What is an H-1B?
An H-1B temporary worker is a foreign national who is coming temporarily to the U.S. to perform a specialty occupation. A specialty occupation is defined as “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation in the United States.” INA214(i); 8USC 1184(i)
Limitation on Duration of Stay
An employer may request initial employment for up to a maximum of 3 years. The H-1B can be extended. Generally, the maximum amount of time that an individual can hold H-1B visa status is 6 years.
On the 6th Year as an H-1B + Visa Backlog = Trouble
A major issue created by the EB-3 (and EB-2) backlog is its effect on many H-1B workers who are subject to the 6 year limitation.
Unless a labor certification and visa petition were filed for an H-1B holder at the beginning of their stay, many H-1Bs are faced with the possibility of having to return to their home country because the visa backlog has created a time gap between the end of their H-1B stay and the anticipated time they would adjust their status to that of a permanent resident. Furthermore, employers who have invested resources in training the H-1B worker will lose the benefit of that training, if the foreign worker is forced to leave.
Employers should be aware of the exceptions to the 6 year limitation of the H-1B visa:
(1) A foreign worker in H-1B status is entitled to an extension beyond the 6 year limitation in 1 year increments IF he or she has a labor certification or I-140 visa petition that has been PENDING for over 365 days;
(2) The same worker is entitled to an additional 3 year H-1B extension beyond the 6 year limitation IF he or she has an approved I-140 visa petition and his or her Employment Based category is subject to the backlog;
(3) The H-1B worker is entitled to get back all days he or she spent outside of the United States because only actual presence in the United States is counted toward the 6 year limitation imposed by the H-1B visa.
John Mei is an immigration attorney and partner with the law firm of Danziger and Mei, LLP located in Woodland Hills, California. Mr. Mei provides clients with solutions in the area business immigration law. He represents multi-national corporations, start-ups, publically traded companies, hospitals, universities, and foreign investors. Mr. Mei has authored numerous articles related to business immigration. He is admitted to practice law in California and is an active member of the immigration and business law sections of the Los Angeles County Bar Association.
Website: http://www.danzigermei.com/ Email: johnmei@danzigerlaw.com
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