Thursday, January 5, 2012

You have an H-1B Visa: Now What?

If your employer recently sponsored and obtain an H-1B visa on your behalf, then you might be asking yourself, now what?  How long can I stay here on H-1B?  When can I get a green card?  What if I want to change employers, will that affect my H-1B status or green card?  Can I travel on H-1B?  These are all very good questions.  This article provides guidance to those foreign nationals who are currently on H-1B and wish to remain in the U.S. permanently and answers these very important questions.

Maximum Time on H-1B is Six Years: Or Is It?

By now, you probably know that your maximum period of stay on H-1B is six years.  H-1B visa holders are eligible for a total maximum stay of six years. The six-year limit includes time spent on the H-1B visa with another employer. The initial H-1B petition may cover a period up to three years. Extension petitions may be made for a period of three years or less, up to the six year total.  While the six years maximum is strictly enforced, most H-1B visa holders find that they can spend a lot more time in the U.S. on H-1B than that.  Here's how:
  1. Extending for 3 additional years: If you have an approved Form I-140, but cannot file for adjustment of status (Form I-485 or your green card application) because of the per-country limits, you can extend your H-1B visa in three year increments until your visa number becomes available to apply for the green card.  Simply provide your approved I-140 with your H-1B extension request and you can obtain the extension.
  2. Extending in 1 year increment:  If your green card process was started at least 365 days prior to the day when you reach the six-year limit, you may extend your H-1B in one-year increments.  Note that your Form I-140 does not have to be pending for 365 days, it is only required that your employer has processed your application for Permanent Employment Certification, ETA Form 9089 within 365 days of the expiration of your H-1B. 
  3. Recapture time by leaving the US: that time spent outside the U.S. during the validity of an H-1B petition may be added back, or “recaptured” to the period of stay allowed as an H-1B without demonstration that the time spent outside the U.S. was meaningfully interruptive. The applicant need only demonstrate that he or she was outside the U.S. for the period of time requested.  This can be established by the stamps in your passport and/or your I-94, Arrival/Departure Record.
  4. Leave the US for one year:  if you leave the US for a year, when you return, you will start a whole new H-1B so your six year period will be reset.  This, of course, is an option of last resort for most H-1B visa holders.
When Can My Employer Sponsor Me for a Green Card?

This question is highly dependant on the employer-employee relationship.  Most employers use the H-1B program as a way to test the waters with the H-1B worker to determine whether they want to keep that employee permanently. The green card through employment process is filed for prospective employment. You are only required to work for the employer when you obtain the green card. You do not need to work for the company-petitioner while the Company is petitioning for you. If the employer chooses, they can apply for the green card before you even work for the company.  That means if you are working on OPT for another employer, and a new employer wants you, they can begin the green card process now.  Most employers, however, wait until you have spent some time on H-1B with them before starting the green card PERM process because it is a highly involved process. 

Obtaining a green card through the PERM process involves testing the US labor market through a "recruitment" process.  The Department of Labor (the "DOL") must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.  Note that the term recruitment above is set off in parentheses.  This is because the recruitment under PERM is a fiction in that the DOL knows and understands that there is not really a job opening.  The recruitment is merely an established method to determine whether there are qualified US workers to fill the position.  Because the process is involved, and it requires a significant commitment, employers typically wait to determine whether they are serious in hiring you permanently under PERM.

What if I want to change employers, will that affect my H-1B status or green card?  

Under the law, if you are on an H-1B visa with Company A and you wish to transfer to Company B, you are free to change employer at any time.  An H-1B transfer petition must be filed by Company B.  As soon as Company B files the H-1B petition, you can legally change jobs immediately.  The receipt notice Form 797 should be shown to Company B's human resources department and your I-9 will be filled out indicating that you are an alien authorized to work in the US.  Attach the receipt notice to the I-9 and you are in valid H-1B status with the new employer.  To be safe, it is often recommended to wait until Company B's H-1B transfer petition is actually approved, but if you need to change jobs you can do so upon receipt of the transfer petition.  Importantly, this does not reset your six year H-1B status, but it is a way for workers to move freely between jobs if better employment opportunities arise. 

If your employer has begun the green process through PERM and you wish to transfer employers, there are issues that arise. Here is a breakdown of the major issues:
  1. You have an approved I-140, you can "Port": If you have an approved I-140, Petition for Alien Worker, that was filed by Company A and you have transferred to Company B, you can "port" to Company B such that your I-140 would remain valid.  This is only true if your I-485 has been filed and remains unadjudicated for more than 180 days, and the new job is in the same or similar occupational classification as the job for which the labor certification was filed or I-140 was approved.  In this case, filing what is called an "AC-21" will allow you to port and the USCIS to continue to adjudicate your I-485 even though you are no longer working for the company that sponsored your green card.
  2. Keeping your priority date:  If you change to a job that is not similar, you can still retain your "priority date" from an earlier approved I-140.  In green card processing through PERM, your priority date is the date when the PERM petition is received by the DOL. If an I-140 has been approved, you can request to retain your priority date in a newly filed I-140 petition. In this scenario, the jobs in the two PERM cases do not have to be similar at all. You can change jobs from a programmer analyst any job for which you are qualified, and still retain the priority date from the I-140 petition approval. Many people use this strategy to retain their priority date in shifting from the slower EB-3 category to the more favorable EB-2 category. 
Can I travel on H-1B? 

Yes.  You can travel on an H-1B visa just like you could by obtaining a travel permit.  As discussed above, if you do travel on H-1B, you are able to "recapture" that time you spent outside the US to extend your H-1B visa time beyond the six year maximum. 

Contact Immigration Lawyer Matthew R. Porter

If you have questions about an H-1B visa or PERM case, contact Matthew R. Porter.  I have vast experience in H-1B and PERM cases.