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Q: I am on H-1B status; but have just been laid off by my employer. Can I stay in the U.S. and look for another H-1B sponsor, as my visa is still valid and not expired?
Technically, an individual's last day of employment is his/her last day in H-1B status. Therefore, it is critical to file for a transfer to another employer immediately if one wishes to retain H-1B status. If there is a small gap in the employment, United States Citizenship and Immigration Services (USCIS) may exercise discretion and approve the case - but it’s a discretionary decision dependent on many factors. We highly recommend that anyone in this type of situation contact our office for a consultation with our attorneys to discuss his or her situation in detail.
Q: I am on H-1B visa. I have applied for and received a H-1B approval with a new company. Can I travel outside the U.S.?
Yes, there are generally no travel restrictions on H-1B visa provided that an individual has maintained H-1B status. You may travel outside the U.S. and reenter as many times during the validity period of the H visa. We also advise that the individual carry evidence of employment including a H-1B approval notice, employment letter and recent pay statements.
Q: In what situations can an H-1B holder extend H-1B status at the end of 6 years (H-1B’s maximum period of stay in the U.S.)?
An individual may extend his or her H-1B status for 1 year beyond the 6-year limit if the individual has a Labor Certification/PERM application filed at least 365 days prior to the expiration of the maximum allowed 6 years. An individual may extend his or her H-1B status for an additional period of 3 years beyond the 6 years if he or she has an I-140 immigrant petition approved.
Q: My U.S. employer has applied for my “Green Card” i.e., permanent resident status and I have received my EAD. May I work for another employer immediately?
Yes, technically, you may utilize your EAD card to work for any employer. We generally recommend that you continue to work for your sponsoring employer. However, if your I-485 Application is pending with United States Citizenship and Immigration Services (USCIS) for more than 180 days and your I-140 petition is already approved, you may file to port to another employer if the job duties are substantially similar to duties listed in the original petition. In this situation, you may utilize the American Competiveness in the Twenty-First Century Act (AC21) and port your case to a new employer (provided the new employer is willing to do so).
Q: I am currently a full-time H-1B employee. Can I work part-time with another company after office hours?
You may work part-time (on the weekend or evening hours) but you need to have an additional H-1B approved for that employer for the part-time employment.
The Prevailing Wage issued by the Department of Labor (DOL) determines the minimum salary that the employer must pay to its H-1B employee. . The prevailing wage is based on the job location, job title, duties, education and work experience. The employer may always offer a wage higher than the prevailing wage.
Q: I am a H-1B holder and my spouse just arrived to the United States in H-4 status. Is my spouse eligible to work?
No, individuals in H-4 status are not permitted to engage in employment.
Yes. In addition, with respect to extensions, an individual may file for a H-2B extension but only in one year increments. The maximum period of stay is 3 years. The length of stay in H-2B status is limited by the employer’s ability to prove temporary need for additional workers.
The Department of Labor has determined that there are 4 situations in which there is a temporary need for workers pursuant to the H-2B visa. Therefore, an employer must be able to establish one of the following in order to qualify:
- One time occurrence” - The petitioner is able to establish that the petitioner has not employed workers to perform the services in the past and the petitioner will not need workers to perform these services in the future, or that it has an employment situation that is otherwise permanent.
- "Seasonal need” - The petitioner is able to establish that the services are traditionally tied to a season of the year.
- “Peak load need” - The petitioner establishes that it regularly employs permanent workers to perform services and that it needs to supplement its permanent staff on a temporary basis due to a seasonal or short term demand and that the temporary additions.
- “An intermittent need” - The petitioner demonstrates that it has an occasional need for workers, from time to time but not on a regular basis.
To participate in the H-1B program, one must be 18 years or older. A temporary labor certification application must first be filed with the Department of Labor 60 days prior to the time needed. Thereafter, the United States Citizenship and Immigration Services (USCIS) currently takes approximately 60 days to process the H-2B visa. Please note that processing times frequently vary.