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H1b Visas and Beyond...Next step Residency!

(March 2014)
by Desmond P. FitzGerald
Dear friends,
Recently we sent a newsletter on the topic of H-1B visas (Specialty Occupation Work
Visas), for professional employees with a minimum of a 4 year college degree and an
employer willing and able to sponsor them (click here for Part I of this newsletter).
These visa applications will start being accepted by the USCIS on April 1st, 2014, for the
visas that will be issued later this year on October 1, 2014. Acting fast is essential, as it is
expected that all the visas will be used up on April 1st and it takes several weeks to get the
Labor Certification approved.
If you or your employer needs help with the filing of an H1b visa application, or you
already have an H-1b visa and are interested in becoming a U.S. legal permanent
resident (LPR), please call our office as soon as possible and make an appointment (617-
523-6320, ext. 0). For your information, we wanted to share with you some responses to
questions people generally have about H1b visas and moving down the path towards U.S.
residency and citizenship. Please forward this information to anyone you think may find
it useful.
Is there a benefit or preference for an H1b visa if I have a Masters degree
that I obtained in the US?
What are the responsibilities of my employer?
How long does the H1b visa status last?
How many times can I renew my H-1B visa?
How soon can I apply for a Green Card after I receive my H1b visa?
Can my H1b visa be transferred to another employer?
What is the 7th year extension for an H-1b visa?
What is my status while my first H-1B visa application is pending?
How many times can I change employers under my H-1B visa status?
How long do I have to leave the country after my H-1B visa status expires or
I lose my job?
1. Is there a benefit or preference for an H1b visa if I
have a Masters degree that I obtained in the US?
There are 20,000 additional H1b visas for individuals who obtained a Masters degree in the
U.S. If one of the 20,000 visas is not available for the individual, then the person will
automatically be moved to the 65,000 bachelor degree visa group and be eligible for
selection again.
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2. What are the responsibilities of my employer?
The employer must comply with the conditions identified in the H-1B petition, specifically
regarding salary, position, job duties, and location of work site. If there are any material
changes to the conditions set forth in the H-1B visa petition and the supporting LCA, the
USCIS and/or the Department of Labor should be notified. In addition, employers have the
responsibility to keep employment/salary records and pay a portion of transportation costs
for the H-1B employee to return to his/her country if employment is terminated by the
employer.
For a full list of employer obligations visit: H-1B Visa
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3. How long does the H1b visa status last?
Generally, H-1B status lasts 6 years. However, time spent outside the U.S. or non-working
time during an H-1B transfer procedure does not count towards the 6 years. Also, if a
residency petition or LCA/PERM petition was initiated prior to the first day of your 6th year,
under the AC21 law, you may qualify for a 7th year extension and that 7th year extension
may be renewed.
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4. How many times can I renew my H-1B visa?
Generally an H-1B visa may be renewed as often as is necessary for the individual to
complete the 6 years allowed by the H-1B visa law. An individual may be eligible for
additional extensions pursuant to the AC21 law (an LCA/PERM process must have been
initiated), given that all the requirements are met.
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5. How soon can I apply for a Green Card after I
receive my H1b visa?
H-1B visas are a dual intent visa (non-immigrant and immigrant intent) and therefore you
may apply for your residency as soon as you receive approval for your H-1B visa.
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6. Can my H1b visa be transferred to another
employer?
Pursuant to the AC21 law, an H-1B visa holder may transfer his/her H-1B visa to a new
employer by having the new employer file a new H-1B application. The H-1B holder may
begin working for the new employer as soon as the application has been filed (prior to
receiving approval of this application). However, if the H1b transfer is not approved the
original H-1B visa will be lost. It is therefore recommended to complete the transfer before
starting work for the new employer.
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7. What is the 7th year extension for an H-1b visa?
Under the law AC21, an individual may extend his/her H-1B visa beyond 6 years, for what is
commonly knows as the 7th year extension, so long as the individual has:
1). An LCA (Labor Condition Application) filed prior to the beginning their 6th year on the
H1b visa, and
2). This LCA is pending, or if it has been approved, there is a related I-140 (employment
residency petition) pending, or an I-140 approved related to the specific LCA that was filed
before the 6th year of the H1b visa.
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8. What is my status while my first H-1B visa
application is pending?
Your status continues to be the status you had at the time that you applied. If your non-
immigrant status expires while the H-1B application is pending and there is a visa
immediately available to you, then your status will be "an applicant for a non-immigrant
visa" and you are permitted to remain in the United States until a decision on your
application is made. However, if there is not a visa immediately available, then the visa
application does not provide any "status" while it is pending, unless you were on an F-1
status or OPT (Optional Practical Training) and you filed an H-1B application timely (during
the H-1B acceptance period, while the students authorized duration of status (D/S)
admission was still in effect), in this case, your F-1/OPT status and work authorization (if
previously granted), would be extended until a decision is made on your application.
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9. How many times can I change employers under
my H-1B visa status?
There is no numerical limitation to the number of transfers an H-1B visa holder may apply
for. There are, however, validity periods. For example, the initial H-1B validity period is 6
years. After that, an individual may leave the U.S. for a period of time and then begin a new
6 year period, or in the alternative, may be eligible for 7 year extensions indefinitely, under
the AC21 law, given all requirements are met (i.e. an LCA/PERM process was initiated).
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10. How long do I have to leave the country after my
H-1B visa status expires or I lose my job?
H-1B visas do not have any extension period during which an individual may depart the
United States and therefore you should depart immediately after your visa expires or you
lose your job. There are other visas that contain an automatic departure period. For
example, an F-1 student visa contains an automatic 60 day departure period. However, H-1B
visas do not. Also, H-1B visas become invalid upon the termination of employment or non-
compliance with the conditions of the H-1B visa (i.e. salary, position, duties, etc.).
For more answers to Frequently Asked Questions about H1b visas and other US
immigration processesplease click on the appropriate link.
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Sincerely,
Desmond P. FitzGerald and
The FitzGerald & Company team
Read previous newsletters