H-1B visa indefinitely 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.
When extending the H-1B visa, your employee must have the following:
- A passport with validity for the next 6 months, preferably.
- Scans of all US visa stamps.
- Most recent I-94 arrival/departure record from US Customs and Border Protection (CBP), or from their most recent Form I-797, Notice of Approval.
- All previous Form I-797, Notices of Approval.
- All previous Form I-140, Notice if Immigrant Intent, if applicable.
- All applicable documents detailing previous maintenance of status which can include, but not limited to, I-20s, DS-2019s, etc.
- All education documents, such as diplomas, transcripts, and education evaluations along with English translations, if applicable.
- Letter of support signed by the company describing the employee's work duties, the education requirements for the role, your business standing, market conditions, and why you intend to hire this individual.
- 3 most recent pay stubs from current H-1B employer.
- Documents for the employee's spouse and children if they are in the US and filing for dependent H-4 visas. These documents will also include marriage and birth certificates.
Your immigration team should ensure that all required documents are in order, that your letter of support is sufficient, that all fees are included in the petition, and that all other instructions are followed. Otherwise, the petition could be returned, or a Request for Evidence (RFE) could be issued.
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.
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Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.
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