There are numerous benefits to filing an H-1B petition. These include:
- Permission to work in the U.S.
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.
- Multiple year duration
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 (or H-4) holder is a cumulative six years.
H-1B status holders can extend their stay beyond the six-year limit in the following 2 situations:
- If the H-1B holder has filed either a Labor Certification application or an I-140 petition 365 days before the expiration of the six-year limitation, and the LC or I-140 process is still pending, the H-1B visa holder may extend his or her H-1B on an annual basis beyond the six-year limitation. There is no upper limit on total years of H-1B extensions under such circumstance as long as the immigration process is still ongoing.
- If an H-1B visa holder has an approved I-140 petition AND an immigrant visa number is not available to him/her due to visa retrogression (not eligible to file I-485 due to visa number issues), the H-1B visa holder may extend his/her H-1B in three-year intervals beyond the 6-year limitation. There is no 365-day requirement in this circumstance.
The specialty occupation worker is allowed to receive an income from the employer.
- No need to maintain a foreign residence
By law, H-1B visas allow dual intent. With the H-1B visa, there is no need for an alien worker to maintain a foreign residence, as opposed to many other temporary visas.
- Ability to change employers during H-1B status
Under the “portability rule” of the “AC 21” Act, an H-1B worker who has been in H-1B status in the past 6 years can start to work for his/her new employer as soon as the new employer files a new H-1B petition on behalf of the alien. For details, please refer to our article “H-1B Portability Rule.”
- Ability to change employers during the Green Card application process
An alien may change employers and it will not affect his/her adjustment of status, provided that he/she has filed an I-485 that has been pending for at least 180 days and he/she continues to work in the same or related field for the new employer.
- Spouses & children welcome
Spouses and children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1B status holder’s authorized duration of stay.
- Dependents permitted to attend school/college
An H-1B visa holder’s spouse and/or children under twenty-one years of age are permitted to attend school based on their H-4 status either on a part-time or full-time basis.
- H-1B visa holders permitted to attend school/college
An H-1B holder is allowed to go to school part time or full time without an F-1 visa as long as he/she maintains a valid H-1B status. This means that while the H-1B employee is attending school, he/she must continue to work for his/her employer.
The H-1B employee is not able to receive a teaching assistantship or compensation from his/her school, as that would require a change of status from H-1B to F-1. If the H-1B employee discontinues employment with his/her employer to pursue further education, he/she will lose H-1B status and must apply for F-1or equivalent status.
- Ability to have multiple employers
It is possible to be the beneficiary of multiple H-1B petitions because you are allowed to work for more than one U.S. employer.
- Part-time H-1B status
One can apply for part-time H-1B status. As long as your work hours are at least 50% of the normal full time hours in your industry and you satisfy all other requirements for an H-1B, you are eligible to receive a part time H-1B status. If you have H-1B status already, you can be the beneficiary of a concurrent H-1B for another part time job. In this situation, there is no set number of hours that the beneficiary must work for each employer.
- Dual intent/opportunity to petition for future permanent residence
Immigration laws and USCIS regulations allow the H-1B holder to have “dual intent” with respect to his or her plans to immigrate to the United States. Therefore, an individual seeking temporary employment in the U.S. via a nonimmigrant H-1B visa may also petition for permanent U.S. residence through an immigrant petition. One does not preclude the other.
- Possibility to create one’s own business and hire self as an employee
You do not need to be a U.S. citizen or legal permanent resident to start a business in the U.S. However, whether an alien may work for his own company is another matter. You need authorization from the USCIS to work for any company, including yours.
In some limited situations, an alien’s own company may apply for an H-1B for the alien. The USCIS will want to see that the new company will be able to pay the H-1B worker at least the prevailing wage, as well as business plans, a business lease, and other documents proving that it is in fact a real company. There must be an authority inside the company apart from the alien which will be the bona fide employer. The alien cannot be both an employer and an employee in his/her own company for H-1B purposes. Since an employer-employee relationship must be established for H-1B status, it is necessary that the alien’s company have independent authority to hire/pay/supervise/fire the alien.
Two key factors the USCIS will scrutinize are 1) the ability to pay and 2) the real business needs. Forming your own company does not automatically mean you can be employed by it. In order to work at your own company as an employee, you still need valid work authorization to work in the US.
- Benching H-1B holders is illegal
According to the Department of Labor, benching H-1B employees is not allowed. If business is slowing down or the H-1B employees have no work to do, the employer must continue to pay the H-1B employee for his/her wages or terminate the employment.
In other words, the only way an employer can stop paying an H-1B wages is by a bona fide termination of the employee.
- Ability to take extended leave/vacation without losing status
H-1B employees may take long unpaid leave without having their status affected. Keep in mind that if a leave is taken, the H-1B holder will not be paid. Furthermore, the employers may terminate employment at any time for any or no reason at all. If employment is terminated, the alien is out of H-1B status immediately. Contrary to a popular misconception, there is no so-called “ten-day grace period.” However, in practice, an H-1B employee who is out of status for less than ten days would have a reasonable likelihood of having this out of status period disregarded by the USCIS. As a result, upon termination by the prior employer, the alien must file for a change of status as soon as possible if he/she wishes to remain in the United States