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The H-1B Benefits - Multiple Year Duration,
the Dual Intent, the Ability to Change Employers, and H-4 Work Permit

1. Multiple Year Duration

The H-1B visa allows specialty occupation workers to enter the United States, and work in a professional capacity for a maximum period of six years. The H-1B status is initially issued for a maximum period of three years, and may be renewed for an additional period of three years. Generally speaking, the maximum duration of stay permitted in the United States for an H-1B holder is a cumulative six years.

In theory, the maximum duration of the H-1B visa is six years, or ten years for exceptional Defense Department project-related work. H-1B holders who want to continue to work in the U.S. after six years must remain outside of the U.S. for one year before reapplying for another H-1B visa. There are generally two exceptions to the six year duration of the H-1B visa:

1) If a H-1B visa holder has submitted an I-140 immigrant petition or a Labor Certification prior to his 5th year anniversary of having the H-1B visa ( its priority date is at least 365 days), and the I-485 application is still pending, the alien is entitled to renew the H-1B status in 1 year increments, until a decision has been rendered on his or her application for the permanent residence. 

2) If the H-1B visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the Green Card process (Form I-485 application), due to his priority date not being current, the alien worker may be entitled to a 3 year extension of the H-1B visa. This exception originated with the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21).

2. The Dual Intent and Opportunity to Petition for U.S. Permanent Residence (Green Card)

Many foreign nationals seeking nonimmigrant visas are unclear about the “presumption of immigrant intent” and suffer visa denials because they are unable to prove their temporary intent to remain in the U.S. But the H-1B visa and L visa are nonimmigrant visa, and they are the only employment based non-immigrant visa categories where the "dual intent" is recognized by immigration law. 

An H-1B visa holder may petition for Permanent Residency (Green Card), because of the "dual intent" nature of the H-1B visa. An H-1B holder may enter and exit the U.S. at any time, even after a Permanent Residency petition has been filed.

U.S. immigration laws and USCIS (Bureau of Citizenship and Immigration Services) regulations allow the H-1B holder to have "dual intent" with respect to his or her intent to immigrate to the United States. Therefore, an individual seeking the temporary right to work in the U.S. with an H-1B visa may also petition for permanent U.S. residence in the future. One does not preclude the other. This means that H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent to apply for and obtain the U.S. Green Card,  while still being a holder of the H-1B visa. The U.S. immigration regulations recognize the "immigrant intent" for H-1B visa and L visa (including L1A visa and L1B visa). Therefore, H-1B visa holders and L visa holders can apply for immigration visa inside United States, such as:

1) the labor certification application;
2) an immigrant visa application;
3) adjustment of status application;
4) application for H-1B visa or L visa extension after an immigrant visa application.

While dual intent is recognized for H-1B visa, similar exemptions are not available to foreign nationals in or seeking H-2A, H-2B, H-3 or TN visa classifications.

In the past, the employment-based Green Card process used to take only a few years, less than the duration of the H-1B visa itself. However, in recent times, the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries (like India and China) to obtain their Green Cards. Since the duration of the H-1B visa has not changed, this has meant a lot more H-1B visa holders have to renew their visas in 1 year or 3 year increments, to continue to be in legal status while their Green Card application is in process.

3. The Dual Intent for H-1B Visa Application

If a U.S. consular officer finds you are not eligible to receive a nonimmigrant visa under U.S. law, your visa application will be denied, and you will be provided a reason for the denial. There are many reasons a visa applicant could be found ineligible for a U.S. nonimmigrant  visa.

These reasons or ineligibilities are listed in the Immigration and Nationality Act (INA) and other  U.S. immigration laws. Some ineligibilities can be overcome, either by you, the visa applicant, or the U.S. petitioner, in certain immigrant visa cases. Other ineligibilities are permanent. This means that every time when you apply for a visa, you will be found ineligible under the same section of law, unless a waiver of that ineligibility is authorized by the U.S. Department of Homeland Security.

Unlike most other nonimmigrant categories, H visa and L visa cetegories are not subject to immigrant intent provisions of INA section 214(b) - "Did not establish eligibility for the visa category being applied for or overcome the presumption of being an intending immigrant ."  It is referred to as the "dual intent" doctrine. The dual intent doctrine is well known, and it is highly unusual for an H-1B or L-1 visa applicant to obtain an H or L visa denial on this basis alone.

