The H 1B visa is commonly used by US employers to employ foreign nationals in specialized occupations. Every year, thousands of applications are submitted to the United States Citizenship and Immigration Services (USCIS) for obtaining an H 1B visa. Before you apply for the same, it’s important to understand the validity period attached to it.
In this piece, we share everything you need to know about H 1B validity period and extensions.
What is an H 1B Visa?
The H-1B visa is a nonimmigrant visa for foreign employees in specialty occupations. In order to be eligible for an H 1B visa, the applicant must have a job offer for a specialty occupation from a US employer. The job must require a bachelor’s degree or higher in a field relevant to the profession.
Visa Lottery
Generally, the USCIS receives more applicants for H 1B visas than the set cap for each year. If the number of applicants exceeds the cap limit, the USCIS draws a lottery to offer the visa. Once the applicants are selected from the lottery, the employer files an H 1B visa petition. The employer will also need to file a Labor Certification Application (LCA).
Along with the cap of 65,000 for foreign workers, the USCIS grants an additional 20,000 visas to foreign students who wish to receive a graduate degree or higher from the US. Finally, the USCIS exempts certain employers from the cap requirement.
- Cap-subject – The employer is subject to a visa cap. It means that the employer will have to submit an application to be considered for the visa lottery. The employer will receive a chance to submit an H 1B petition only if the application is selected from the lottery draw. Otherwise, the employer will be unable to submit an H 1B petition.
- Cap-exempt – The employer is not subject to the visa cap. The USCIS grants an exemption to employers, including higher educational institutions, nonprofit research organizations, and government research organizations. In this case, the employer does not have to submit a visa application for the lottery.
Once the petition is approved, the foreign worker will be invited to a visa interview.
Premium Processing
The US Department of Homeland Security offers a premium processing service for H 1B visas for additional fees. To avail of this, the employers need to file I-907, Request for Premium Processing Service, and submit an additional fee. Upon filing the request, USCIS will shorten the processing time to just 15 days or return the fees if it fails to meet the 15-day limit.
H4 Employment Authorization
The H 1B visa also provides certain benefits to dependent family members of the visa holder. The dependent spouse or childer of the H 1B visa holder can apply for H4 Employment Authorization Document. Through this, the dependent members can work in the US.
H 1B Validity Period
The original H 1B validity term is three years from the commencement date of your employment. So far, the H-1B is treated similarly to other nonimmigrant visas like the L-1A and L-1B. Other, more restrictive visas, such as the O-1 and E-2, only have a two-year validity. Once the initial period of three years is over, a visa holder can apply for an extension for another three years. Such requests are considered on a case-by-case basis.
Compared to other visas, the H 1B visa is valid for a shorter duration. For example, the validity of the L 1A visa can be extended for up to seven years. Other visas, such as O 1 and E 2, can be extended indefinitely as long as the visa holder maintains their status.
Calculation of Validity Period
It is important to understand how the initial six years of H 1B validity are calculated. Here are the two main points to keep in mind:
- The USCIS only includes the time spent in the US while calculating the initial six years of H1B visa validity. This means that if a nonimmigrant worker spends any time outside of the US while the visa is valid, the same will be excluded from the calculation of six years. Upon return of the visa and expiry of the six-year period, the visa holder can recapture the lost time. This is to ensure that the visa holder is able to exercise the benefit of an H 1B visa for the entirety of six years.For example, if a foreign worker receives an H 1B visa starting March 2020. After this, the visa holder travels to her foreign address and stays there from June to July 2020. Upon expiry of the H 1B visa, the visa holder can recapture this lost time and stay in the US for two extra months.
- The time spent by an H 1B visa holder as an L 1 visa holder will be included in the calculation of the initial six months. This is because many foreign nationals shift between H 1B and L 1 nonimmigrant visas.For example, if a visa holder moves from the H 1B status to L 1 status for a period of six months, it will not have an impact on the calculation of H 1B validity.
- Any time spent in the US as a dependent of an H 1B or an L 1 visa holder will not be included in the six-year period.For example, let’s say an H4 dependent spouse of an H 1B visa holder enters the US in July 2020. Later, she receives an H 1B status. In this case, the period of validity will start from the time she receives an H 1B visa.
Extension of H1B Validity Period
The American Competitiveness in the Twenty-First Century Act (AC21) provides certain conditions when the H 1B visa can be extended beyond the six-year maximum. However, a visa holder cannot claim this extension as a matter of right. The applications are considered by the USCIS before granting an extension. Generally, there are two different criteria under which an extension is granted:
- The employer has filed a PERM Labor Certification for you within the last 365 days. This allows the employer to permanently employ a nonimmigrant worker. If the PERM Labor Certification is not needed in your particular case, then the employer must have filed Form 1-140, Immigrant Petition for Alien Workers, within the last 365 days.
- You have an approved Immigrant Worker Petition or PERM. However, you are not able to submit a permanent residency application or file for a green card as your priority date is not current. In such cases, the H 1B visa holder can receive one-year extensions. Due to the large backlog in priority dates of employers, visa holders can receive multiple one-year extensions and continue working in the US beyond the six-year period.
Filing for H 1B Extension
In order to get an H 1B extension, your employer will need to file a set of documents before the USCIS. This includes:
- A valid passport
- Scans of all US visa stamps.
- Arrival or departure record from the US Customs and Border Protection (CBP), or from their most recent Form I-797, Notice of Approval.
- Three most recent pay stubs from current H-1B sponsor employer.
- Documents for the visa holder’s, including marriage certificate and birth certificates.
H1B Grace Period
The USCIS has lately introduced specific provisions in the form of grace periods if your H-1B validity period expires or you find yourself without a new sponsoring employer.
You will get a ten-day grace period at the start and conclusion of your H-1B validity period to get settled and/or settle your affairs before starting employment or departing the country. As a result, your validity period has been extended by twenty days.
You will also be given a grace period if your employment is terminated before the official H-1B duration of stay has been completed. Those who found themselves in this situation in the past had no choice except to flee the nation. However, with the 2017 regulation, you get a 60-day grace period from the day you no longer have a sponsoring employer. This gives you a chance to find a new employer.
How Can Herman Legal Group Help?
The US immigration law can be tough to navigate. It is natural to feel stress and anxiety related to the process. Trust us, you are not alone in feeling this way. While it can be tempting to go through the process alone, a little professional guidance can help you save a lot of time and money in the long run. The professional legal assistance of an immigration attorney can guide you through the process and avoid any pitfalls.
At Herman Legal Group, we have a team of immigration attorneys with years of experience in H1B visa applications. We will work with you every step of the way and make sure your application is watertight to increase your chances of success. Our focus is on creating a smooth experience for you so that you can get your visa without any stress or anxiety.
