Common Questions About H-1B

USCIS recently released an FAQ on H-1B nonimmigrant status, namely about applying for a green card, job changes or terminations, international travel, and dependent family members. The information below summarizes common scenarios for H-1B employees, but always be sure to consult with an attorney about your specific situation. The full FAQ can be found on the USCIS website.

Changing to H-1B Status

If you are currently in the United States in another nonimmigrant status, you may generally change to H-1B status without departing the United States. Your employer would request a change of status on Form I-129. To be able to change your status, you must have been lawfully admitted to the United States, your status must remain valid, you must not have violated the conditions of your status, and you must not have committed any act that would make you ineligible to receive a nonimmigrant benefit.

If your current status expires before your employer can file Form I-129, then you will need to obtain an H-1B visa stamp from a consulate abroad and re-enter the U.S. with your new visa after the H-1B petition is approved.

H-1B Period of Stay

Generally, you can remain in the United States in H-1B status for a maximum of 6 years. However, there are some exceptions to this limit. For example, your employer may request to extend your H-1B beyond 6 years if your PERM labor certification has been pending at least 365 days with the Department of Labor or if an I-140 immigrant petition has been pending at least 365 days with USCIS. USCIS may grant extensions for this reason in up to 1-year increments.

Your employer may also request to extend H-1B status beyond 6 years if you are the beneficiary of an approved Form I-140. Your employer must show that a visa is not available as of the date the H-1B extension petition is filed with USCIS. USCIS may grant extensions for this reason in up to 3-year increments.

Recapturing H-1B Time

Your time outside of the United States does not count towards your 6-year maximum in H-1B status. You are eligible to recapture time spent outside the United States exceeding 24 hours periods of time. You can show passport stamps, I-94 Records and travel history from CBP, airline tickets, and boarding passes, to prove eligibility for recapturing time.

Expiration of H-1B Status

If the H-1B petition was not timely filed then USCIS may excuse the late-filed petition if the delay was due to extraordinary circumstances beyond your control. If USCIS approves the late-filed petition to extend status, the approval is effective as of the date of the expiration of your prior H-1B admission period. If USCIS denies the extension request, whether timely filed or not, you will be considered to have been out of valid status as of the expiration date on your most recent I-94.

If your H-1B status is about to expire but a petition requesting an H-1B extension is pending with USCIS, you are in a period of authorized stay even after your H-1B status expires. If the petition is seeking extension of the same employment for the same employer, you may continue working for up to 240 days after your H-1B status expired. If USCIS denies the extension request before the 240-day period expires, your employment authorization will automatically terminate when USCIS notifies your employer of the denial. If the petition is requesting a change in employment or change in employer under H-1B portability, you may work in the new employment for the entire time the petition is pending at USCIS. If USCIS denies the request, your employment authorization will automatically terminate when USCIS notifies your petitioning employer of the denial.

Compelling Circumstances EAD

If your H-1B status expires but you have an approved compelling circumstances Employment Authorization Document (EAD), you will be in a period of authorized stay, but you will no longer be maintaining status.

If you are working in the United States with a compelling circumstances EAD and an employer sponsors you for a temporary visa or green card, you would not be eligible to change status, extend status, or get your green card from within the United States. After the petition is approved, you would need to consular process.

Company Ownership

If you have a controlling interest in a company (you own more than 50% or have majority rights), this company may be able to sponsor you for H-1B status. In this scenario you would be a “beneficiary owner”. Previously, USCIS was more restrictive on beneficiary owners. However, changes were proposed in October 2023 to codify the ability of beneficiary owners to obtain H-1B status. In the meantime, beneficiary owners may already be eligible for H-1B status under the existing H-1B rules. You must still be coming temporarily to the United States to perform services in a specialty occupation. Additionally, the prevailing wage requirements still apply.

H-1B Status and Adjustment of Status

If you have an approved immigrant petition and are waiting for a visa number to be available, there may be a long wait for a visa number to be available to you, depending on what country you’re from. Availability of immigrant visas is subject to numerical limits, and demand for these visas is generally much higher than those numbers. Limits on immigrant visa numbers can only be changed by Congress.

Changing or Leaving Your H-1B Employer

Certain H-1B nonimmigrants may begin working for a new employer as soon as the employer properly files a new H-1B petition requesting to amend or extend H-1B status with USCIS. You don’t have to wait for the petition to be approved.

If your green card application (based on I-140 immigrant visa petition) has been pending for at least 180 days, you can transfer the underlying immigrant visa petition to a new employer if the job offer is in the same or similar occupational classification. This is known as “INA 204(j) portability”. You must submit Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), to transfer your Form I-140 to the new job offer.

When the I-140 immigrant petition is approved on behalf of an H-1B employee, their priority date is set. USCIS won’t just revoke the I-140 approval if the company closes or stops the green card process. The only way you could lose their priority date if the I-140 approval is revoked on certain grounds, such as agency error, fraud, or willful misrepresentation of a material fact.

If you have an approved I-140 petition and your priority date that is not yet current, you are eligible to extend your H-1B status beyond the 6-year limit, in up to 3-year increments. If your PERM labor certification (ETA-9089) or I-140 petition has been pending more than 365 days, you may extend your H-1B status in 1-year increments.

International Travel

If your H-1B petition requesting change of status is pending at USCIS and you travel internationally, USCIS will consider the change of status request abandoned. USCIS may approve the underlying petition, but you will need to obtain an H-1B visa stamp from a consulate abroad in order to re-enter the United States.

You must be physically present in the United States at the time your employer files an H-1B extension. However, if you depart the United States while the H-1B extension is pending, USCIS may still approve the request. You will need a valid H-1B visa to re-enter the United States.

If you are in H-1B status and in the green card process, you may travel internationally without advance parole if: 1) upon returning to the United States you remain eligible for H-1B status; 2) you are returning to the United States to resume employment with the same H-1B employer; and 3) you have valid H-1B visa.

Family Members of H-1B Workers

Your H-4 dependents may be eligible for employment authorization if you have an approved Form I-140, Immigrant Petition for Alien Workers, or have been granted H-1B status beyond 6 years based on 365 days having passed since a labor certification was filed.

Once your child turns 21 or gets married, they no longer meet the definition of a child for immigration purposes and will no longer be eligible for H-4 status. They will need to change to another nonimmigrant status, such as F-1 or their own H-1B. However, they may still be eligible for a green card through the Child Status Protection Act (CSPA), which protects certain beneficiaries due to aging out during the immigration process.