The alien applicant applying for H-1B or L-1 visas in dual-intent categories are allowed to possess the intention to immigrate to U.S. in the future. Thus, the H-1B or L-1 visa application should not have been denied for his or her perceived lack of ties to the home country, or the expectation that he or she may eventually seek to become a lawful permanent resident in the United States.

4. Ability to Change Employers

An H-1B visa holder may change the status to any other nonimmigrant status if he or her is eligible for. An H-1B visa holder may transfer employers easily under the H-1B Portability Act. The alien employee may begin working for the new employer as soon as the new H-1B transfer petition is submitted to USCIS.

The employer and location of employment may be changed during the six-year H-1B status duration, as soon as the new employer files a new H-1B petition on behalf of the alien individual, who is in lawful H-1B status at the time of filing, and has not engaged in any unauthorized employment since his or her last lawful admission.

An alien employee may change employers, and it will not affect his adjustment of status provided he or she has filed an I-485 for at least 180 days, and continues to work in the same or similar position for the new employer.

5. H-1B Worker's Rights

If you are an H-1B worker, you are protected by immigration and employment laws that safeguard your rights as a foreign employee. You also important responsibilities you must meet in order to maintain legal status in the United States. You can learn about your rights and responsibilities in this article.

You have the right to be paid the prevailing wage for your position. The prevailing wage is the normal wage paid to employees in a specific occupation. The wage amount is largely dependent upon the specific location of employment. If your employer pays you less than the prevailing wage, you have the right to inform the Department of Labor (DOL) that your employer is not in compliance with the wage laws, and you may have the right to receive back wages. Importantly, your employer cannot retaliate against you for bringing a complaint against it to the DOL.

You have the right to receive a copy of the Labor Condition Application (LCA) that your employer files with the DOL. The LCA outlines the terms and conditions of your H-1B job and you should retain this document in your records for the duration of your employment.

You have the right to work in a discrimination-free environment. Employers are prohibited from discriminating against H-1B workers on account of the workers’ national origin or immigration status. Your employer must offer you the same benefits, such as stock options, sick leave, insurance, and so on, that are offered to your U.S. citizen and permanent resident colleagues, and your employer cannot require you to work in less favorable conditions solely because you are a foreign employee.

You also have the right for your employer to pay the costs of your return trip home if your employment is terminated before the end date provided on the LCA. The employer must pay these costs regardless of the reason for your termination. However, if you terminate your employment prematurely, the employer is not responsible for paying these costs.

Additionally, you are eligible to bring your family, your spouse and unmarried children under the age of 21, to the United States. Your family can obtain H-4 visas to come to the U.S. as your dependents (or if your family is already in the U.S. in different statuses, they must file an I-539 application to change their statuses to H-4).

Please note that we purposefully state you are 'eligible' to bring your family as H-4 dependents - not that you have the 'right' to do so. The reason for this is because if one of your family members has an immigration inadmissibility issue, such as a criminal conviction or previous unlawful presence, the family member may not be able to obtain an H-4 visa.

6. Your Responsibilities as an H-1B Worker

You are responsible for abiding by the terms and conditions of your H-1B employment by working only for the employer who sponsored you and performing only those job duties outlined in the LCA. You cannot work for a second employer if that second employer does not also sponsor you for H-1B status. It is possible for one worker to have two H-1B employers, but both employers must file H-1B applications for that worker.

You must also maintain lawful immigration status, by not remaining in the U.S. after your H-1B status expires. For this reason, it is important to understand when your status expires (see your I-94 card for the date). If you received your H-1B visa from a U.S. consulate abroad, when you entered the U.S. a border officer gave you an I-94 card. The border officer wrote the date your H-1B status expires on this I-94 card.

It is of the utmost importance that you confirm, at the time you receive the I-94 card, that the border officer put the correct expiration date. Border officers have put the wrong expiration date on I-94 cards, and it is up to you to discover their mistake.

