Common questions on H-1B filing, extensions beyond 6 years, change of employer, the 60-day grace period, and I-140 / I-485 implications. For general information only — please book a consultation for case-specific guidance.
The exact documents depend on the case and should be reviewed by counsel. At a minimum, an H-1B filing includes: (1) a support letter explaining why the position qualifies as a Specialty Occupation and why the beneficiary qualifies; (2) a Department of Labor–certified Labor Condition Application (LCA); and (3) the beneficiary's personal immigration documents and educational/work-experience evidence.
Yes. The employer must pay at least the «required» wage, which is the higher of the prevailing wage or the actual wage paid to similarly situated employees. The prevailing wage is set by occupation and geographic area; the DOL publishes a weighted average for similar workers in the same area.
A foreign national in the U.S. can obtain a different nonimmigrant status in two ways:
(1) File a change of status with USCIS while in the U.S., or (2) After USCIS approves the petition, apply for the visa at a U.S. consulate abroad and re-enter in the new status.
Generally the petitioning employer can request a change of status to H-1B on Form I-129 so you do not have to leave the U.S. To qualify, you must have:
(1) Lawfully entered the U.S. in nonimmigrant status, (2) Continuously maintained that status, and (3) Not violated the conditions of your current status.
Some nonimmigrant categories are not eligible for change of status — consult counsel.
If your employer cannot file the I-129 before your current status expires, you typically need to obtain an H-1B visa stamp at a U.S. consulate abroad after USCIS approves the petition, then enter the U.S. in H-1B status.
Generally up to 6 years. The 6-year cap is measured by time physically spent in the U.S. in H-1B status, so the holder can spend at least 2,190 days. Common exceptions extend this limit (see below).
Yes — if otherwise eligible, the new H-1B may still be filed for up to 3 years. Subtract the days previously spent in the U.S. in H-1B status from the 2,190-day cap. If the remainder is less than 3 years, the new employer can only request the remaining time.
Under H-1B portability, you may begin work for a new employer as soon as the new employer files a non-frivolous H-1B petition on your behalf, or on the start date listed in the petition (whichever is later). You don't need to wait for the new petition to be approved. Confirm the rule applies to your situation with counsel.
If the new employer's I-129 is approved, you may continue working for the new employer until the employment end date specified in the petition.
If the I-129 is denied, you may continue working for your previous employer if your prior authorized employment is still valid, but the temporary work authorization based on the new petition ends when the new petition is denied.
Many nonimmigrant workers don't realize they have options beyond leaving the U.S. within 60 days. If you are terminated (voluntarily or involuntarily), you may take any of the following actions (if eligible) to maintain authorized stay:
• Apply to change to another nonimmigrant status (e.g., B-1/B-2 or F-1); • Apply to adjust to permanent resident status (green card); • Apply for a compelling-circumstances EAD; • Become the beneficiary of a non-frivolous change-of-employer H-1B petition.
If you take any of these actions within the 60-day grace period, your authorized stay (per I-94) may extend beyond 60 days even though you have lost your prior nonimmigrant status. If you take no action during the grace period, you and your dependents may need to leave the U.S. within 60 days or by the end of your authorized stay, whichever is shorter.
Regulations allow workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status (and their dependents) up to 60 days after employment ends — voluntarily or not — or until the end of the I-94, whichever is shorter, to be considered as continuing to maintain status (the «up-to-60-day grace period»). See 8 CFR 214.1(l)(2). Eligible H-1B workers can begin work for a new employer immediately upon a new H-1B filing during this period, without waiting for approval.
The up-to-60-day grace period begins the day after employment terminates, generally based on the last day wages were paid.
Yes — provided you still intend to depart after any approved temporary stay and continue to maintain a foreign residence you do not intend to abandon, a pending or approved I-140 should not affect your change-of-status application.
When a new employer files an I-129 to change your status to H-1B with a Premium Processing request, USCIS generally processes the pending I-539 and the I-129 within the premium-processing window and adjudicates them together.
If the original H-1B petition is still valid and you are rehired into the same position, you may resume work without further action. If you are rehired into a new or materially changed position, the employer may need to file an amendment or new petition. If the employer notified USCIS of termination — automatically revoking the petition — a new I-129 must be filed.
You may use the up-to-60-day grace period at most once during each approved I-129 validity period. For example, if Employer A terminates you, USCIS may exercise discretion to grant up to 60 days. If you then receive a new H-1B approval with Employer B and are later terminated, you may again be eligible for up to 60 days during Employer B's I-129 validity period.
Once you leave the U.S., the grace period ends. To re-enter during the up-to-60-day window you must use a valid nonimmigrant visa.
Yes — if your spouse holds an EAD or status-based work authorization, that work authorization continues to be valid during the up-to-60-day grace period.
If you are terminated while abroad and the employer gives no notice period, or the notice period ends before you can return, the grace period does not apply — you must seek another nonimmigrant entry. If you do return before the notice period ends (i.e., before the effective termination date), the grace period may apply on a discretionary basis.
