The H-1B visa is a popular employment-based visa that allows foreign workers to work in the United States temporarily.
However, it is essential for both employers and employees to understand the specific duration of stay permitted under an H-1B visa.
In this blog, we will explore the various aspects of an H-1B worker‘s stay in the United States, including the maximum duration allowed, what time counts toward the six-year maximum, exceptions to the six-year rule, and the duration for the H-1B worker‘s children.
In short, Understanding the Duration of Stay for H-1B Workers
How Long an H-1B Worker Can Stay in the United States
The primary concern for H-1B workers is understanding the maximum length of time they can stay in the United States. Generally, an H-1B worker is allowed to stay for a maximum of six years, unless certain circumstances allow for extensions beyond this period.
What Time Counts Toward the H-1B Six-Year Maximum?
Calculating the remaining time an H-1B worker has is crucial to understanding their stay in the United States. It is essential to know which periods of time count towards the six-year maximum for H-1B workers.
Recapturing Lost Time Outside the U.S.
Firstly, it’s important to note that only the time spent in the U.S. in H-1B status counts towards the six-year maximum. Time spent outside of the country, even if the person leaves and reenters the U.S. with an H-1B visa, does not count towards the six-year limit. This concept allows H-1B workers to “recapture” any time lost outside the U.S., enabling them to utilize the full six-year maximum.
For example, let’s consider a scenario involving a Russian citizen with an H-1B visa valid from October 1, 2018, through September 30, 2021. If the worker spends three months in Russia from January 1, 2019, through April 1, 2019, those three months will not count towards the six-year maximum. However, the worker can “recapture” the lost three months of H-1B time and potentially extend the H-1B visa a third time to ensure the utilization of the full six years of H-1B status.
Counting Time in L-1 Status Towards the Six-Year Maximum
It is worth noting that time spent in the U.S. in L-1 status also counts towards the six-year maximum for H-1B workers. Some individuals may transition between L-1 status and H-1B status, and it is crucial to calculate the time spent in each status accurately. All time spent in L-1 status is applied to the H-1B six-year maximum.
Similarly, recapturing provisions apply to L-1 visa holders as well. If an individual has an L-1 visa and leaves the country, they can recapture the time spent outside of the U.S. and apply it to their remaining H-1B time.
Dependent Status and its Impact on the Six-Year Maximum
It is also important to understand that any time spent in the U.S. as a dependent spouse or child of a person in H or L status does not count towards the six-year maximum if the dependent obtains their own H-1B status. This means that if a worker’s spouse is in the U.S. with an H-4 visa (available to spouses of H-1B workers), the time spent in H-4 status will not impact the maximum duration of the worker’s H-1B status.
In conclusion, when calculating the remaining time under an H-1B visa, it is crucial to consider the time spent in the U.S. in H-1B status. Time spent outside of the country transitions between L-1 and H-1B status, and dependent status do not directly count towards the six-year maximum. Understanding these intricacies ensures accurate planning and utilization of the allocated duration for H-1B workers.
Exceptions to Six-Year Maximum Stay for H-1Bs
Two significant exceptions to the six-year maximum stay for H-1B visa holders are outlined in a law known as the American Competitiveness in the Twenty-First Century Act (AC21). These exceptions provide opportunities for certain H-1B workers to extend their visas beyond the regular six-year limit. Let’s explore these exceptions in detail.
Exception 1: Approved Immigrant Worker Petition with Non-Current Priority Date
The first exception allows an H-1B worker to extend their H-1B status if they are the beneficiary of an approved immigrant worker petition (I-140) but cannot yet file a green card application due to a non-current “priority date.”
The priority date refers to the date on which the immigrant worker’s petition was filed. If the cutoff date for the worker’s category in the Department of State Visa Bulletin is not current, they are eligible to extend their H-1B status until their priority date becomes current.
To illustrate this exception, let’s consider a scenario. Suppose you are a Chinese national with an approved I-140 petition in the EB-3 category, and your six years of H-1B status are set to end on March 31, 2023.
However, based on the July 2022 Department of State Visa Bulletin, the cutoff date for your category is March 22, 2018, which means only individuals with priority dates before that can apply for green cards. Since your priority date of March 15, 2021, is not current, you are eligible to extend your H-1B status until your priority date becomes current, allowing you to file your green card application.
Exception 2: Pending Labor Certification Application or I-140 Petition
The second exception allows an H-1B worker to extend their H-1B status if a U.S. employer files a labor certification application (PERM or ETA 9089) or an I-140 petition on their behalf before the beginning of their sixth year in H-1B status. As long as the application or petition remains pending (not denied or withdrawn), the worker is eligible to extend their H-1B status for one year.
For instance, suppose your sixth year of H-1B status ends on September 1, 2022. As long as a U.S. employer filed a PERM or I-140 on your behalf before September 1, 2021, and the application is still pending on September 1, 2022, you are eligible to extend your H-1B status for one year.
Utilizing AC21 Provisions to Extend H-1B Status
It is important to note that there is no practical limit to how many times an H-1B worker can utilize these AC21 provisions to extend their visa. The significant backlog in priority dates for some categories means that workers may potentially remain in H-1B status for extended periods while waiting for their priority date to become current.
In such cases, H-1B workers may continue to extend their visas for ten, 15, or even 20 years. However, once the priority date becomes current, the worker must initiate the final step in the green card process within one year. At that point, H-1B status is no longer required, as the worker is well on their way to obtaining a green card.
Limitations and Requirements of AC21 Extensions
It is crucial to highlight that AC21 does not permit an H-1B worker to extend their H-1B status if they are the beneficiary of a family-based immigrant petition. These exceptions under AC21 specifically apply to employment-based petitions, allowing H-1B workers to extend their visas under certain circumstances.