You must either leave the U.S. when your status expires or your employer must extend your status. Your employer files the H-1B extension application with USCIS, the same agency that received your first H-1B application. USCIS must receive the extension application before the expiration of your status in order to approve the extension request. It is not sufficient to merely postmark the application before your status expires. 

7. The Qualification Requirements of Employment Authorization (EAD) for H-4 Spouse

A: U.S. Citizenship and Immigration Services (USCIS) has announced that after May 26, 2015, Employment Authorization (EAD) will be issued to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (Green Card) status. Therefore, qualified H-4 dependent spouses can accept employment in the United States.

USCIS believes that extending the eligibility for employment authorization to certain H-4 dependent spouses of H-1B visa holders is one of ways to improve U.S. visa programs and grow the U.S. economy, and it also provides more economic stability and better quality of life for the affected H-1B families. The eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

    * Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

    * Have been granted H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21) - the Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the 6-year limit on their H-1B status.

The change will reduce the economic burdens and stresses that H-1B visa holders and their families may have, during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into the society of United States. It will also help their
efforts to remain in the U.S., with minimized disruptions to U.S. businesses employing them.  The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

8. How to Qualify the H-4 Spouse Requirement for Work Permit (EAD)?

One eligibility of Employment Authorization (EAD) for H-4 visa spouse is based on the Form I-140 approval by U.S. Citizenship and Immigration Services (USCIS), It is required that the H-1B spouse is the beneficiary of an approved immigrant petition based of I-140 Form.

The approved I-140 petition for the H-1B visa holder can be in any employment-based category, such as employment-based first preference (EB1), second preference (EB2), or third preference (EB3) categories. With an approved USCIS Form I-140 for H-1B visa holder, there is not other requirements from USCIS, such as how much time the H1B worker or H-4 spouse have spent in U.S., or how lang the I-140 petition has been approved.

Another eligibility of Employment Authorization (EAD) for H-4 visa spouse is based on the H-1B spouse's status extension beyond 6-years. If the H-1B visa holder has obtained an H-1B extension beyond the 6-year limit, based on the AC-21 rule, the H-4 spouse is also eligible to apply for an Employment Authorization. The AC-21 rule allows some H-1B visa holders to extend their status beyond the 6-year standard limit in one-year increments.:

    * First, an H-1B worker can extend the visa if the worker is the beneficiary of an approved Form I-140 immigrant petition, and cannot file an Form I-485 Green Card application because the worker's priority date is not current.

    * Second, an H-1B worker can extend the visa if a U.S. employer filed a Labor Certification application (a PERM) or an I-140 petition on the worker's behalf prior to the beginning of the 6-year in H-1B status, as long as that application/petition is still pending, and is at least 365 days prior to the end of the sixth year of H1B status.

The eligibility for these one-year extensions is based on the H-1B spouse being the beneficiary of either a PERM labor certification (PERM) application or an Form I-140 immigrant petition that was filed at least 365 days prior to the end of the 6-year of H-1B status. It is not necessary for the PERM Labor Certification or the Form I-140 to have been approved to extend their status beyond the 6-year standard limit in one-year increments. But, it is necessary for either the PERM Labor Certification or I-140 to still be pending, meaning not having received a final denial or revocation decision.

9. It Is Necessary to Maintain H-4 Status for H-1B Spouse

A common error involves family members who have derivative status, such as spouses or children with H-4 status. Frequently, it is assumed that extending the principal H-1B status automatically extends the derivative status of family members. Unfortunately, this is not the case.

As mentioned, each family member must obtain an extension by filing a request with the USCIS. The status is only extended if such a filing is made and approved with the issuance of new I-94 for each family member. So, H-1B spouse should file the H-1B renew application same as H-1B principal.

The mistake of allowing the H-4 status to expire can have catastrophic results. In the United States, there are harsh penalties for failure to maintain legal status, as well as bars to reentry for those who have extended periods of unlawful presence. Generally, once a person has fallen out of legal status, she or he is no longer allowed to extend or change status without leaving the United States.

This procedure is expensive, inconvenient and can be risky. More importantly, if one has been unlawfully present for more than 180 days, she or he will be barred from reentering the U.S. for three years from the date of departure.


 


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AC-21 Act and It's Impact on H-1B Professionals 
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