Your employer can file Form I-129 to request extensions beyond 6 years in specific situations.
For example, if before the 6-year cap your employer filed a PERM with DOL or an I-140 with USCIS more than 365 days ago, you may extend H-1B status. USCIS can approve extensions of up to 1 year on this basis.
More commonly, if your employer filed an EB-1, EB-2 or EB-3 petition, you are eligible to adjust to permanent residence, but the visa is unavailable per the State Department Visa Bulletin, your employer can request an extension beyond 6 years. The employer must show that the immigrant visa was unavailable at the time the H-1B was filed. USCIS can approve extensions of up to 3 years on this basis.
No. The regulations authorizing H-1B extensions beyond 6 years apply to individuals who currently hold OR who previously held H-1B status.
For example, if you previously held H-1B for 6 years and could not extend at the time, then changed to O-1, and during your O-1 an EB-1/2/3 I-140 was approved but the visa is unavailable based on your priority date, your employer can file an I-129 requesting a 3-year H-1B extension. The petition can request a change of status if you remain in the U.S. and meet other change-of-status requirements, or the employer can request consular notification. USCIS-approved petitions requesting consular processing are forwarded to the State Department; after review the U.S. consulate may issue a visa for entry.
Only time physically spent in the U.S. in H-1B status counts toward the 6-year cap. Periods abroad longer than 24 hours — known as «recapture» time — do not count. You are eligible to recapture this time. It is the employer's responsibility to request and document recaptured time. Supporting documentation includes passport stamps, I-94 entry/exit records, U.S. CBP travel history, airline tickets and boarding passes, and a schedule of dates outside the U.S.
Only beneficiaries who continue to maintain nonimmigrant status can request a change of status. If you depart the U.S. while your change-of-status request is pending, USCIS treats the change-of-status request as abandoned.
If USCIS approves the I-129, the approval is issued as consular notification and does not grant H-1B status. You typically need to obtain an H-1B visa stamp at a U.S. consulate abroad and apply for entry through CBP.
For an Extension of Status, you must be in the U.S. at the time the petition is filed. However, if you depart the U.S. while an H-1B extension is pending, this is not generally a basis to deny the extension. The employer can request that USCIS send the approval notice to the consulate where you'll apply for the visa.
H-4 dependents do not automatically receive work authorization. Only H-4 dependents who file and obtain work authorization from USCIS may work, and only certain H-4 spouses are eligible. Eligible H-4 spouses include those whose H-1B principal is the beneficiary of an approved I-140 (employment-based green card petition), or those whose H-1B principal received H-1B status beyond 6 years based on PERM or I-140 filings older than 365 days. Eligible H-4 spouses can file Form I-765.
H-4 dependents are generally tied to the H-1B principal's status period. If the principal receives an extension beyond 6 years, the H-4 dependents may extend H-4 status for the same period. Time spent in H-4 status does NOT count toward the 6-year H-1B cap, so even if someone has spent 6 years in H-4, they may still receive 6 years of H-1B.
No. As an F-1 on OPT, you do not need to obtain H-1B status before your employer files an I-140. Nonimmigrant status is generally for temporary purposes (e.g., study or short-term work), with intent to depart at the end of the authorized stay. F-1 status requires intent to depart and a foreign residence you do not intend to abandon. However, you can simultaneously be the beneficiary of a pending or approved I-140 and still demonstrate intent to depart if necessary.
A pending I-485 (adjustment of status) does not provide lawful nonimmigrant status and does not cure prior status violations. However, if you filed the I-485 while in H-1B status, generally — even if H-1B expires while the I-485 is pending — as long as you have not engaged in unauthorized employment or become inadmissible, this typically does not cause loss of adjustment eligibility.
From the moment your I-140 is approved:
1. Priority date retention: your priority date is generally locked in for use with later I-140 filings (priority date retention). You only lose your priority date if the I-140 approval is revoked for reasons such as employer error, fraud, or willful misrepresentation of a material fact.
2. H-1B extension: if you otherwise qualify for H-1B status, the I-140 approval may serve as the basis for extending H-1B beyond the 6-year cap — typically up to 3-year extensions.
3. Spouse's EAD: if your spouse is in or seeking H-4 status, they may be eligible for an EAD.
4. Withdrawal within 180 days: if the employer withdraws the I-140 within 180 days of approval, USCIS is obligated to automatically revoke the I-140 approval. You don't lose your priority date, but you'll need a new I-140 to extend H-1B beyond 6 years and to ultimately adjust status.
However, if your I-140 has been approved for at least 180 days, withdrawal does NOT cause USCIS to automatically revoke the approval. You retain the approved I-140 and remain eligible to extend H-1B beyond 6 years if otherwise qualified. USCIS will only revoke I-140 approval for cause (e.g., employer error, fraud, or material misrepresentation).
Porting: once your I-485 has been pending more than 180 days, you can «port» the I-140 job offer to a new job (same or different employer) provided the new job is in the «same or similar» occupational classification. The new employer does not need to file a new I-140, though you'll need to file a Supplement J to request porting.