What are the Limitations of H-1B Holders?

• Temporary duration

H-1B status is temporary in nature and may be approved initially for a period of up to three years. It may then be renewed for up to another three years. Thus, the usual duration of an H-1B worker's stay in the United States can reach a maximum of 6 years. After six years of presence in the United States in H-1B status, the individual must depart the U.S. for at least one year before qualifying again for H-1B status. Under the following circumstances, H-1B holders may extend their status beyond the six-year period:

• 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, the USCIS has the discretion to approve or deny such applications.
• A petitioner for EB-1 or NIW classification, whose petition has been filed for over 365 days, may file for an extension of his/her H-1B beyond the six-year limit in one year intervals.
• A petitioner for EB-3 and EB-2 (other than a National Interest Waiver) status whose labor certification was filed for over 365 days may apply to extend his/her H-1B status beyond the six-year limit in one year intervals. For details, please read article on H-1B Extensions beyond the 6-Year Limitation .
• H-1B quota

Currently there is an annual numerical limit/“cap” of 65,000 H-1B visas issued.

• Ineligible to work prior to approval

Unless otherwise authorized to work, employment may not begin until the USCIS has approved the petition. If the alien already holds an H-1B, the alien may begin work for a new employer as soon as the new employer files an H-1B petition on behalf of the employee with the USCIS.

• Spouse & children not allowed to work

The spouse and children of the H-1B visa holder are not permitted to work, unless otherwise authorized by the USCIS.

• No automatic conversion to permanent residence status

The H-1B visa does not automatically convert to a lawful permanent residence status. H-1B status is independent of the Green Card application.

• H-1B visa holders can be laid off at will

Either the employer or the alien may terminate employment at any time for any or no reason at all. As soon as employment is terminated, the H-1Bvisa is technically not valid. However, the USCIS might allow a short grace period of ten days from the date that the alien is fired or laid off. In other words, the alien will generally be able to remain in the U.S. for ten days and must file a change of status during this time. This “10-day grace period” is not an official policy and it is up to the USCIS whether such gap between statuses will be disregarded.

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

The U.S. employer can replace H-1B workers with qualified U.S. workers.  The H-1B employee has no claim to 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, when an H-1B employee is hired, s/he cannot be treated differently from other similarly situated U.S. workers.

For more information on H-1B Visa, please refer on one of the following topics below: