Is the H-1B Visa right for Me?

The H-1B nonimmigrant temporary skilled worker visa is the main visa by which foreign individuals enter the United States for employment on a temporary basis. There are a number of considerations to think about when you are deciding whether the H-1B visa is the right one for you.

Temporarily live and work in the United States

H-1B status is temporary in nature and may be approved initially for a period of up to three years. You can renew your visa for up to another three years. The maximum stay in the United States on your H-1B visa is six years. After six years of presence in the United States in H-1B status, you must depart the U.S. for at least one year before qualifying again for H-1B visa.

There are certain ways to extend the H-1B visa past the six years, however, and you may read more about that here.

Possible extension of H-1B status past the six year time limit

An H-1B holder who is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition, and is waiting for the new visa quota to apply for an adjustment of status, may apply to the USCIS for extensions of H-1B status beyond the six-year period in 3 year intervals until his/her adjustment of status application has been adjudicated. However, USCIS has the discretion to approve or deny such applications.

Read more about options once your H-1B visa time runs out.

Is there an imposed visa quota for H-1B status?

Currently there is an annual numerical limit or “cap” of 65,000 H-1B visas issued. Some H-1B petitions may be cap exempt and may not apply to the annual H-1B visa cap. Contact our immigration attorney to find out if your H-1B petition is visa cap exempt.

Am I eligible to work while I wait for approval of my H-1B petition?

USCIS must approve your labor certification petition before you can legally work in the U.S. If you already hold an H-1B, you may begin work for a new employer as soon as your new employer files an H-1B petition on your behalf with USCIS.

Can I be laid off while on H-1B employment?

You or your employer may terminate employment at any time for any or no reason at all. As soon as employment is terminated, the H-1B visa is invalid. USCIS might allow a short grace period of ten days from the date that you were fired or laid off. You will be able to remain in the U.S. for ten days and must file a change of status during this time if you wish to remain here legally. However, it is important to note that this “10-day grace period” is not an official policy.

Discharge of an H-1B worker if the employer wishes to hire a U.S. worker

Your U.S. employer can replace H-1B workers with qualified U.S. workers. If you area an H-1B employee, you will have no claim of discrimination since a U.S. employer has the statutory right, but not the obligation, to give job preference to U.S. workers over H-1B workers. However, if you are hires and are an H-1B visa holder, you cannot be treated differently from other similarly situated U.S. workers.

Can my spouse and children accompany me to the U.S. on my H-1B status?

The H-1B visa allows employees in specialty occupations to also their spouse and children under the age of 21 to accompany them and legally live in the U.S. Accompanying family members require an H-4 visa to live in the U.S.

Can my spouse and children work in the U.S. while I am on H-1B status?

The spouse and children of the H-1B visa holder are not permitted to work, unless otherwise authorized by the USCIS. They can obtain their own work permit and can work in the U.S. after it is approved.

Can my spouse and children attend school in the U.S. on H-4 status?

An H-1B visa holder's spouse and child(ren) under twenty-one years of age are permitted to attend school based on their H-4 status either on a part-time or full-time basis.

Is an H-1B visa a "dual intent" visa?

Although the H-1B visa does not automatically convert to a lawful permanent residence status, you can apply for your Green Card while you are in the U.S. on your H visa without invalidating either your visa or your application for lawful permanent residency.

For more questions please contact our Los Angeles immigration attorney for your free consultation today.