In conclusion, the American Competitiveness in the Twenty-First Century Act provides exceptions to the six-year maximum stay for H-1B visa holders. These exceptions, based on approved immigrant worker petitions and certain employment-based applications, allow H-1B workers to extend their H-1B status beyond the regular six-year limit. The AC21 provisions enable H-1B workers to remain in the United States while they navigate the complex process of obtaining permanent residency.
AC21 and Employment-Based Petitions Only
It’s important to note that these exceptions to the six-year maximum stay provide flexibility for H-1B workers who are actively pursuing their path to permanent residency. The backlog in priority dates for certain employment-based categories often results in extended waiting periods before filing a green card application. Without the AC21 provisions, many H-1B workers would be forced to leave the country upon reaching the six-year limit, disrupting their career trajectory and causing unnecessary hardships.
By allowing H-1B workers to extend their visas, AC21 recognizes the value and contributions of highly skilled foreign workers in the U.S. labor market. It acknowledges that the process of obtaining permanent residency can be lengthy and complex, often subject to factors beyond the worker’s control, such as visa availability and priority date backlogs.
Acknowledging the Lengthy and Complex Green Card Process
It’s important to remember that the AC21 provisions have limitations. While there is no practical limit on the number of extensions an H-1B worker can seek under AC21, there is a requirement to initiate the final step in the green card process within one year of the priority date becoming current.
Once an H-1B worker reaches this stage and is eligible to apply for a green card, they are expected to transition from H-1B status to permanent residency.
Staying Updated on AC21 Developments and Compliance
It’s worth mentioning that the AC21 provisions are subject to change and interpretation by immigration authorities. Therefore, H-1B workers and their employers must stay updated on any developments or modifications to the law to ensure compliance and a smooth transition throughout the visa extension process.
In summary, the American Competitiveness in the Twenty-First Century Act (AC21) provides exceptions to the six-year maximum stay for H-1B visa holders. These exceptions allow H-1B workers to extend their status if they are beneficiaries of approved immigrant worker petitions or have certain employment-based applications pending.
The AC21 provisions recognize the challenges faced by foreign workers seeking permanent residency and aim to provide them with flexibility during the complex immigration process. While there are limitations and requirements associated with these extensions, they offer opportunities for H-1B workers to continue their careers in the United States while pursuing their path to permanent residency.
How Long Can an H-1B Worker’s Children Stay in the United States?
When it comes to the duration of stay for an H-1B worker’s children in the United States, it is essential to understand the specific rules and regulations governing their immigration status. The immigration status of dependents, such as children, is closely tied to the primary H-1B worker’s visa status.
Duration of H-4 Visas: Tied to the Primary H-1B Worker’s Visa
In general, dependent children of H-1B workers are eligible for H-4 visas, which allow them to accompany their parents to the United States and reside in the country for the duration of the parent’s H-1B status. The H-4 visa is contingent on the validity of the primary H-1B worker’s visa.
Initially, the H-4 visa granted to dependent children is typically issued for the same period as the primary H-1B worker’s visa. For instance, if the H-1B worker’s visa is valid for three years, their dependent children will also receive an H-4 visa for the same duration. It is important to note that H-4 visa holders are not authorized to work in the United States.
However, it is crucial to understand that the H-4 visa is contingent on the validity of the primary H-1B worker’s visa. If the H-1B worker’s visa is extended, the dependent children’s H-4 visas can also be extended, allowing them to stay in the United States.
H-4 Visa Limitations: No Authorization for Employment
It is worth noting that in certain circumstances, the H-4 visa holder’s status may be affected by changes in the primary H-1B worker’s situation.
For example, if the H-1B worker changes employers or switches to a different nonimmigrant visa status, such as becoming an L-1 visa holder, it may impact the dependent children’s H-4 visa status. In such cases, it is essential to consult with an immigration attorney or seek guidance from the United States Citizenship and Immigration Services (USCIS) to ensure compliance with the applicable rules and regulations.
Extending H-4 Visas: Contingent on the H-1B Worker’s Visa Extension
The dependent children of H-1B workers who have reached the age of 21 may face certain limitations. Once a child turns 21, they may no longer qualify for H-4 status and may need to explore alternative visa options to maintain their lawful status in the United States. It is crucial to evaluate the available immigration options for adult children, such as student visas or employment-based visas, to continue their stay in the country.
It is important to mention that the rules regarding dependent children’s immigration status can be subject to change, and it is essential for H-1B workers and their families to stay updated on any updates or modifications to the regulations. Consulting with an immigration attorney or seeking guidance from USCIS can provide the necessary information and assistance in navigating the complexities of dependent children’s immigration status.
Staying Informed: Monitoring Updates and Consulting Immigration Experts
In conclusion, dependent children of H-1B workers are eligible for H-4 visas, allowing them to accompany their parents to the United States. The duration of their stay is generally tied to the validity of the primary H-1B worker’s visa. As long as the H-1B worker maintains valid status and extends their visa, their dependent children’s H-4 visas can also be extended.
However, it is important to be aware of any changes in the primary H-1B worker’s situation and to seek professional guidance to ensure compliance with the applicable rules and regulations. Additionally, adult children who reach the age of 21 may need to explore alternative visa options to maintain their lawful status in the United States.
Conclusion
Understanding the duration of stay permitted under an H-1B visa is crucial for foreign workers and their employers.
By being aware of the maximum duration allowed, what time counts towards the six-year limit, exceptions to the rule, and the duration for dependent children, H-1B workers can plan their stay in the United States effectively.
It is recommended to consult with an immigration attorney or an experienced professional to navigate the complexities of H-1B visa regulations and ensure a smooth transition throughout the employment period in the United States.