Maintaining Your H-1B Status
Things to Know After Your H-1B Petition is Approved.
On January 30, 2024, the USCIS announced that the initial registration period for the Fiscal Year 2025 H-1B cap will be open from March 6, 2024, through March 22, 2024. We recommend you to prepare for the registration now if you have not done so already. We have answered some frequently asked questions about the H-1B visa and lottery process in our previous article, “H-1B Visa and the Lottery (Online Registration).” Please contact us if you have questions about your H-1B petition. In this article, we will discuss some important things H-1B workers should know about maintaining their valid H-1B status. In the following article, we will discuss pathways to obtain permanent residence in the United States (green card) and terminating H-1B employment. Please stay tuned.
Retaining records to show maintenance of H-1B status and periods of stay. One of the most important things about maintaining valid H-1B status is to keep records of your maintenance of status, such as your payroll records. Generally speaking, a foreign individual is allowed to be employed for a maximum of 6 years in H-1B status. Thus, the time spent outside of the United States, for pleasure, business, or otherwise, during an H-1B validity period of stay does not count toward the 6-year limit. Therefore, when traveling outside the United States while on H-1B status, make sure to keep evidence of time spent outside the United States. And you may recapture this time in your future extension. Documents to evidence your physical presence outside the United States may include Form I-94 arrival/departure records, plane tickets, credit card statements, proof of accommodation, etc.
It is important for you to keep a record of your entry and exit dates because the United States borders are going digital and will no longer be issuing entry and exit stamps in passports. After each international travel, remember to save a copy of the online I-94 record. Also, verify the online I-94 record for accuracy after each entry because the online I-94 record will control the length and manner of your stay in the United States.
Amending the H-1B petition when changing job duties, position, or worksite. When there are anticipated changes to your job duties, positions, or worksite, it will be important for you to discuss the changes with an attorney to determine if an amendment is recommended or required. The employer may be required to file a petition to amend the job duties and/or the position when there are substantial changes to the job duties or position. When there is a change to the worksite and the new worksite is located in the same metropolitan statistical area (MSA) as designated in the labor condition application (LCA), an amendment may not be required and the employer may be required to only post the original LCA at the new worksite that is in the same MSA. Whereas when there is a change to the worksite and the new worksite is located outside of the MSA designated on the LCA, the employer may be required to file for a new LCA and H-1B amendment.
An experienced employment-based immigration attorney can help you evaluate the changes to your position and advise you on what to do so that you remain in compliance with the H-1B requirements.
Second jobs and gigs are not allowed. Generally speaking, your H-1B approval is only for a specific position with a specific employer at a specific geographical region for the specific period requested. (On a side note, H-1B workers may work off-site temporarily if certain employment conditions are met. This is beyond the discussion of this article, however, please feel free to contact us if you have questions about your position.) Thus, to maintain your H-1B status, it is recommended that you only perform the described job duties at the designated worksite and do not accept outside employment, unless you have separate authorization such as having another H-1B petition approved for your second employment.
As a general rule of thumb, any activities that you expect compensation in any form should be avoided, such as freelancing, being a Youtuber, and driving for Uber, Lyft, or similar alternatives. Monetizing activities that may not appear to be employment may be viewed as unauthorized employment and have negative effects on maintenance of H-1B status and other immigration benefits. If you have questions about how the rules would apply in your individual situation, we strongly recommend you to speak with an attorney.
Studying is allowed. As long as you are otherwise maintaining your H-1B employment, you do not need to obtain separate authorization to study. You may study on a full-time or part-time basis in a degree or non-degree program.
H-4 Dependents. Family members, including the spouse and minor dependent(s) under the age of 21, may accompany H-1B workers in the United States and be granted H-4 status. H-4 dependents are permitted to study while in the United States. They are not allowed to work, except for under certain circumstances, H-4 spouses may apply for employment authorization. An H-4 dependent spouse may apply for employment authorization if the H-1B worker:
Is the principal beneficiary of an approved immigrant petition (I-140); or
Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21). AC21 allows an H-1B worker to remain and work in the United States beyond the 6-year limit, if the H-1B worker’s labor certification or immigrant petition remain undecided due to lengthy adjudication delays.
Immigration law is an ever-changing area of law; thus, we highly recommend you to work with a legal counsel for the most up-to-date and detailed information. It will save you valuable time and frustration in the process. We are looking forward to working with you in meeting your immigration needs. Contact us.
This article is also available in Traditional Chinese and Simplified Chinese.
Disclaimer: The information on this website is provided for general informational purposes only and is subject to change without notice. It does not, and is not intended to, constitute legal advice. Accessing or using information on this website does not create an attorney-client relationship between you and the Firm, and it is not intended to do so.
