There’s a reason the H-1B visa is so popular among the various nonimmigrant visas available through U.S. Citizenship and Immigration Services (USCIS). The benefits enjoyed by petitioning employers and alien beneficiaries are numerous.
We consolidate and examine advantages redounding to the benefit of foreign national workers in three categories: work, family, and future.
Alien employees enjoying H-1B status have legal authorization to work in the U.S. in a “specialty” occupation position for a maximum of six years. But there’s more to the H-1B than mere ability to work for that duration of time.
A specialty occupation worker is allowed to receive an income from an employer. Moreover, H-1B beneficiaries can earn money from more than one employer, as immigration law permits one alien employee to be the beneficiary of multiple H-1B petitions.
Workers with H-1B status aren’t necessarily wedded to the first employer that successfully petitioned for an H-1B visa. According to the portability rule of the American Competitiveness in the Twenty-First Century Act (AC21), an alien employee who’s been in valid H-1B status previously, including even for the maximum of six years, can work for a different employer as the beneficiary of its H-1B petition. The alien worker doesn’t even have to wait for the underlying Form I-129 to be approved to begin working for his or her new sponsoring employer. (For more information on the portability rule, refer to our article here.)
There’s only one stipulation regarding the number of hours H-1B workers are required to be employed per week, and it’s relatively modest: 50 percent of the number of full-time hours typical of the industry to which the relevant specialty occupation belongs. So if an H-1B worker is a software engineer, and software engineers have an average full-time work week consisting of 40 hours, then as long as the worker has satisfied all other H-1B requirements, he or she could work a 20-hour week. To tie this advantage to the above two, such a benefit allows for an alien worker with concurrent H-1Bs to have more than one job. And in this situation, there is no set number of hours that the beneficiary must work for each employer.
Whether it’s to deal with an illness or simply go on a vacation, H-1B employees are permitted to take extended leaves of absence from their jobs without losing their status. Of course, an H-1B beneficiary taking a three-month vacation to the Virgin Islands won’t be paid during the time off.
Granted, it may be a very accommodating sort of employer that would allow its H-1B worker to take such extended leaves from work. On this note, it’s important to reiterate the power H-1B employers have over their alien workers’ job security. Employers are able to terminate employment at any time and for any reason (even for no reason at all). Once an H-1B beneficiary’s employment is terminated, then the alien loses H-1B status immediately. As a result, the alien would need to file for a change of status as soon as possible, assuming he or she were to want to remain in the U.S. Contrary to popular belief, there’s no so-called 10-day “grace period” upon an alien’s loss of H-1B status. (That said, in practice, it’s often the case that USCIS turns a blind eye to H-1B employees who are out of status for fewer than 10 days.)
Alien employee’s rights
The above discussion provides a perfect segue into the other side of the dynamic: an H-1B employee’s rights over his or her employer. As ordered by the U.S. Department of Labor (DOL), H-1B employers are prohibited from benching their H-1B workers. “Benching” refers to an employer forcing a worker to take an unpaid leave of absence in light of issues like slow business growth. In short, if an employer’s business is experiencing a decline, the employer is obligated either to continuing paying its H-1B worker(s) at the approved rate or to terminate employment.
Perhaps a simpler way to put it: the only way an employer can stop paying wages to an H-1B worker is by initiating a bona fide termination of the employee.
In addition to the financial and other work-related benefits, which are specific to the alien worker and his or her specific job, the H-1B visa’s benefits also redound to the qualifying family members of these foreign employees.
Spouses and children can’t work without authorization
With an H-1B visa, you can bring your spouse and children under the age of 21 with you to live in the United States. If their application is approved, they will be issued an H-4 visa. Unfortunately, the H-4 visa does not itself allow holders to work, although they can apply for an employment authorization (EAD) from USCIS. It does, however, allow holders to attend school or university. However, it is important to note that the Trump administration has indicated that the H-4 EAD may be in jeopardy, and many in the immigration community believe officials will take steps to eliminate it. Keep an eye on our news section for new information regarding this topic.
Additionally, these family members can reap the benefits of their time in the U.S. With valid H-4 status, H-1B dependents are permitted to attend schools on either a part- or full-time basis.
