The H-1B category is a nonimmigrant classification used by someone who will be employed temporarily in a specialty occupation, in certain research and employment positions with the Department of Defense, or as a fashion model of distinguished merit and ability.
Length of U.S. Stay
Under current law, you can be in H-1B status for a maximum period of six years. After reaching the maximum authorized period of stay, you must remain outside the United States for one year before another H-1B petition can be filed for you. Please note that certain people working on Department of Defense projects may remain in H-1B status for 10 years.
What is a Specialty Occupation?
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, have been deemed to be specialty occupations.
Applying for H-1B Status
H-1B status requires sponsorship by a U.S. employer. The employer must file a Labor Condition Application (LCA) with the Department of Labor attesting to several conditions, including payment of the prevailing wage to the foreign national, as well as extending similar working conditions as U.S. workers receive. The employer must then file the certified LCA with an I-129 petition plus accompanying fee. Based on the USCIS petition approval, the foreign national (if outside the U.S.) is then required to apply for the H-1B visa which will permit him/her to then seek admission to the United States.
Who Can You Work For?
When you are in H-1B status, you may only work for the petitioning U.S. employer and only in the activities described in the petition. You may also work for more than one U.S. employer while you are in H-1B status, but you must have a petition approved by each employer and have your H classification designated as concurrent employment.
What if my Circumstances Change?
Personal changes: As long as you continue to provide the services originally petitioned for by a U.S. employer, most changes will not mean that you are out of status. You may change employers without affecting status, but the new employer must file a new petition for you before you begin working for the new employer.
Employer changes: If the employer you work for merges, is sold, or is acquired, as a general rule this will not affect your status as long as there is no material change in your current employment and the subsequent employer agrees to accept all the conditions of your prior H employment. Please consult an attorney in these circumstances.
Do I have to be working at all times?
Aside from personal leaves, you are required to be continually employed with the U.S. employer. As such, as long as the employer/employee relationship exists, an H-1B individual maintains their status.
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents, however, may not be employed under the H-4 classification.
Can I Travel Outside The U.S.?
You must obtain an H-1B visa in order to travel.
This is a Temporary Status. Can I get an H-1B and Still Intend to Immigrate Permanently to the U.S.?
Yes. An H-1B individual can be the beneficiary of an immigrant (permanent) petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting their H-1B status.