General Questions about H-1B Visas and I-140 Portability

How many H-1B visas are available annually?

Currently, a total of 65,000 H-1B visas plus an additional 20,000 H-1B visas available to holders of master’s degrees from U.S. institutions of higher education are awarded by the USCIS each year.

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How long is an H-1B usually valid for? Can I renew it?

An H-1B visa is initially available for three years, renewable for a total of six years. Thereafter, one must leave the U.S. for one full year before reapplying for H-1B status. Alternatively, if steps toward permanent residency have been taken, H-1B status may be renewed in one or three year increments depending on various factors related to the labor certification and/or permanent residency process.

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When must I apply for an H-1B visa in order to make the cap?

H-1B petitions can be filed up to six months prior to the requested start date. In the case of a cap-subject H-1B petition, it may be filed upon certification and execution of the underlying Labor Condition Application. Such certification can be obtained from the Department of Labor as April 1st of each year based on a fiscal year or October 1st start date. Accordingly, we recommend filing a cap-subject H-1B petition as close to April 1st as possible given the particular circumstances of a given case.

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If approved, when can I start work on my H-1B visa?

In the case of a first-time H-1B classification, one may commence employment with the authorized employer only after the petition has been approved and the validity date of the petition is current (as notated on the approval notice). In the case of a cap-subject H-1B, the above considerations apply and under current law, the validity date may not predate October 1st. October 1st is the first day of the new fiscal year and that is the date from which each annual cap runs. In contrast, the beneficiary of a cap-exempt first time filing H-1B petition may commence employment with the authorized employer at any time during the year so long as the petition has been approved and the validity date of the petition is current.

In the case of an H-1B transfer petition, one may commence employment with the authorized employer upon the filing of the transfer petition, subject to case specific considerations including, but not limited to, maintenance of status, prior validity dates, etc. Consultation with a licensed immigration attorney is recommended to determine eligible start dates for H-1B filings and cap-related strategies.

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Can I apply for my Green Card while in H-1B status if my employer wants to employ me permanently?

Yes, you may pursue labor certification and/or permanent residency while in H-1B status because H-1B visa holders are entitled to benefit under the “dual intent” doctrine. Under this provision, one is entitled to maintain the “nonimmigrant” visa status of H-1B classification while simultaneously pursuing permanent residency status. In fact, pursuit of labor certification and/or permanent residency is required in cases where one wishes to extend his or her H-1B status beyond the six years permitted under statute.

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Can I change jobs while working on an H-1B visa?

Yes, you may change employers while in H-1B status so long as your new employer files a transfer petition prior to your commencing employment with the new employer. Regulations permit H-1B visa holders to begin work with a new H-1B employer as soon as the new application is filed, rather than waiting for approval of the new petition, as is required in the case of first time petitions.

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I have a Green Card application pending through my job. Can I change employers and still get my Green Card?

Whether a change in employer will impact your green card application depends on many factors and consultation with a licensed immigration attorney is highly recommended if you are considering such a change. If you have reached the I-140/I-485 stage of the permanent residency process, you may be permitted to “port” or transfer employers under the American Competitiveness Act of the 21st Century Act (AC-21). This law as passed by Congress late in 2000 allows for "porting" or transfer of I-140 immigrant petitions in limited circumstances. Specifically, if the I-140 Petition for Alien Worker has been approved and the I-485 Adjustment of Status Application has been pending for at least 180 days, the employee may switch employers as long as the new position is “substantially similar” to the position for which the labor certification and I-140 were approved. Please note, the USCIS looks very closely at “portability” cases, and thus we strongly recommend consulting a licensed immigration attorney prior to accepting any new job offer so that your options and potential risks may be fully evaluated.

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THE LAW OFFICES OF DAVID E. PIVER

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