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H1b Visas and Beyond…Next step Residency! (March 2014)

by Desmond P. FitzGerald

Dear friends,

Recently we sent a newsletter on the topic of H-1B visas (Specialty Occupation Work Visas), for professional employees with a minimum of a 4 year college degree and an employer willing and able to sponsor them (click here for Part I of this newsletter). These visa applications will start being accepted by the USCIS on April 1st, 2014, for the visas that will be issued later this year on October 1, 2014. Acting fast is essential, as it is expected that all the visas will be used up on April 1st and it takes several weeks to get the Labor Certification approved. 

If you or your employer needs help with the filing of an H1b visa application, or you already have an H-1b visa and are interested in becoming a U.S. legal permanent resident (LPR), please call our office as soon as possible and make an appointment (617-523-6320, ext. 0).  For your information, we wanted to share with you some responses to questions people generally have about H1b visas and moving down the path towards U.S. residency and citizenship.  Please forward this information to anyone you think may find it useful.

1. Is there a benefit or preference for an H1b visa if I have a Masters degree that I obtained in the US?

There are 20,000 additional H1b visas for individuals who obtained a Masters degree in the U.S. If one of the 20,000 visas is not available for the individual, then the person will automatically be moved to the 65,000 bachelor degree visa group and be eligible for selection again.

2. What are the responsibilities of my employer?

The employer must comply with the conditions identified in the H-1B petition, specifically regarding salary, position, job duties, and location of work site. If there are any material changes to the conditions set forth in the H-1B visa petition and the supporting LCA, the USCIS and/or the Department of Labor should be notified. In addition, employers have the responsibility to keep employment/salary records and pay a portion of transportation costs for the H-1B employee to return to his/her country if employment is terminated by the employer.

For a full list of employer obligations visit: H-1B Visa

3. How long does the H1b visa status last?

Generally, H-1B status lasts 6 years. However, time spent outside the U.S. or non-working time during an H-1B transfer procedure does not count towards the 6 years. Also, if a residency petition or LCA/PERM petition was initiated prior to the first day of your 6th year, under the AC21 law, you may qualify for a 7th year extension and that 7th year extension may be renewed.

4. How many times can I renew my H-1B visa?

Generally an H-1B visa may be renewed as often as is necessary for the individual to complete the 6 years allowed by the H-1B visa law. An individual may be eligible for additional extensions pursuant to the AC21 law (an LCA/PERM process must have been initiated), given that all the requirements are met.

5. How soon can I apply for a Green Card after I receive my H1b visa?

H-1B visas are a dual intent visa (non-immigrant and immigrant intent) and therefore you may apply for your residency as soon as you receive approval for your H-1B visa.

6. Can my H1b visa be transferred to another employer?

Pursuant to the AC21 law, an H-1B visa holder may transfer his/her H-1B visa to a new employer by having the new employer file a new H-1B application. The H-1B holder may begin working for the new employer as soon as the application has been filed (prior to receiving approval of this application). However, if the H1b transfer is not approved the original H-1B visa will be lost. It is therefore recommended to complete the transfer before starting work for the new employer.

7. What is the 7th year extension for an H-1b visa?

Under the law AC21, an individual may extend his/her H-1B visa beyond 6 years, for what is commonly knows as the 7th year extension, so long as the individual has:
1). An LCA (Labor Condition Application) filed prior to the beginning their 6th year on the H1b visa, and
2). This LCA is pending, or if it has been approved, there is a related I-140 (employment residency petition) pending, or an I-140 approved related to the specific LCA that was filed before the 6th year of the H1b visa.

8. What is my status while my first H-1B visa application is pending?

Your status continues to be the status you had at the time that you applied. If your non-immigrant status expires while the H-1B application is pending and there is a visa immediately available to you, then your status will be "an applicant for a non-immigrant visa" and you are permitted to remain in the United States until a decision on your application is made. However, if there is not a visa immediately available, then the visa application does not provide any "status" while it is pending, unless you were on an F-1 status or OPT (Optional Practical Training) and you filed an H-1B application timely (during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect), in this case, your F-1/OPT status and work authorization (if previously granted), would be extended until a decision is made on your application.

9. How many times can I change employers under my H-1B visa status?

There is no numerical limitation to the number of transfers an H-1B visa holder may apply for. There are, however, validity periods. For example, the initial H-1B validity period is 6 years. After that, an individual may leave the U.S. for a period of time and then begin a new 6 year period, or in the alternative, may be eligible for 7 year extensions indefinitely, under the AC21 law, given all requirements are met (i.e. an LCA/PERM process was initiated).

10. How long do I have to leave the country after my H-1B visa status expires or I lose my job?

H-1B visas do not have any extension period during which an individual may depart the United States and therefore you should depart immediately after your visa expires or you lose your job. There are other visas that contain an automatic departure period. For example, an F-1 student visa contains an automatic 60 day departure period. However, H-1B visas do not. Also, H-1B visas become invalid upon the termination of employment or non-compliance with the conditions of the H-1B visa (i.e. salary, position, duties, etc.).

For more answers to Frequently Asked Questions about H1b visas and other US immigration processes please click on the appropriate link.

 

Sincerely,

Desmond P. FitzGerald and
The FitzGerald & Company team

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