Further, H-1B beneficiaries themselves are permitted to attend schools without having to obtain F-1 visas first, provided they continue to retain valid H-1B status by concurrently working for their sponsoring employer. The caveat to this benefit is that an H-1B worker can’t receive compensation for, say, being an assistant teacher, as such employment would require a change of status from H-1B to F-1. If H-1B employees discontinue their employment in order to pursue education in the U.S., they’ll lose their H-1B status and have to apply for F-1 (or equivalent) status.
No foreign residence? No problem.
H-1B visas permit what is referred to as “dual intent.” In short, this means that an H-1B employee is eligible to apply for permanent resident status (and even naturalization) without running the risk that his or her permanent residency application will be denied. Some temporary visas can be denied if the authorities believe that an alien plans to pursue permanent residency, and immigration officials will also deny permanent residency applications if they believe that the alien misrepresented his or her immigrant intent when applying for a previous temporary visa. However, an alien’s immigration intent is not a factor when obtaining an H-1B visa or when applying for permanent residency after having had an H-1B. Accordingly, there’s no requirement for an alien worker to maintain a foreign residence, which is the case for several other temporary visas.
Though six years is the maximum amount of time allowed for H-1B status (aside from the caveats discussed above), it doesn’t have to be the case that expired H-1B status is essentially a one-way ticket out of the U.S.
Duration of status
In fact, there’s an exception to the “maximum of six years” of having valid H-1B status. Two situations can lift the six-year maximum duration.
If an H-1B visa holder is the beneficiary of a PERM application and has filed either a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) or a Form I-140 petition with USCIS 365 days prior to the six-year anniversary of the start of his or her status, and the PERM or I-140 application is filed and the application is pending, then the H-1B visa holder is eligible to extend his or her status on a per-year basis. Moreover, there is no limit on the total number of years an H-1B visa can be extended in this way, so long as one of the petition processes is still ongoing.
If an H-1B visa holder has an approved I-140 petition but an immigrant visa number is not available to him or her if there is a worldwide backlog, rendering the alien ineligible to file a Form I-485 petition, then the H-1B visa holder may extend his or her H-1B status in three-year intervals beyond the six-year limit.
For more information on extending H-1B status beyond six years, click here.
Parlaying H-1B status into permanent residence
Because immigration law allows H-1B beneficiaries to have “dual intent,” nonimmigrant alien workers with H-1B status will not be hindered in their petition for permanent residency due to their temporary status. Being the beneficiary of the H-1B visa does not preclude becoming a legal permanent resident of the U.S.
Further, if an alien employee changes employers while in H-1B status, such a change won’t affect his or her adjustment of status, provided three conditions are met:
The alien has filed a Form I-485 petition.
Said petition has been pending for at least 180 days.
And the alien continues working in the same or a related field with the new employer as it did with the previous employer.
For additional details on this subject, click here.
Starting (and potentially working for) your own business
To start one’s own business in the U.S., a person doesn’t have to be a citizen or legal permanent resident. In fact, foreign nationals can start and, with USCIS authorization, work for their own companies.
The potential long-term benefits of starting a business are self-evident, but this advantage also has relevance in the context of presently held H-1B status. In some situations, an alien’s own company may be permitted to apply for an H-1B visa for the alien owner him- or herself. As is standard, USCIS will require proof that the business will pay the alien the prevailing wage, but on top of this, additional requirements include:
-In other words, for H-1B purposes, an alien cannot simultaneously be employer and employee at his or her own company. Accordingly, because an employer-employee relationship is at the heart of an H-1B visa, the alien’s company must have an independent person of authority who has the power to hire, pay, supervise, and even fire the alien.
When considering such an arrangement, USCIS scrutinizes the ability of the alien’s company to pay and the company’s real business needs. Ultimately, starting your own company doesn’t unconditionally mean you can work for it, but assuming USCIS approves and you have valid work authorization, then this advantage is more plausible than just possible.
Our experienced immigration attorneys are here to guide professionals through the complicated H-1B application process, and minimize any and all confusion or challenges. We understand how important an H-1B visa is to you, whether as the employer or the prospective employee. Our seasoned staff and years-long track record of success make Zhang & Associates the natural choice to facilitate your H-1B petitions.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
General H-1B Topics